Concerns regarding the absence of proper rationale/justification supporting the DT's recommendation
When one reads the unofficial status report of the Drafting Team, one inevitably wonders:
How did the "developing of policy advice based on the global public interest" came to mean "develop[ing] policy advice for permanently protecting the Olympic and Red Cross names at the top and second levels of an expanded domain name system"?
While I understand the need that the GNSO and the GAC have to work together, preferably in a manner suggesting that the collaboration be repeatable and that it would engage both parties' good faith, there still need to be a sound rationale/basis put forth for the any of these body's output, couched in a "global public interest" language, for the foundation of this advice-making dialogue to be both constructive and legitimate.
Logical hiatuses of the /non sequitur / or///ignoratio elenchi /variety (e.g. in this case, gNSO ignored the question of the proper policy advice which would purport to best serve global public interest by implying peremptorily that the GAC's preferred solution was, without justification or rationale, the only conceivable one) are not sound dialogue foundations for GAC-gNSO relationships going forward. The ease with which GAC's views are seemingly forced upon gNSO without so much as an attempt at generalized justification for the reservation of the strings does not bode well for future GAC-gNSO relationships. Nor are they sound internal gNSO practices to entrench. In due term, especially with actors that have recurring interactions, they are inevitably counterproductive and deleterious.
There is no record of a mandate or community recommendation to the effect that the need to develop joint GAC-gNSO policy advice to the board necessitates incorporating language into the guidebook that would purport to "implement permanent protection" of submitted strings in the top and second level domains. But "implementation" is casually dropped two times in the unofficial status report, both times in a rhetorical manner. While it might have been the opinion of some in the drafting team that such was the proper policy road to take, this un-justified determination cannot be thought to be an adequate substitute for bottom-up gNSO recommendation processes.
Given the high level of opposition to the opinion that seem to be that of some in the drafting team, at least with regard NCSG, it is the council's responsibility to not /ignore what other policy-advice there could logically be/ (the /ignoratio elenchi/ error) with regard the task that the Board entrusted the gNSO. The unofficial status report half-concede for half a sentence the possibility that there could be other policy advice possibilities that would best serve the global public interest. It could not hide the n/on sequitur/ nature of its stance for a full 6 pages.
The presumption that the /ignoratio elenchi /is an acceptable way to go about debating in the gNSO, perhaps for what are thought to be pragmatic purposes, is a misguided one. Time constraints are a valid concern, and the decision to focus on only the top level at this time is a wise and pragmatic one, a decision that should not eschew proper consideration of the substantive issues at stake.
Sidestepping the debates is no way to obtain a consensus, rough or otherwise. Never once were the GAC justifications to the effect that the entities in question deserved special status debated on in the gNSO community or in joint manner with the GAC. If they would have been debated, it could have been shown that the list of strings for which a special status is sought would be deserving of such status or not, and sound rationale could have been provided with regard whatever policy advice gNSO would have felt entitled to negotiate with the GAC and recommend to the Board.
Some other important substantive axis could have been discussed and debated internally that could have borne an impact on the nature of gNSO-GAC negociation and ultimately, joint advice to the Board. It could have been shown for example that GAC-gNSO historic relationships needed mending, needed special nudging, needed careful consideration of the laying down of dialogue foundations, or other such considerations.
While the stakeholder groups and constituencies of the gNSO are in part composed of passionate people with diversified interests, it is not the belief of this commenter that they collectively hold no wisdom or that they can not be convinced to water-down some principled positions on the behalf of the Supporting Organization's unity going forward. The refusal to engage issues is deleterious to the gNSO itself, and to the relationship it purportedly seek to establish or mend with the GAC and/or the Board. It sets itself squarely on a track that invites politicization and manipulation of its diversified interests by refusing to engage in the (perhaps laborious but necessary) task of substantive consensus-building. While these are sound advice for any type of gNSO-activity, in the present instance, the gNSO mandated task critically called for policy advices that were in the global public interest.
There seem to be intent from some on the drafting team to impose rough consensus on substantive policy details by sheer virtue of (presumed) SO's single majority. While NCSG critics of the substantive policy position proposed in the unofficial report -- to date, NCSG overwhelmingly disapprove of the rationale brought forward cursorily (implied, really) for special string considerations -- would presumably have been pliable to some kind of concessions, it appears that the drafting team has chosen a tyranny-of-the-majority way of thinking about consensus-building.
The substantive proposal puts forward an unprecedented level of control over potentially legitimate applications in the hands of IOC and RCRC, without so much as providing any kind of rationale that would purport to constrain future like-demands. It furthermore does not seem to preclude monetary compensations for the acquisition of an exemption under ii(1), nor does it provide benchmark that would guide the reception of a potentially legitimate application under the terms set forth in ii(2).
Interestingly, ii(2) asks of potentially legitimate application to do a demonstration which was neither asked of nor made by the IOC or the RCRC. The GAC provided a very shallow basis with which to open dialogue. If one extrapolates the rationale behind the proposed recommendation /as is/, and tries to apply it as the criterion/benchmark needed to demonstrate a legitimate interest under ii(2), one would conclude that debate need not be settled on any particular point, that no objective tests have been devised, and that approval is dependent upon political alliance of an unspecified sort. All that seems to be required is an ICANN body to present shallow bullet points /pro forma/ arguments, and the success of the demonstration made by virtue of ii(2) then rests upon political context. This undermines gNSO and it undermines ICANN. It does not confer ICANN's new gTLD plan with any kind of relief from its governmental or Intellectual Property Rights critics.
In the present immature state of its justification, I cannot say that the substantive side of the policy advice seems compelling. I do not wish to say that it could not be compelling in any general form ascribing permanent protection in the TLDs. I wish to say, rather, that at present, because of lack of rationale, they are immature, short-sided, and deleterious.
With regard the road forward in the SLDs, in the spirit of this commentary chronicling the same major omission in its study of the issue in the TLds, the drafting team or some other gNSO organ should spend some time pondering upon the first question asked in the DT's unofficial report and provide a clear rationale for whether or not the specific orgs enjoyed the specific rights sought, as a matter of relevant international laws, norms or principles. How can a list of options be presented under question 2 that does not presume of a rationale and an answer to question 1?
Policy advice that peremptorily *imply* a rationale out of thin air commits the error of /ignoratio elenchi /at the worst possible place. It will then be held up to the justifying standard that others make up for it.
I urge the gNSO not to engage at full speed with an immature proposition that would be deleterious to itself internally and externally.
Submitted respectfully. Nicolas Adam