Statement on IFRC and IOC - Protection

[Avri Doria <avri@xxxxxxx>]

Re: http://www.icann.org/en/news/public-comment/ioc-rcrc-proposal-02mar12-en.htm

In this statement I want to address the purpose of the ICANN Board's actions, 
and the derivative purpose of the drafting team's work: protection of the 
International Federation of the Red Cross (IFRC) and of the International 
Olympic Committee (IOC). Since the motion's recommendations apply to both 
organizations, and since the GNSO seems to have decided that the motion cannot 
be split between the two organizations, I will not differentiate between the 
two organizations in my comments.  In any case such discrimination would 
require further analysis on the basis for the merits of the special treatment.

- I will avoid, in this note at least, the question of whether the IFRC/IOC 
deserve such protection.

- I will avoid, in this note at least, the question of whether the IFRC/IOC are 
the only organizations that deserve this protection.

- I will avoid, in this note at least, the question of whether the IFRC/IOC as 
a class of organization are unique regarding reasons for such protection.

- I will avoid, in this note at least, the question of whether the ICANN Board 
did the right thing in creating, without a proper GNSO PDP, a new class of 
modified reserved names.

- I will avoid, in this note at least, the question of whether, changing the 
Application Guidebook (AGB) after the start of the application period is an 
appropriate action for ICANN to take.

- I will avoid, in this note at least, the question of whether it is 
appropriate for the GNSO council  to vote on a recommendation of a Drafting 
Team draft without a complete AOC/ATRT/Board determined comment period and 
without a call to the constituencies for comments.  I.e.this note will not 
address the appropriateness of the GNSO council circumventing the PDP and the 
precedence this might set for future emergency policy issues.

- I will avoid, in this note, the analysis necessary to differentiate between a 
policy issue and a 'mere' implementation issue.

In this note I will focus on the issue of protection of the IFRC/IOC in the 
current round.  Stipulating in this comment that the IFRC/IOC deserve such 
special protection, the question becomes what should be done by the GNSO 
Council at this point to protect them and which aspects of the motion before 
the GNSO council achieve this goal. 

It is clear that the Board already gave the IFRC/IOC extraordinary protection 
and I am not asking for this to be rescinded at this point because changing the 
AGB at this point on such a grand scale would be unfair without restarting the 
application clock.  At the request of the IFRC/IOC and the Advice of the GAC, 
they created a new class of modified reserved name that could not be delegated 
and produced a list of words that could not be applied for. The question facing 
the GNSO Draft Team is whether it is necessary to augment this protection and 
if so how it should be done.

The motion before the GNSO contains several elements.  It is worth looking at 
whether these elements contribute to the protection of the IFRC/IOC and if they 
do, whether they do so in a reasonable and scalable manner.

1. (Recommendation 1a) That IFRC/IOC should be given an exemption to the rule 
prohibiting the delegation of these names.  While on the face of it, this seems 
ok to many people, it certainly has nothing to do with protection.  If the 
purpose of this motion is to protect the IFRC/IOC, then this recommendation 
should be out of scope and should be removed from the motion.  It should also 
be noted, that for no other reserved name is this privilege extended - for all 
other reserved names there is no special exemption for the organization to 
which the name refers, e.g. the IETF cannot apply for .ietf.

It is also difficult to know how this special exception would be handled by 
ICANN.  There are thousands of IFRC/IOC participating organizations, as well as 
language and script variations.  Does this special exemption to the special 
modified reserved name policy apply to all of them?  If so, will this be 
handled with a 'white list' of those allowed to apply?  Will a letter be 
submitted by designated officials in the IFRC/IOC?  It seems to me that a 
detailed set of implementation guidelines for how this special exemption from 
the special modified reserved names list would need to be developed before such 
a change could be made to the AGB.  It also seems like this would be a 
difficult thing for the staff to do without sequence of draft proposals and 
comment periods.

Given the difficulty in implementing such a special exemption to the special 
modified reserved name policy, I beleive that it is reasonable to ask the 
IFRC/IOC to wait until the next round to make their applications.  They asked 
for protection and they got protection.  To service this further request at a 
date after the application period has already begun is not reasonable and 
should be rejected.

Recommendation: Delete Recommendation 1a

2.  (Recommendation 1b) That strings similar to the special modified reserved 
names should fail string similarity review.  This seems to contribute to the 
protection of  the IFRC/IOC and thus seems appropriate given the stipulations 
of this action.

Recommendation: Retain Recommendation 1b

3. (Recommendation 1c)  This introduces several mechanisms by which an 
applicant that fails string similarity could appeal the failure. This does not 
seem to play any role in protecting the IFRC/IOC and has several unfortunate 
aspects.

In the first place, it allows for a form of gaming.  Whether by direct payment 
or indirect contribution, it creates an opportunity for the IFRC/IOC to license 
some names while rejecting others.  In a sense this elevates the IFRC/IOC to 
the status of governments, for the only other example in the AGB where a letter 
of permission is mandated for an application relates to Geographic names where 
a-priori government permission is required.  There is no currently defined 
circumstance where a permission letter can be obtained after the failure of an 
application review process. This is an aspect of the special modified reserved 
names that  requires greater policy discussion before implementation.

In terms of implementation, the ICANN Board and Staff have already rejected 
several GNSO policy recommendations for an appeals mechanism to the Confusing 
Similarity test.  The reason given for this rejection of GNSO policy 
recommendations has been the complexity it would add to the application 
process.  It is hard to understand how such a mechanism could be implemented 
specifically for the IFRC/IOC when it could not be implemented on GNSO 
consensus recommendation.  If such a set of appeals mechanisms are possible 
they should be implemented for all applicants and not just for applicants who 
gain License from the IFRC/IOC.  Either it is too complex to implement an 
appeals mechanism or it is not too complex.  And if it is possible is should be 
created for all as a matter of fairness, especially since such an exemption 
does not contribute to the protection of the IFRC/IOC.

Recommendation: Delete Recommendation 1c

4. (Recommendation 2)  That IFRC/IOC produce an exhaustive list of all 
applicable special modified reserved names so that these could be added to the 
list already contained in the AGB.  While it is true that this does contribute 
to the protection of the IFRC/IOC is does not seem to be possible.  As was 
discovered when people tried to create an exhaustive famous marks list, this 
sort of activity is similar to an attempt to boil the ocean, and is not 
possible.

The motion recommends that if the IFRC/IOC fail to create such a list, they can 
still use the objection process.  Along with many others, I have long assumed 
that this was the optimum method, within the policy recommendations made by the 
GNSO, for the protection of the IFCR/IOC, and thus see this as a very 
reasonable adjunct to the the special modified reserved names list created by 
the Board for the protection of IFRC/IOC.

One issue that has come up is that the need to pay for such objections would be 
prohibitive and would come at the expense of the 'good works' done by the 
IFRC/IOC.  As this comment stipulates to the need to protect these 'good 
works', a reasonable and scalable solution would be to allow the IFRC/IOC to 
file such objections without a fee.  The mechanism already exists for this, as 
the Independent Objector could be given the ability to take these IFRC/IOC 
objections and file them on its behalf.   If for some reason I cannot currently 
foresee, such a arrangement is not possible, then perhaps the IFRC/IOC could 
get special exemption from the objection filing fee.  In this case I recommend 
that the applicant target of the objection receive a similar exemption from the 
fee.

Recommendation: Delete the requirement for IFRC/IOC to create further lists.  
Discuss adding a provision for exemption from the objection fee for the 
IFRC/IOC and those they file against.

5. (Recommendation 3) The protections of the special modified reserved names 
list plus other privileges requested by the IFRC/IOC should be extended to all 
future  new gTLD rounds.  While this does deal with protections for the 
IFRC/IOC, it does not deal with protection in the current round.  All of the 
policy + implementation work is being done in a hurry and without the benefit 
of proper process.  There is time before the next round, it is thus reasonable 
that the whole notion of modified reserved names list should be discussed 
further.  There are issues such as the breadth of these rules and their 
application to other entities (the Portuguese and NPOC suggestions) that need 
full and proper discussion.  There should be a policy development process on 
the issue of modified reserved names before the next round, rather than the 
carryover of emergency implementation procedures that single out two 
organization from a possibly larger group of deserving institutions.

Recommendation: Replace recommendation 3, with a call for an issues report that 
covers the many issues involved in this topic at both the top and second levels.


To summarize, I recommend the following with regard to this motion:


- Delete Recommendation 1a
- Retain Recommendation 1b
- Delete Recommendation 1c
-  Delete the requirement for IFRC/IOC to create further lists.  Discuss adding 
a provision for exemption from the objection fee for the IFRC/IOC and those 
they file against.
- Replace recommendation 3, with a call for an issues report that covers the 
many issues involved in this topic at both the top and second levels.


Thank you

Avri Doria