[soac-mapo] FW: Rec6 CWG Response to the Board Request
<<Rec6 CWG Response 010711 Redline.doc>>
Please see below the message I sent to Peter Dengate Thrush regarding
the Board request of the Rec6 CWG. In case anyone wants to easily see
the latest edits made in this document in response to CWG member input,
I also attached a redline version above.
I want to again express special thanks to Jon Nevett for the great
effort he put into preparing this. And of course, thanks to all of you
for your contributions.
Have a good weekend.
Chuck Gomes
_____________________________________________
From: Gomes, Chuck
Sent: Friday, January 07, 2011 6:16 PM
To: 'Peter Dengate Thrush'; John Jeffrey
Cc: Kurt Pritz; Cheryl Langdon-Orr; Frank March; Heather.Dryden Dryden
Subject: Rec6 CWG Response to the Board Request
<<Rec6 CWG Response 010711 Final.doc>>
Peter,
Please find attached and copied below the New gTLD Recommendation 6
Community Working Group (Rec6 CWG) response to the request from the
ICANN Board in its 10 December 2010 meeting in Cartagena.
Chuck Gomes, Co-Chair, Rec6 CWG
3108 Ponte Morino Drive, Suite 117, Cameron Park , CA 95682
Office: +1 530 676-1100; Mobile: +1 703 362-8753
"This message is intended for the use of the individual or entity to
which it is addressed, and may contain information that is privileged,
confidential and exempt from disclosure under applicable law. Any
unauthorized use, distribution, or disclosure is strictly prohibited. If
you have received this message in error, please notify sender
immediately and destroy/delete the original transmission."
7 January 2011
Mr. Peter Dengate-Thrush
Chairman
ICANN Board of Directors
cc: John Jeffrey, ICANN Secretary
Re: Rec6 CWG Revised Recommendations and Clarifications
Dear Peter:
This correspondence is a formal response to the ICANN Board's Cartagena
Resolution (2010.12.10.21) requesting that the Rec6 CWG provides its
final written proposal with regard to three specific issues by 7 January
2011.
The Rec6 CWG hereby submits the following clarifications for the Board's
consideration. Note that the three areas for which clarification was
requested in the Board motion are shown in bold font followed by the CWG
responses in normal font. In addition, the CWG added a fourth area of
comments at the end that also has a header in bold font and is submitted
for possible Board consideration.
(1) The Roles of the Board, GAC, and ALAC in the Objection Process
With regard to the first issue (the roles of the Board, GAC, and ALAC in
the objection process), we need to provide clarification regarding the
circumstances under which the CWG suggests that the Board would vote
regarding an application that is subject to a Rec6 Objection:
- clarify the circumstances under which the Board would vote with
regard to an Rec6 objection and/or with gTLD applications generally,
Based on the written responses to the pre-Cartagena questions from the
ICANN staff, as well as the various discussions during the Cartagena
meeting, the CWG has recommended that the Board would have to
specifically approve any recommendations from third party experts to
reject a TLD application based on a Recommendation 6 objection. The CWG
has not suggested, however, that the Board be required to take a vote on
specific Recommendation 6 objections where the third party experts
reject such an objection. Nor did the CWG suggest that the Board be
required to approve every new gTLD string.
and
- if there is consensus on it, clarify the intended role of the
expert panel (i.e., dispute resolution provider, mediator, advisor or
other).
A consensus of the CWG recommended that the ICANN Board may "contract
appropriate expert resources capable of providing objective advice."
The CWG did not recommend that the Board should be a trier of fact or
should hear in the first instance every Rec6 objection with a
requirement that it should make a determination on the merits in every
case.
The CWG did not reach consensus over the actual form or weight of the
expert advice (e.g., whether the expert panel should be a dispute
resolution provider, mediator or advisor). Some members of the CWG take
a broader definition of dispute resolution panel than others. Some
members think that the experts should not hear from the objector and the
applicant at all - whether in a trial setting or written advocacy -
others disagree and support an adversarial process.
There was Strong Support, but not Consensus, that the experts should be
able to look at the context of the application or applicant in
evaluating a Recommendation 6 objection - others disagree and believe
that the experts should conduct their analysis on the basis of only the
string.
While the CWG did not reach consensus on these issues, it did explicitly
remove all reference to the specific term "dispute resolution" in its
recommendations, and made no requirement that the experts engage in an
adversarial process between applicant and objector.
Furthermore, the CWG did achieve Strong Support (though not Consensus)
for not calling the evaluation process one of "dispute resolution," and
requiring that the experts' skills be in legal interpretation of
instruments of international law.
(2) The Incitement to Discrimination Criterion
With regard to the incitement to discrimination criterion, we need to
confirm the specific language revisions the CWG requests with regard to
the "incitement to or promotion of" portion of the criterion. After
the discussion in Cartagena, does the CWG continue to request that the
standard be "incitement and instigation" or is some other language
preferable? In addition, the CWG could also state whether it still
believes that the standard should be expanded to include the list of
additional discrimination grounds that were referenced in the CWG
Report:-
* CWG to confirm the specific language requested with regard to the
"incitement to or promotion of" term in the original standard. After
the discussion in Cartagena, does the CWG continue to request that the
term be "incitement and instigation" or is some other language
preferable?
In its report dated 21 September, 2010, the CWG recommended that
"incitement and instigation" be used in the criteria for discrimination.
In ICANN's explanatory memorandum on this issue dated 12 November 2010,
it provided a rationale of why "incitement to or promotion of" is a more
appropriate standard. Based on the ICANN response, the discussions in
Cartagena during which several CWG members stated that they no longer
agree with the recommendation, and some admitted confusion over the
legal impact of the word choice; we recognize that these terms may have
well-defined, but possibly varied meanings in different courts. Overall,
however, these are terms that are widely used in the international law
and international criminal law context. The substantive difference
between 'incitement to and promotion of' and 'incitement and
instigation' concerns the bar that we wish to set; in the first instance
this bar is lower, whilst in the second the bar is substantially higher.
The CWG may no longer have a consensus on this issue. As such, expert
clarification should be made to the Board on the varying interpretations
of the different criteria.
With that said, many members of the CWG still argue that a higher
standard than "incitement to or promotion of" would be appropriate.
* the CWG needs to reiterate consensus on the standard including an
expanded list of additional discrimination grounds that were referenced
in the CWG Report.
Two consensus recommendations of the CWG were to extend the list of
potential discriminations also to include discrimination based on age,
disability, actual or perceived sexual orientation or gender identity,
or political or other opinion. The CWG also suggested by a full
consensus that such discriminations must rise to the level of violating
generally accepted legal norms recognized under "principles of
international law." As such, any additional discriminations listed in
the second prong still must be found to be in violation of principles of
international law.
We do not believe that recognizing additional discriminations would
significantly broaden the types of objections brought. The CWG does not
believe that any additional research needs to be conducted on whether
such additional classes are protected under international law today. It
has been brought to the CWG's attention that these additional
discriminations have some protection under international law. If they
are recognized today, then the Board and the experts would rely on them.
If they are not at that level yet, then they won't. Importantly, such
additional discriminations might become more recognized at some future
date and the process should be fluid enough to take them into account at
such time. The suggestion in Cartagena of a catch-all discrimination
criteria - such as "any other discriminations that are generally
recognized under international law" - seems to be acceptable to many of
the CWG members. Other CWG members prefer listing all of the
discriminations suggested by the CWG, or only the catch-all criteria,
thereby avoiding a sense of prioritization among discriminations.
(3) The Fees for GAC and ALAC-instigated Objections
With regard to the fees for GAC and ALAC-instigated objections, we need
to identify what (if any) fees should be charged and where the funds
should come from, and any other restrictions or additional steps that
the CWG suggests for dealing with GAC and ALAC-instigated objection:-
* what fees should be paid by ALAC and GAC (if
filing and dispute resolution fees are waived, are the number of free
objections limited)
* by what process is an ALAC and GAC objection formed and
approved?
A full consensus of the CWG recommended that fees be lowered or removed
for objections from the GAC or ALAC. It is the CWG's sentiment that
ICANN should provide the ACs appropriate funding for such objections if
there is a cost to object. In the CWG clarifying document filed just
prior to the Cartagena meeting, the CWG felt that it was outside its
scope to comment on the process for the GAC or ALAC to lodge objections.
The CWG assumed that any Rec6 objections put forth by the GAC or ALAC
would be approved according to their own internal processes, taking into
account accountability and transparency principles and consensus-based
decision making.
In addition to the above use of the "Community Objection" process by the
ALAC and GAC and assuming that the Independent Objector (IO) function is
maintained in the processing of new gTLD Applications, then an alternate
pathway for AC objections to be considered would be for the IO to take
up such formally prepared objections from the ALAC and/or GAC and
subject them to the same standards of check and balances, and
transparency and accountability criteria, as any other IO instigated
objection process as if they were self instigated by an AC.
(4) Other CWG Recommendations Not Specified by the Board
The CWG would like to make another recommendation related to the IO
mentioned above, although the support of which has not been subject to a
formal call of its members. It is a key principle that the IO should
operate in a transparent and accountable manner, and that appropriate
safeguards are in place to ensure that it operates in the public
interest. For example, the IO should facilitate legitimate
Recommendation 6 objections, and neither trigger nor create objections
entirely on its own that cannot be traced back to any party. At a
minimum, there should be at least one party that has claimed publicly
that it would be harmed by the creation of a TLD before the IO can
object to it in an effort to reject such an application. The IO is not
meant to facilitate secret objections, but should operate with
transparency. The IO should be a tool for those who cannot maneuver the
difficult objection procedures or for those who are not in a position to
fund such objections, rather than an opaque means to kill a proposed-TLD
that otherwise isn't subject to public objection.
Finally, CWG Recommendation 1.2 suggested that ICANN change the name of
a Recommendation 6 objection from "Morality and Public Order." While
the CWG did not achieve a consensus on an alternative name, we do note
that the name selected in the Proposed Final Applicant Guidebook -
"Limited Public Interest Objection" was not polled by the CWG and
"Public Interest Objections" was ranked only third of five names
polled.
Sincerely,
Rec6 Community Working Group
Attachment:
Rec6 CWG Response 010711 Redline.doc Attachment:
Rec6 CWG Response 010711 Final.doc |