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Comments on several aspects of DAGv4

  • To: <4gtld-guide@xxxxxxxxx>
  • Subject: Comments on several aspects of DAGv4
  • From: "Mary Wong" <MWong@xxxxxxxxxxxxx>
  • Date: Wed, 21 Jul 2010 14:51:50 -0400

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<DIV>Although I am&nbsp;one of the elected&nbsp;GNSO Councillors for the 
Non-Commercial Stakeholder Group (NCSG) and have shared these comments with 
NCSG members, they&nbsp;have not as yet been&nbsp;vetted by the NCSG process so 
as to constitute an official NCSG statement. As such,&nbsp;they are being 
submitted in my personal capacity. </DIV>
<DIV>The following comments relate to&nbsp;several specific aspects of version 
4 of the draft Applicant Guidebook; viz., Module 2 (Evaluation Procedures) 
regarding Background Checks, and Module 3 (Dispute Resolution) regarding 
Morality &amp; Public Order objections and the role of the Independent 
Objector. All page and section references are to the redlined version of the 
draft Applicant Guidebook.</DIV>
<DIV>(1) Background Checks (Module 2)</DIV>
<DIV>No basis was provided for the introduction of this additional step in the 
application process into the Guidebook. While a certain level of background 
check on an applicant may be viewed as desirable by some, the current 
suggestions go even beyond what&nbsp;is reasonably necessary for the presumed 
purpose of identifying applicants with potential financial or operational risks 
early on. </DIV>
<DIV>First, the least intrusive check that can be done (should any such check 
even be deemed necessary) must be&nbsp;one on the applicant itself (i.e. the 
entity applying for the potential new gTLD), in relation to its financial, 
technical and operational capabilities (in keeping with the other requirements 
of the Guidebook). To the extent that&nbsp;this makes it&nbsp;absolutely vital 
to also conduct a check on the applicant's management, this should be limited 
to active officers, directors and, possibly,&nbsp;majority shareholders of the 
applicant. The word "partners" (pg 2-1, Section 2.1) in this context is, in 
addition, confusing, as the legal meaning of the word is different from the 
broader, more general meaning in ordinary use.</DIV>
<DIV>Secondly, some of the grounds upon which a background check are to be 
based appear overly vague and/or disproportionate to the objectives 
of&nbsp;this type of&nbsp;background check. For instance, would a check on 
whether an entity or one of its directors engaged in&nbsp;"terrorism" come back 
positive because that entity or person has been charged in one national court 
with abetment of a terrorist act according to just that one country's 
definition of terrorism? Does ICANN limit terrorism&nbsp;to 
mean&nbsp;constituting a&nbsp;security threat to critical Internet 
infrastructure, and according to whom?</DIV>
<DIV>While the scale of serious matters such as terrorism (however defined) and 
war crimes (another highly-charged phrase) cannot be denied, how would those 
issues affect the deployment of new gTLDs and the operation of the DNS, such 
that&nbsp;it is&nbsp;appropriate for ICANN to deny an application on those 
grounds? One can perhaps agree that a company that has been found to have 
engaged in "corporate fraud and financial regulatory breaches" may not be an 
appropriate new gTLD registry operator, but these are purely financial and 
operational issues that are directly linked to the capacity of a potential new 
gTLD registry operator.</DIV>
<DIV>Thirdly, the question of whether an applicant (or its officers, directors, 
shareholders and partners) engaged in "intellectual property 
violations"&nbsp;(pg 2-2) does not seem to belong in the same category of 
serious concerns as the other grounds listed as subjects of background checks. 
If ICANN wishes to ensure that serial cybersquatters and other, proven cases of 
abusive trademark users&nbsp;will not be allowed to operate a new gTLD, then 
this category ought specifically to be limited to just these particular cases 
(and not, for instance, extended to someone who unknowingly infringed a 
copyright at some prior point in his/her personal life).</DIV>
<DIV>Fourthly, even though the decision whether or not an applicant has passed 
a background check&nbsp;is made on a "case by case basis" (pg 2-2), the draft 
as it stands gives ICANN (and, for that matter, the entity conducting the 
background check) broad discretion to consider many more factors than those 
listed and to make a decision. </DIV>
<DIV>There is also no provision for informing the applicant either that it (or 
one of its officers, directors etc.) has triggered any alarm bells in the 
course of the background check, or even that it has failed because of a 
negative background check. Further, there is no provision for any appeal or 
review of a decision to disallow the application to go&nbsp;further because of 
a failed background check.</DIV>
<DIV>I suggest that ICANN review the background check provisions. Unless 
community feedback indicates strong, substantiated and principled support for 
the concept of a background check, I would suggest that this requirement be 
<DIV>To the extent, however,&nbsp;that community feedback indicates that a 
background check&nbsp;of&nbsp;some kind is&nbsp;necessary, these should be 
strictly limited to, at most, cases of proven financial irregularity or fraud, 
and possibly clear-cut, proven cases of cyber-squatting.</DIV>
<DIV>(2) Morality &amp; Public Order Objections (Module 3)</DIV>
<DIV>Many members of the&nbsp;NCSG continue to oppose the inclusion&nbsp;of a 
Morality and Public Order ("MAPO") objection in the new gTLD process, as do 
I.&nbsp;My objection is based on the belief that (a) there are no truly global 
standards for MAPO; (b) the laws, customs and norms of public international law 
are inappropriate and do not fit into a private party transaction (as ICANN's 
dealings with new gTLD registries would be); (c) the existing public 
international law mechanisms for dealing with&nbsp;alleged infractions of 
international treaties that touch on MAPO issues&nbsp;are entirely different in 
objective, operation and effect from the dispute resolution panels contemplated 
by ICANN; and (d) MAPO issues likely fall outside of ICANN's mandate.</DIV>
<DIV>I take this opportunity to reiterate numerous earlier NCSG&nbsp;calls for 
ICANN to publicly release the research it commissioned from the various jurists 
and international law experts (such as were referenced in ICANN's earlier 
Explanatory Memorandum on MAPO), so that the community can openly evaluate the 
need for a MAPO objection process at all as well as the grounds upon which 
ICANN is currently recommending that such a process be based.</DIV>
<DIV>I would&nbsp;also call attention to the recent formation of a joint ACSO 
group tasked with discussing the MAPO issues, and recommend that any further 
action on MAPO be taken only with reference to the work to be done by that 
<DIV>(3) Independent Objector (Module 3)</DIV>
<DIV>There is a&nbsp;troubling lack of specificity in both versions 3 &amp; 4 
of the Guidebook concerning the accountability of the Independent Objector 
("IO"). While the broad general concept of such an office is in and of itself 
uncontroversial, the very freedom currently recommended for the IO also means 
that he/she does not have to act in consultation with any community, nor is 
he/she obliged to receive public comments (pg 3-6). </DIV>
<DIV>Further, while the IO is supposed to be an independent contractor to (and 
not a full-time employee of) ICANN, his/her budget will necessarily emanate 
from ICANN. The recommendation that the IO has potentially limitless renewable 
terms (pg 3-6) is therefore a matter of concern.</DIV>
<DIV>In addition, there is no process for any person or community who are 
aggrieved or harmed by the IO's decisions and actions (or inactions, as the 
case may be) to object or appeal. While&nbsp;it&nbsp;is reasonable to believe 
that a responsible IO will not file a trivial or illegitimate complaint, there 
is&nbsp;currently no&nbsp;redress&nbsp;for anyone or any group who believe 
themselves prejudiced by a decision of an IO not to act,&nbsp;especially in 
cases where a particular person or&nbsp;community may,&nbsp;for reasons such as 
political suppression or financing, be unable to raise&nbsp;objections on their 
<DIV>These concerns about the IO are particularly magnified given the IO's 
mandate to file MAPO objections.&nbsp;</DIV>
<DIV>At the very least, specific provisions relating to an appeal and review 
process for the IO and his/her conduct, as well as either non-renewable tenure 
or a maximum number of terms, ought be included in the final Guidebook.</DIV>
<DIV>Thank you for the opportunity to comment on the latest version of the 
draft Applicant Guidebook.&nbsp;I look forward to an accurate and timely 
summary and analysis of all comments received in this round, and to speedy 
resolution of the issues highlighted through this comment process and 
<DIV>Mary Wong</DIV>
<DIV><STRONG><FONT color=#800080>Mary W S Wong</FONT></STRONG></DIV>
<DIV>Professor of Law &amp; Chair, Graduate IP Programs</DIV>
<DIV>Franklin Pierce Law Center</DIV>
<DIV>Two White Street</DIV>
<DIV>Concord, NH 03301</DIV>
<DIV>Email: <A href="mailto:mwong@xxxxxxxxxxxxx";>mwong@xxxxxxxxxxxxx</A></DIV>
<DIV>Phone: 1-603-513-5143</DIV>
<DIV>Webpage: <A 
<DIV>Selected writings&nbsp;available on the Social Science Research Network 
(SSRN) at: <A 

<br><a href="http://www.piercelaw.edu/";><img 
src="cid:MFHKELDJVDSP.affiliationlogo.jpg" alt="Pierce Law | University of New 
Hampshire - An Innovative Partnership" border="0"></a>    </div>


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