NCUC Statement on the Proposed Final Applicant Guidebook - Independent Objector (IO) process is ripe for abuse and harmful to the global public interest.

[Robin Gross <robin@xxxxxxxxxxxxx>]

Statement of NCUC on the Proposed Final Applicant Guidebook

The Noncommercial Users Constituency (NCUC) supports the prompt commencement of 
the application program for new gTLDs.  We rcognize the guidebook as 
implementing community consensus, in large.  A few elements that deviate from 
community recommendations cause concern, however we believe these can be fixed 
within the proposed schedule.

In particular, we are concerned that the Independent Objector (IO) process is 
ripe for abuse and harmful to the global public interest. The IO was a staff 
created policy that was never discussed let alone approved by the GNSO.  We 
believe that it is entirely illogical that there can be a TLD that no 
community, religion, government, company, trademark holder, or individual in 
the world actually objects to – yet is “something we all agree is 
objectionable” as claimed by staff.

Important safeguards to prevent abuse and “gaming” are lacking from the current 
IO design.  For example, there is no requirement that an objection brought by 
the IO be tied to at least one specific party who claims it will be harmed if 
the TLD goes forward.  Such a requirement is necessary to achieve 
accountability in the new TLD process.  

Another feature missing from the IO is transparency.  ICANN staff has explained 
a number of times that the IO is intended to provide a secret means for 
governments and others to object to a TLD string without having to do so 
publicly.  For a public governance organization with transparency requirements, 
such a proposal for secret objections cannot stand.  If there must be an IO, 
actual objectors must come forward and be transparent about their role to 
prevent the new TLD. 

According the explanatory memo on so-called Morality and Public Order 
objections, one of the purposes of the IO is “risk mitigation” to ICANN (i.e. a 
forum to quietly kill controversial TLDs to ward-off ICANN’s ability to be sued 
in courts of law).  We do not support staff’s introduction of “risk mitigation 
strategy” as ICANN’s primary policy objective.  As always, the global public 
interest with respect to the DNS is ICANN’s primary obligation, not ICANN’s own 
corporate interest.

The IO lacks true independence.  The IO is employed by ICANN; likewise the 
third party contracted to select the experts who will determine the objection 
is also hired by ICANN, so there is a lack of neutrality on the part of the 
expert panel since it will have an incentive to agree with the IO (ICANN) who 
hired it when it handles matters brought by the IO. 

On the issue of trademarks in the latest DAG, we are troubled by the 
elimination of sufficient time in which to respond to URS complaints in the 
latest DAG.  Re-working the negotiated community consensus from 21 to 14 days 
as a timeframe in which to respond is concerning as it provides inadequate 
protection to registrants, who may be on holidays and unable to find an 
attorney and respond in a reasonable period of time.

We share the concerns expressed in the At-Large Statement on Draft Applicant 
Guidebook.  However, we believe the best course of action is to make the 
appropriate fixes to the policy to protect the global public interest and go 
forward with new TLDs in an expeditious manner.  Thank you.




IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx