[AfrICANN-discuss] Forward: Non-commercial Stakeholder Group Comment on U.S. Government Proposed “Scorecard” on new gTLDs

[Alex Gakuru]

---------- Forwarded message ----------
From: Alex Gakuru <gakuru at gmail.com>
Date: Wed, Feb 9, 2011 at 10:14 AM
Subject: Non-commercial Stakeholder Group Comment on U.S. Government
Proposed “Scorecard” on new gTLDs
To: ke-users <ke-internetusers at bdix.net>


*NON-COMMERCIAL STAKEHOLDER GROUP COMMENT ON U.S. GOVERNMENT PROPOSAL
REGARDING SCORECARD ON NEW GTLDS*

ICANN’s Non-Commercial Stakeholder Group (“NCSG”) – the only one of the four
Stakeholder Groups established within ICANN’s Generic Names Supporting
Organization (“GNSO”) framework that represents academic, individual
consumer, non-profit and other non-commercial Internet
users1<#12e094510bf91bb4_sdfootnote1sym>– has prepared the following
response to the recent proposal made by the US
Government to ICANN’s Government Advisory Committee (“GAC”) on the Scorecard
for new gTLDs (“USG Proposal”2 <#12e094510bf91bb4_sdfootnote2sym>). As the
USG Proposal is presented in the form of a proposal to be adopted by the
full GAC , this response outlines the flaws inherent in the proposal and
presents reasons why it should not be adopted. This response focuses on
proposals #1 (Objections Procedures), #2 (Vertical Integration) and #4
(Intellectual Property Protection) of the USG Proposal.

*The NCSG believes that many aspects of the USG Proposal are sufficiently
alarming that, if adopted, they would threaten the fundamental human right
of freedom of expression, and set a dangerous precedent for governmental
dominance in the multi-stakeholder arena of Internet
governance.*Specifically, the USG Proposal
*ignores and completely overturns both the process and result of
carefully-negotiated community consensus* that led to the latest version of
ICANN’s Draft Applicant Guidebook (“AGB”) for new generic top-level domains
(“gTLDs”), and is a clear attempt to wrest control over the assignment of
new gTLDs away from ICANN and vest it in the hands of individual
governments.

We wish to emphasize that an appeal to the “*universal resolvability of DNS”
cannot possibly justify giving any individual government the power to
prevent the creation of a TLD “for any reason.”* One does not advance the
cause of a globally interconnected internet by encouraging any individual
government to exercise a global authority to prevent the creation of top
level domain applications. The only effect of such a policy would be to
multiply one country’s controls and regulations to all countries. There are
in fact no technical harms to the Internet as a whole caused by the blocking
of a single TLD by one or a few countries.

*General Note:*

Although the NCSG has raised issues with ICANN’s accountability and
transparency practices in the past, the ICANN model is based on
multi-stakeholder participation involving not just governments, but also
industry participants and individual Internet users. In this model, and as
enacted in ICANN’s Bylaws, individual national governments – through the GAC
– may be influential participants and are entitled to offer advice to the
ICANN Board on Internet domain name policy, but do *not* override the voices
of businesses large and small, non-profit organizations and individual
consumers. We believe that this community-based model of bottom-up consensus
decision-making is currently the most appropriate framework for Internet
domain name management and governance, in light of the fact that the
Internet is a global network whose evolution, maintenance and growth has
depended, and continues to depend, on the participation of each of the
stakeholders who are represented in the ICANN model.

*Our Reasons for Rejecting USG Proposal #1*

The USG Proposal recommends eliminating the current Limited Public Interest
Objection procedure entirely, and adding to the Initial Evaluation phase for
a proposed new gTLD the ability for “any GAC member” to object “for any
reason” (which objection must result in a denial of that gTLD application by
ICANN if no other GAC member opposes the GAC’s support of that objection).
In addition to the general reasons we stated above, this particular proposal
is troubling because:

   1.

   *It ignores the recommendations made recently by a cross-community
   working group (“CWG”) that carefully considered and proposed refinements to
   the Limited Public Interest Objection procedure. *

The CWG, which included several participants from GAC member countries in
their individual capacities3 <#12e094510bf91bb4_sdfootnote3sym>, made
recommendations to modify the AGB-prescribed procedure that were responsive
to GAC’s concerns. The CWG recommendations are still under consideration by
the ICANN Board and have been publicly available for some
time4<#12e094510bf91bb4_sdfootnote4sym>.
It would have been far more helpful – and a welcome acknowledgment of the
role of each stakeholder (including governments) in ICANN decision-making –
if the USG Proposal had addressed the CWG’s concerns and recommendations so
as to arrive at an improved objections process rather than simply reject it
when it has been subject to community comment and suggestions.

   1.

   *The USG proposal states, incorrectly, that the objection procedure would
   result in an erosion of national sovereignty as governments would be bound
   by the decision of a private entity (the International Center for Expertise
   (“ICE”) of the International Chamber of Commerce (“ICC”)), “guided by” only
   the opinion of three international law experts. *

The objection procedure, particularly as refined and further explained by
the CWG, has never precluded governments from enacting, amending or
repealing their respective national laws as an exercise of national
sovereignty and interpreting and applying applicable principles of
international law. Rather, it provides a mechanism by which any party with
standing (whether individual, corporate or government) can raise an
objection to a new gTLD application based on the specific issue of whether
that gTLD string will contravene recognized principles of international law
(e.g. as found in numerous international treaties). Determination of that
specific issue – in the form of a legal opinion – is made not by the ICE or
the ICC, but by an appointed panel of jurists. The ICANN Board will then
decide whether or not to approve that particular string. Should the Board
decide to reject the string based on the jurists’ opinion, it is still open
to governments to exercise their national sovereignty rights in any way they
consider appropriate – they do not have to change their national laws as a
result.

It would have been more helpful if the USG Proposal had recommended a better
way for conducting the objection procedure (e.g. by recommending an
alternative forum), or a specific means through which the GAC can provide
formal assistance to the Board where such objections are concerned. The USG
Proposal fails to adequately explain why paying a fee to participate in this
objection procedure abrogates national sovereignty, why it believes that it
would not be “feasible” for a panel of three eminent jurists to determine
questions of international law, and why the only remedy possible is deletion
of the procedure5 <#12e094510bf91bb4_sdfootnote5sym>.

As to the possibility that certain national governments may block certain
strings because they consider these to be broadly “objectionable” or, more
specifically, contrary to a particular national law (but not to
international law6 <#12e094510bf91bb4_sdfootnote6sym>), the USG Proposal
fails to demonstrate how the likely few, isolated instances of such blocking
would directly lead to a problem with Internet stability or substantially
detract from universal resolvability7 <#12e094510bf91bb4_sdfootnote7sym>.

   1.

   *Its recommendation that the Initial Evaluation process be amended to
   allow the GAC to decide whether or not a particular gTLD passes muster
   subverts the basis upon which ICANN functions, renders an applicant
   vulnerable to internal GAC politics and lobbying, and arrogates only to the
   GAC the right to decide what is in the “global public interest”. *

A better, more balanced and less high-handed way to address the apparent
concern here that strings that would ultimately be rejected through the
Limited Public Interest objection process be dealt with much earlier in the
process would have been a recommendation to amend, improve and/or speed up
either the objection process or the related “Quick Look” procedure. While we
agree that the blocking of numerous strings by individual governments is not
a desirable outcome, we note that the USG Proposal does not provide ICANN
any leeway or discretion at all, as the outcome depends entirely on whether
the GAC fails to oppose – a different concept from whether the GAC actually
supports - an objection raised by a single GAC
member8<#12e094510bf91bb4_sdfootnote8sym>.
While we do not doubt the good faith of the GAC, it is possible that reasons
such as national comity might make a GAC member decide not to oppose an
objection raised by a GAC colleague.

This proposal thus raises the very clear possibility that what certain
governments consider “objectionable” – unmoored to any specific criteria or
the international law framework – could form the basis upon which certain
gTLD applications are denied. Given the broad subjectivity that this
proposal would permit and the consequent threat to free expression – a
fundamental human right long recognized by international law – it is not at
all clear how this proposal is “in the global public interest”.

   1.

   *The proposal that the concept of community-based strings be expanded to
   include “strings that refer to particular sectors, in particular those
   subject to national regulation (such as .bank, .pharmacy)” over-reaches and
   introduces unnecessary subjectivity, breadth and uncertainty into the new
   gTLD application process.*

The USG Proposal would subject these strings to the need to document support
or non-objection from a relevant authority. It also goes further, suggesting
that if deemed “too broad” or “sufficiently contentious”, the application be
rejected. It is not clear who will make this decision, or on what basis.

It is also difficult to see how a string such as “.bank” would necessarily
be one purely of “national, cultural, geographic [or] religious
significance”. While banks and pharmacies are subject to some regulation,
these relate largely to licensing and operational practices. Such matters,
as well as legitimate concerns relating to, e.g., fraudulent practices,
should not be summarily dealt with by denying the gTLD altogether,
particularly as these issues may be content-related and thus an issue beyond
ICANN’s mandate. A better approach – in relation to operation of the gTLD
string rather than the content of a domain – would have been to recommend
improvements to either ICANN registry contracts or post-delegation
procedures.

*Our Reasons for Rejecting USG Proposal #3*

The USG’s rejection of liberalized cross-ownership rules completely ignores
two of the three expert reports commissioned as well as the extensive
analysis and discussion carried out in the Vertical Integration Working
Group. In particular, the ICANN policy roughly corresponds to that
recommended by the Salop and Wright report and by several sizable groups
within the Vertical Integration Working Group. When the USG asserts that
ICANN had no reason for changing its position between March and November
2010, it ignores the fact that an entire working group process had been
conducted, with extensive development of alternative proposals by experts in
the industry and among ICANN stakeholder groups. The USG analysis is flawed
in a more fundamental manner: it seems to not understand that a new TLD,
which is the only group to which the new regulations would apply, cannot
possibly have “market power” because it has no market share and no
individual or organization is required to register within a new TLD. The USG
also ignores the extensive evidence demonstrating that current separation
requirements act as a barrier to entry and obstacle to the success of many
small prospective TLDs.

*Our Reasons for Rejecting USG Proposal #4*

We note that the USG Proposal in relation to intellectual property
protection would resuscitate proposals previously rejected by community-wide
consensus through the Special Trademark Interests review team formed by the
GNSO at the ICANN Board’s request9 <#12e094510bf91bb4_sdfootnote9sym>, and
introduce mechanisms rejected even earlier, by the Implementation
Recommendations Team that was formed by the Intellectual Property
Constituency at the ICANN Board’s request.

We note, further, that the ICANN Board has done the following:

   -

   Considered the various mechanisms put forward for addressing trademark
   issues in new gTLDs10 <#12e094510bf91bb4_sdfootnote10sym>;
   -

   Put forward the possibility that additional or emerging issues in this
   regard be further addressed through policy development by the
GNSO11<#12e094510bf91bb4_sdfootnote11sym>;
   and
   -

   Indicated that in its view trademark issues have been sufficiently
   addressed by a sufficiently consultative and inclusive community-wide
   consensus process12 <#12e094510bf91bb4_sdfootnote12sym>.

With respect particularly to the possibility of GNSO policy development, we
note that the GNSO Council has recently called for an Issues Report to be
prepared on the Uniform Dispute Resolution Policy, as a necessary
preliminary step towards a full policy development process. This reflects
the GNSO community consensus, as evidenced by the reports made by the GNSO’s
Registration Abuse Policies Working Group and the Registration Abuse
Policies Implementation Drafting Team. The GNSO is also in the process of
evaluating the value of and developing guidelines for the establishment of
cross-community working groups, which would include participants from other
ICANN stakeholders, including the Advisory Councils.

In addition, we believe that the effectiveness of these rights protection
mechanisms is best measured after they have been tested in practice. It may
be that they need to be refined further, or even that additional and
balanced mechanisms should be considered for future launches and existing
gTLDs. In light of the delay that has already attached to the introduction
of new gTLDs, the ongoing work in the GNSO and the process through which the
community has arrived at a consensus position on a contentious over-arching
issue, a more constructive and thoughtful approach would be to review these
consensus-based mechanisms as a community post-launch, instead of following
the USG Proposal which would effectively and essentially mean restarting the
entire process all over again.

*Conclusion*

For the reasons stated above, we urge members of the GAC to reject the USG
Proposal. We support the ICANN Board’s resolution to meet with the GAC in
Brussels, and to take into account all community input, as it completes its
deliberations regarding the launch and implementation of new gTLDs. What we
do not support is any attempt – whether by a government, a group of
governments, or non-governmental actors – to engage in a run-around of a
thoughtful and good-faith community process of engagement, discussion,
negotiation and compromise that took place over a long period of time and
that has resulted in consensus positions on once-contentious issues.

In light of the upcoming ICANN meeting in San Francisco, we invite the GAC,
individual governments and everyone in the ICANN community to work with us
to resolve any remaining implementation issues with new gTLDs, and to engage
in timely, collaborative reviews of policy and practices going forward.

1 <#12e094510bf91bb4_sdfootnote1anc> See
*http://www.icann.org/en/about/*and the relevant associated webpages.

2 <#12e094510bf91bb4_sdfootnote2anc> The USG Proposal can be viewed in full
at *http://blog.internetgovernance.org/pdf/USGmonstrosity.pdf*.

3 <#12e094510bf91bb4_sdfootnote3anc> The GAC did not participate formally in
the CWG. Participants from GAC member countries, although participating in
their individual capacities, were helpful in providing general government
perspectives to the rest of the group. The group also received information
from the international law firm that ICANN engaged to help craft the
procedure.

4 <#12e094510bf91bb4_sdfootnote4anc> See *
http://www.icann.org/en/announcements/announcement-2-22sep10-en.htm*(inviting
public comments on the group’s August 2010 report, available via
the link); and the relevant Board resolutions from September 2010: *
http://www.icann.org/en/minutes/resolutions-25sep10-en.htm#2.9*, and
December 2010: *http://www.icann.org/en/minutes/resolutions-10dec10-en.htm#2
* (stating, in relevant part, that the CWG has “clarified [its]
recommendations in a series of consultations with ICANN staff and Board
members” that discussions “will continue on (1) the roles of the Board, GAC,
and ALAC in the objection process, (2) the incitement to discrimination
criterion, and (3) fees for GAC and ALAC-instigated objections’, and
requesting the CWG to provide final responses on these issues by 7 January
2011. The CWG’s responses were filed and are available publicly at *
http://forum.icann.org/lists/soac-mapo/pdfbMwNTSi4MW.pdf*.)


  5 <#12e094510bf91bb4_sdfootnote5anc> While certain NCSG members do not
support the current AGB procedure for determining objections under this
category, the NCSG unanimously believes that the USG Proposal represents a
worse alternative.

6 <#12e094510bf91bb4_sdfootnote6anc> This is a critical distinction, and one
clarified by the CWG. Allowing national law variants to determine whether a
gTLD string is approved or not would facilitate repression of free
expression by certain governments where those variants themselves are not
reflected in principles of international law.

7 <#12e094510bf91bb4_sdfootnote7anc> We note that blocked domains are, in
fact, universally resolvable architecturally; it is simply that a network
operator may elect not to do so. This does not affect the Internet’s
architecture: see, e.g. *
http://blog.internetgovernance.org/blog/_archives/2011/1/29/4737705.html*.
Note also that thousands of second-level domains are already blocked by
national governments, and will continue to be blocked regardless of whether
ICANN adopts the USG proposal.

8 <#12e094510bf91bb4_sdfootnote8anc> This distinction – between “support
for” and “opposition to” an objection (which objection may be made by just
one GAC member) is particularly important given the GAC’s concept of
“consensus” (see Footnote 1 of the USG Proposal).

9 <#12e094510bf91bb4_sdfootnote9anc> The STI’s recommendations, based in
part on the IRT’s proposals, were the basis for the mechanisms eventually
introduced into the AGB. All of the groups’ various reports as well as each
iteration of the AGB have been subjected to public comment: see *
http://www.icann.org/en/announcements/announcement-4-29may09-en.htm*(inviting
public comment on the IRT’s Final Report) and
*http://www.icann.org/en/announcements/announcement-2-17dec09-en.htm*(inviting
public comment on the STI team’s recommendations of December
2009).

10 <#12e094510bf91bb4_sdfootnote10anc> See, e.g., the Board’s resolution on
this question from its Trondheim retreat in September 2010: *
http://www.icann.org/en/minutes/resolutions-25sep10-en.htm#2.9*.

11 <#12e094510bf91bb4_sdfootnote11anc> This was specifically included in the
Trondheim resolution, *ibid*. We note that the language expressly considers
the possibility of “*further mechanisms* for *enhanced protection* of
trademarks” (emphasis added.)

12 <#12e094510bf91bb4_sdfootnote12anc> The Board’s resolution in Cartagena
in December 2010 on this issue stated that the over-arching issue of
trademark protection has been addressed though implementation issues (with
regard also to other over-arching issues) may remain: *
http://www.icann.org/en/minutes/resolutions-10dec10-en.htm#2*.
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