This work space is designed to hose a proposed ALAC response to the GAC indicative scorecard on new gTLD outstanding issues listed in the GAC Cartagena Communiqué (available at http://www.icann.org/en/topics/new-gtlds/gac-scorecard-23feb11-en.pdf).

BACKGROUND

Earlier premilinary analysis of the Scorecard, based on the ALAC work within the Rec6 Working Group, resulted in a preliminary analysis whose results are available at ALAC - February 2011 - GAC-Board Meeting

At the GAC/ALAC meeting of March 13, 2011, the GAC specifically requested a written formal response from the ALAC to the above-stated Scorecard. I the subsequent days of the ICANN 40 meeting, the ICANN Board and other stakeholders have also requested similar ALAC feedback.

Originally, based on the request of the GAC an original proposal was to group the scorecard items into logical themes that can each be addressed as a whole, and even (should we want) prioritised according to ALAC needs:

• Objection procedure (snapshot #1, 2.1, 12)
• Trademark-based reserved strings (#6, 7)
• Special categories of applications (#2.2, 8, 10)
• Operational readiness (#3, 6.4)
• Business and market considerations (#4,5)
• Legal considerations (#9,11)

As well, consideration was given to one more theme that does not tie into specific scorecard items but is implied in the scorecard document as well as subsequent conversations:

• Timing considerations

As of the end of the ICANN 40 meeting, it was decided to revert to a commentary that would address the Scorecard point-by-point for the sake of the reader's convenience.

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Proposal by Evan Leibovitch:

THEMATIC RESPONSE

Here is a proposal for an ALAC response to the Scorecard based on the predominant themes it describes. First drafting.

The At-Large Advisory Committee (ALAC) welcomes the opportunity to provide a response to the "GAC Scorecard" related to new gTLD creation. ALAC has always had significant challenges regarding both the processes taken to produce the current Applicant Guidebook (AG) as well as its result. We share the GAC's frustration in dealing with this process and appreciate its direct approach to asserting its views in the Scorecard. This Statement describes our response to the specific content of the Scorecard.

We have chosen to address the Scorecard by "theme" as opposed to line-by-line, in part because of the compress timeline required for this Response but also because some themes are spread between multiple Scorecard items (which will be denoted as (#1), etc in the analysis below).

It must be emphasised that, because of the extremely compressed timeline allowed for this response, ALAC has not received the broad At-Large community feedback and buy-in that such a statement would normally warrant. While its authors have solicited comment and ALAC endorsement, this statement is still subject to review and possible refinement pending broader At-Large distribution. If the language below is seen as too sharp, the reader is asked to accept our apologies -- but also to understand that we have had both little time and few words with which to express our concerns.

Theme 1: Objection Procedure

Scorecard items 1, 2.1, 12

The ALAC agrees with the GAC request for the complete elimination of the AG module related to the method of objecting to TLD strings considered widely obscene. Despite broad and prolonged demonstrated community opposition -- most recently through the cross-community "Rec 6" Working Group -- ICANN clings to a needlessly complex, expensive and adversarial process requiring an outsourced "Dispute Resolution Service Provider", an "Independent Objector", and forcing the ICANN Board to either make or delegate judgements of comparative morality. At the At-Large Summit held during the Mexico City ICANN meeting, ALAC explicitly stated that the current process is "unacceptable" and serves counter to the public interest. ICANN's obsession with a judicial, adversarial process provides a barrier to legitimate objections and needless expense to TLD applicants defending against trivial, unsustainable objections. We continue to hold that position and have responded accordingly to subsequent AG revisions which have maintained this unfortunate procedure.

We believe that the experience of the .XXX domain approval -- a decision with which ALAC agrees, counter to the GAC advice -- offers a useful point of reference. The public interest is best served by being reasonably liberal in string acceptance, lest ICANN be drawn into unfamiliar territory of content-based judgements. The threat of national blocking of domains will exist, as it already does in the case of second-level domains and even occasionally for top-level domains. Sovereign countries can and will exercise national policy, which could even mean blocking domains that ICANN might accept as benign. As the GAC has been generally silent on existing cases of domain blocking as threats to Internet stability, so we are cautious regarding ongoing threats of this kind. The global Internet-using public interest is badly served in being deprived of a TLD string (and a potential community focal point) simply because of the perceived insult of a small number of national governments. The Internet does not exist to only provide information that pleases everyone.

In this light, we strongly endorse the demand of Scorecard #1 to completely eliminate the existing AG's Module 3 relating to what is now obscurely called "Limited Public Interest" objections. As a replacement we endorse Scorecard #2.1 with the following conditions:

1. A similar objection mechanism must exist for non-governmental organisations to launch objections (either a better-resourced branch of ALAC, a revised version of the Independent Objector, or something similar)
2. The GAC (and other bodies able to raise objections) should satisfy the broader community that objections it will raise -- as a global advisory body -- reflect a reasonable consensus between members and do not just reflect the whim of a small number of advocates
3. The community must be given due process to "object to the objection", and offer arguments counter to the recommendation to reject a string
4. Neither the Board nor ICANN staff can raise an objection without it being vetted by one of the above processes; specifically
5. All objection processes must be transparent; specifically, anonymous objections are explicitly NOT allowed
6. The Board must have ultimate decision making authority with the unimpeded right to override objection advice; as ICANN's Bylaws already allow, it may contract external expertise to advise on principles of international law and treaty
7. Split decisions -- in which even rough consensus between the GAC, ALAC and other stakeholders is impossible -- should weigh in favour of approving the string under objection. Globally blocking a TLD string on public interest grounds requires, in our view, consensus that the very existence of the string damages the public interest.
8. Insult or disrespect alone should not be suitable grounds for a successful objection.

In agreeing with Scorecard #12, we also believe that it is simple common sense to be able to alert TLD applicants, as early in the application process as possible, to potential objections. Furthermore, applicants should be given the ability to suspend the application process (ie, a "time out") while such disputes may be resolved at such an early stage. Applicants, having entered such good-faith negotiations with potential objectors, should be able to make minor changes to their applications in order to comply with a negotiated settlement.

At all stages the emphasis must be on achieving consensus and amicable resolution rather than confrontation and adversarial processes. We are reminded of Lawrence Strickling's keynote address during the Opening Ceremony of ICANN's recently concluded 40th meeting:

“Choosing between competing interests, rather than insisting on consensus, is destructive of the multistakeholder process because it devalues this incentive for everyone to work together.”

Theme 2: Trademark-based reserved strings

Scorecard items 6, 7

We agree that a well-functioning trademark protection regime serves the public interest. Substantial portions of the Internet-using public have encountered attempts to mis-represent brands; indeed the execution of "phishing" requires a bad actor posing as a trustworthy one. To that end, ALAC fully supported the broad community consensus recommendations of ICANN's Special Trademark Issues (STI) working group. We are totally in favour of activity that prevents any misrepresentation of known trade names -- including names that may not be conventionally registered as trademarks because they are used in other contexts (such as Commonwealth countries' recognition of common-law marks or aboriginal shared wisdom).

However, the At-Large community has been alarmed by what has become an environment of trademark obsession within ICANN. The original "IRT" group chartered by the Board, which shunned community participation, went far beyond reasonable trademark protections and would have empowered ICANN to enforce protections well beyond that afforded by existing law or treaty. Extension of protection to prevent strings which were "similar" to marks, for instance, was a clear example of stepping outside of common sense and into the realm of stifling competition and choice. It is unfortunate that such anti-public-interest foolishness, attempted by the IRT but rebuffed by the STI recommendations, has crept back into the GAC Scorecard. The assertion of of these extreme measures as in the public interest and serving consumer protection is baseless and almost offensive.

Indeed, we find it unfortunate that such a disproportionate part of the Scorecard itself has been given to this issue, offering detailed remedies while the rest of the Scorecard deals in high-level concepts. While we share many of the GAC's concerns in this area, we believe that a sense of fair play and common sense is paramount, as well as a sense of proportion regarding Intellectual Property issues being but one part of the public interest related to Internet domains.  

In this regard, our approach to the Scorecard is mixed.

We support many of the Scorecard's name-protection measures which are consistent with the STI consensus recommendations and even a few that go beyond.

1. All of Scorecard #6.1, including #6.1.7.1 so long as such use of the Trademark Clearinghouse does not delay registrations (#6.1.7.1)
2. Simplified complaint format (#6.2.2)
3. Decisions should not require full panels (#6.2.3)
4. Remove reference to "substantive evaluation" (#6.2.4)
5. Six month deadline for filing an appeal (#6.2.10.2)
6. A succuessful complainant should have first right of refusal for transfer (#6.2.12)

However, we draw the line at measures that are designed to be punitive to potentially legitimate strings; these are measures in the Scorecard that, in our opinion, are against the public interest and in many cases common sense. In these cases we support the ICANN Board's response:

1. Elimination of reasonable due process (#6.2.5, 6.2.9)
2. Reducing standards of proof to not require "clear and convincing evidence" (#6.2.6)
3. Elimination of a requirement of bad faith when determining URS action (#6.2.7)
4. A "loser pays" regime (#6.2.8)
5. Requirement of a separate rationale for filing of appeal (#6.2.10.1)
6. Extend URS beyond exact matches (#6.2.13)
7. Lowering standards of proof in Post Delegation Dispute Resolution Procedures (#6.3)

In regard to Consumer Protection measures as stated in Scorecard #6.4 (except for #6.4.4, see below), ALAC strongly agrees with the GAC positions (though we also agree with the "due care" response from the Board related to #6.4.2). At-Large has long indicated to ICANN a dissatisfaction with enforcement efforts, and re-enforces the sentiments behind #4.2.3.

Theme 3: Special categories of applications

Scorecard items 2.2, 6.4.4, 8, 10

Despite widespread community request, ICANN has not budged from its long-standing position of only two categories of applications -- "regular" and "community". This is despite the fact that GNSO policy on gTLDs allows for categorization, and indeed allows for differential pricing for different categories (another policy conveniently overlooked in all versions of the AG to date).

The GAC Scorecard, in our view, simply adds one more strong voice to the need for categorization beyond what now exists. While arguments have been made -- and should be heeded -- about the concern that categorizatioin mechanisms would be subverted for financial gain (also known as "gamed"), ALAC holds the view that such concerns are not sufficient to resist implementation of new necessary categories. Even if gaming succeeds, in our view it is prefereable to let a few applications "slip through the cracks" than to deny the public service and innovation possible through creating a small number of new categories.

The ALAC view of categories indicated in the Scorecard as are follows:

Extension of the "community" designation to industry sectors (#2.2, 6.4.4): In principle, we endorse the GAC position of wanting a special status for TLD names which indicate entire sectors which may be subject to regulation (such as .bank, .pharma, .lawyer). We are unclear about what form of extended evaluation is expected for such applications, and how the evaluation criteria are to be verified and enforced post-delegation. At-Large members have been following the High Security TLD Working Group and applaud its efforts; however its work seems too highly focused only on the financial services industry and might be overkill for other sectors. We are also concerned about the limits of such a designation; for instance, would ".shop" -- a real application-in-waiting -- be affected, since many countries regulate retail sales? We understand the public-protection aspects of such a recommendation but are unsure if its execution is sufficiently evolved to be implentable without incurring significant delay to the new-gTLD process. Perhaps this "category" of TLD applications only should be delayed until appropriate public-interest concerns and solutions are studied before implementation.

Theme 4: Operational readiness

Scorecard items 3, 6.4

Theme 5: Business and market considerations

Scorecard items 4, 5

Theme 6: Legal considerations

Scorecard items 9, 11

Additional theme: Timing considerations

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Proposal by Alan Greenberg:

ICANN Board Notes on the GAC New gTLDs Scorecard (Word Document)

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DETAILED RESPONSE

ALAC have been widely accused, incorrectly, of being lock-step with the GAC position. This document will be able to demonstrate where we are in sync and where we diverge, along with polite counterpoints and suggested modifications that could (IMO) be more useful in the evolution of GAC policy development than the response It's receiving from the Board.

1. The objection procedures including the requirements for governments to pay fees

2. Procedures for the review of sensitive strings

2.1. String Evaluation and Objections Procedure

2.2. Expand Categories of Community-based Strings

3. Root Zone Scaling

4. Market and Economic Impacts

5. Registry – Registrar Separation

6. Protection of Rights Owners and consumer protection issue

6.1. Rights Protection: Trademark Clearing House (TC)

6.2. Rights Protection: Uniform Rapid Suspension (URS)

6.3. Rights Protection: Post-delegation Dispute Resolution Procedure (PDDRP)

6.4. Consumer Protection

7. Post-Delegation Disputes

8. Use of Geographic Names

8.1. Definition of geographic names

8.2. Further requirements regarding geographic names

9. Legal Recourse for Applications

10. Providing opportunities for all stakeholders including those from developing countries

11. Law enforcement due diligence recommendations to amend the Registrar Accreditation Agreement as noted in the Brussels Communiqué

12. The need for an early warning to applicants whether a proposed string would be considered controversial or to raise sensitivities (including geographical names)