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.
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:
- 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)
- 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
- The community must be given due process to "object to the objection", and offer arguments counter to the recommendation to reject a string
- If the objector does not pay a fee to object, the applicant must not be charged a fee to respond
- Neither the Board nor ICANN staff can raise an objection without it being vetted by one of the above processes; specifically
- All objection processes must be transparent; specifically, anonymous objections are explicitly NOT allowed
- 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
- 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.
- 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 multi-stakeholder 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.
- All of Scorecard #6.1, including #6.1.7.1 so long as such use of the Trademark Clearinghouse does not delay registrations
- Simplified complaint format (#6.2.2)
- Decisions should not require full panels (#6.2.3)
- Remove reference to "substantive evaluation" (#6.2.4)
- Six month deadline for filing an appeal (#6.2.10.2)
- A successful complainant should have first right of refusal for transfer (#6.2.12)
However, we draw the line at measures that go beyond protection of public trust and confidence, but are designed to lower standards of protection, reduce due process and to "bully" potentially legitimate strings; these are measures in the Scorecard that, in our opinion, are against reasonableness, community consensus and the public interest. In these instances we support the ICANN Board's response:
- Elimination of reasonable due process (#6.2.5, 6.2.9)
- Reducing standards of proof to not require "clear and convincing evidence" (#6.2.6)
- Elimination of a requirement of bad faith when determining URS action (#6.2.7)
- A "loser pays" regime (#6.2.8)
- Requirement of a separate rationale for filing of appeal (#6.2.10.1)
- Extend URS beyond exact matches (#6.2.13)
- 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.
Geographic names (#8): ALAC supports the rights of political entitles (countries, states, provinces, incorporated cities and counties) to be able to register their names, similarly to trademarks, in the Trademark Clearinghouse, in all appropriate languages and IDN scripts. Anyone wanting to use such names should get appropriate clearances, and be subject to the same name-protection scheme as afforded to trademark owners. However, it is unreasonable for political entities to protect every possible variation (ie, to give the United States government assumed rights to ".america") or colloquial description (is New York entitled to ".bigapple"?). We agree with the ICANN Board response of relying on pre-determined names.
Applicants from developing economies requiring relief (#10): ALAC has long been of firm belief that ICANN should offer a beneficial pricing to applicants who need a rigid criteria regarding location, community service and financial need. We continue to charter and encourage the "JAS" working group to explore ways to reduce barriers within the ICANN application framework and advocate cost reduction for worthy applicants. We reject the role, envisioned by some ICANN stakeholders, that would establish a subsidy fund and/or engage in external fundraising. The effort of ICANN to empower applications from all parts of the world must not be one of charity, it must not pit applicants against each other to demonstrate who is most "worth" for a limited pool of subsidy funds.ICANN staff's refusal to even discuss the concept of differential pricing has hampered attempts to research potential areas of cost saving within the current application framework. And while the Board response to Scorecard # 10 is to await the final work of the JAS, it has already definitively rejected early JAS appeals for lowered pricing. We strongly endorse the GAC's effort to request the ICANN Board to reconsider this regressive and anti-competitive position.
Theme 4: Operational Readiness
Scorecard items 3, 6.4
Theme 5: Business and Market Considerations
Scorecard items 4, 5
Regarding market and economic impact (Scorecard #4): ALAC believes that the market and the public interest is best served by a variety of (well regulated) strings and business models. ICANN should not be in the business of evaluating business models beyond the sustainability of the plans (which are an Internet stability issue). Applications much have contingency plans of what to do in case of registry failure, and ICANN must have similar default plans that result in minimal disruption for owners of domains in financially failing TLDs. However, we believe that "public benefit" declarations within TLD applications will be of dubious benefit, and in any case subject to substantial modification (and difficulty of enforcement) post-delegation. We have already seen registries such as .pro significantly alter their business models from what existed at launch -- while perhaps unfortunate, such market-driven practice cannot and should not be unduly constrained.
Regarding cross-ownership between registries and registrars (Scorecard #5): The At-Large Community was an active participant in the ICANN Vertical Integration Working Group. Our participants in that group were as split in their opinions as the working group was in general when it failed to reach a consensus recommendation.
The above notwithstanding, ALAC wishes to re-iterate its general consensus on a number of points that should be considered regardless of the final cross-ownership regime:
- It is essential that there be mechanisms in place to ensure that cultural and IDN TLDs are not disadvantaged by the rules. Specifically, there is a fear that under some regimes, the requirement to use ICANN accredited registrars and to not self-distribute could jeopardize TLDs that will have a specific regional focus or those using less common scripts or languages. The lack of registrar interest or registrar capability could potentially impact the viability of just those new TLDs that we most want to succeed.
- There should be viable ways for single registrant TLDs to operate effectively. In such a single registrant TLD, all 2nd level domains are used by the registry itself (or its corporate parent) and are not made available to outsiders. The registry controls, and is legally responsible for, all 2nd level domains. The largest projected use is for corporations where the TLD relates to a trademark, but it could also be used for not-for-profits, charities and NGOs. The specific issue is that if there is no demonstrable added value to registrar involvement (since there is no consumer and no competitive issues), such intermediaries should not be required. The benefit to the gTLD eco-system of such gTLDs is that they will serve to acclimatize users to the concept of new gTLDs and will facilitate their acceptance in the general case.
- Compliance will be a critical part of gTLD deployment. It is essential that the rules surrounding the new gTLDs be sufficiently clear and reasonably enforceable; and that ICANN put in place mechanisms to ensure reasonable compliance. The enforcement mechanisms must be sufficiently public that third-party scrutiny and whistle-blowers are welcomed to augment official investigative efforts.
Theme 6: Legal Considerations
Scorecard items 9, 11
Additional theme: Timing Considerations
[ Possible suggestion of staggering the initial round to release TLDs at, perhaps, three month intervals. This will allow ICANN to more easily ramp up, test technical scalability and enforcement capability, and to reassess costs to enable cost reductions for poor-economy applications ]
Proposal by Alan Greenberg:
ICANN Board Notes on the GAC New gTLDs Scorecard (Word Document)
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.
