Draft Statement prepared by Evan Leibovitch, Chair of the At-Large gTLD Working Group
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The At-Large Advisory Committee is extremely disappointed by the latest release of the new Draft Applicant Guidebook. In significant ways its changes reflect a deliberate step backwards, away from transparency and accountability, and towards secrecy and arbitrary action. Even more importantly, the new guidebook fails at any more than cosmetic accommodation of critical, Board-mandated policy work undertaken by ICANN's grass-roots community.
After the last DAG was released, the Board requested feedback on two important issues: assistance to gTLD applicants in developing economies, and changing the process of dealing with TLD strings that might be considered obscene or objectionable (the so-called "Morality and Public Order" category of objection). Both these issues were immediately taken up by cross-community groups, which in unprecedented manner produced specific and concrete changes to the application process that would be consistent with existing mandates while addressing community concerns about these two important issues. In both cases, public comment has been essentially ignored,
A substantial part of At-Large's long-time opposition to the Morality and Public Order objection has been with the "Dispute Resolution Service Provider" (DRSP), a process that At-Large has held to be unethical, opaque, and cumbersome. The current implementation requires applicants and objectors to spend vast amounts of money on a needlessly litigious process, opening wide opportunities for gaming while forcing ICANN to make (or subcontract) judgements of comparative morality. This process provides substantial barriers to legitimate objectors while encouraging frivolous objections from well-funded parties.
In the past few months At-Large has worked intensively, together with members of the GNSO and GAC, to provide a community-wide consensus alternative process to the DRSP that would eliminate our objections. The CWG was explicit in charting a path that is simpler and less expensive, while ensuring that objections are properly and independently evaluated well in advance of any necessary Board action. The CWG-recommendations fully implement GNSO Guideline H while achieving full community consensus. Critically, they change the fundamental nature of the evaluation from a subjective comparison of morality to an objective analysis of objections against international law. Yet, with a sweeping comment of "we disagree" in its explanatory notes, ICANN has essentially shrugged off the community consensus and the DRSP concept remains essentially untouched in the new DAG.
We believe that it is the role of support staff to implement policy, not to agree or disagree with interpretations. Consequently, members of At-Large who have been active participants in this process have substantial and justifiable concerns that the CWG details have inadequately and insufficiently presented to the Board, and as a result its recommendations have not received appropriate consideration. At very least we request the Board to defer this issue and allow CWG members to personally advance and explain it.
Another cross-community GNSO/ALAC effort -- to determine ways to reduce barriers to would-be applicants from developing and emerging economies -- would help demonstrate ICANN's global relevance and eagerness to expand Internet access worldwide, while closing the technology gap between rich and poor. This "Joint Applicant Support" (JAS) working group also achieved significant consensus on many important issues and is under approval processes at both the GNSO and ALAC. Given the difficulties of properly bringing forward the CWG recommendations, we urge the Board to hear directly from the JAS about its proposals at the appropriate time.
On the matter of the Independent Objector, critical safeguards of the public interest have either been removed or left out. Rather than a mechanism to prevent applicants and objectors to effect outcomes merely by out-spending their opponents, the IO has been re-architected as a tool to allow the introduction of anonymous, unaccountable, opaque objections. Upon analysing the issue ALAC is now strongly of the opinion that role of the Independent Objector must be eliminated. While we understand its reason for creation, the potential for misuse has been made clear; any benefit it might provide will be far outweighed by its invitation for gaming and bullying. The accessibility issues that the IO was designed to address can be fulfilled if the CWG recommendations are implemented.
It is unfortunate that the DAG has regressed rather than progressed since its last iteration. Rather than incorporate important and clear cross-community direction, Board and Staff have dismissed it as inconvenient or too much of a change from inertia in the wrong direction. According to the response to community initiative, "risk management" now appears to be a primary policy goal of ICANN -- and, conveniently, a primary obstacle to change.
It is unfortunate that we feel the need to be reminded of the "Plan for Organization of ICANN Staff" (May 22, 2003) which states clearly that the role of Staff is to "execute the settled policy" -- not to agree or disagree with it, or indeed affect it at all. Given that the current DAG ignores or repudiates almost all of the significant cross-community consensus presented since the last revision, the At-Large Community has serious concerns about the sincerity of ICANN assertions of being a truly bottom-up process. In ICANN's being judged by actions rather than words, the DAG discredits the ATRT and other claims of increasing accountability.
In this respect, and inasmuch as the At-Large Community believes that significant gTLD growth is necessary to enhance end-user choice and healthy competition in the Internet namespace, we must unfortunately but categorically state that we consider the current DAG to be unacceptable as presented. We request that the Board and staff implement the community process rather than be an obstacle to it.
