ICANN

 

Moderator: Terri Agnew

January 18, 2017

9:00am CT

 

 

Patrick Penninckx: Thank you. I hope you can all hear me. Yes? Thank you for organizing this Niels together with the Council of Europe. And I will be very brief.

 

It will not be a surprise to you that for the Council of Europe (are) updating for fundamental rights and freedoms in the ICANN policymaking. It’s crucial. And that’s why we also launched and asked to review the process for the community top level -- the main names. And we wanted to do that in order to ensure that any next process be more transparent, accountable, and that we deal with the scales and valuable resources in the most adequate manner.

 

That’s why we asked Kinanya Pijl and Eve Salomon to do this review which we presented to you already very briefly in ICANN 67 9 (unintelligible).

 

So, that’s all I want to say...

 

((Crosstalk))

 

Paul Zamik: It’s Paul Zamik on the phone. I just joined the conference. Paul Zamik.

 

Patrick Penninckx: Okay. Thank you, Paul. And Niels, back to you.

 

Niels ten Oever: Excellent. Thank you very much, Patrick for that introduction. And we should all of course not forget that a lot of the work on human rights on ICANN has also converged on allowance of the report of ICANN and human rights by the Council of Europe. Also, which reports have been published by Article 19 and others and is of course now part of the work of the cross community working group on enhancing ICANN accountability.

 

But without further ado and going more into the details, we have the pleasure of having on our call Eve Salomon and Kinanya Pijl. Eve Salomon is an international consultant and legal expert on media law and human rights. And Kinanya Pijl is a PhD candidate in law at European University in Florence.

 

And they both are the co-authors of the report the Council of Europe on community GTLDs and Human Rights. And they will give us a short overview of the report so to refresh our minds so that we have a good basis to start our discussion on.

 

Maryam would you please be so kind to load the second slide deck. After which Eve and Kinanya can take it away and do the presentation. Would that work, (Mariam)?

 

Maryam Bakoshi: Hi, Niels. Please hold for one second.

 

Niels ten Oever: Okay. That one second gives me the opportunity to thank the ICANN staff for making this possible, to get the recording possible and helping us making this happen because else this would not have been possible.

 

So Eve and Kinanya, perhaps you could already start off while (Mariam) is loading the presentation. Would that be okay.

 

Kinanya Pijl: Yes. That would be fabulous. Can you hear me?

 

Man: Okay.

 

Niels ten Oever: Yes, we hear you. But please dispense.

 

Kinanya Pijl: Okay. That’s fantastic. So, in the commission by the Council of Europe, Eve and I drafted this report. The report provides an in-depth analysis of ICANN’s policies and procedures with regard to community-based applications from a human rights perspective.

 

Our focus is on what we have learned from the initial rounds of community-based applications. And for the report, we conducted interviews with community- based applicants as well as ICANN staff and the ICANN ombudsman, for example.

 

Niels ten Oever: Eve, I’m very sorry to break in. But there is a bit of echo on the line and you sound a bit distant. So if you could get a bit closer to the microphone, we might all be able to learn more from what you’re saying. Thank you.

 

Kinanya Pijl: Okay. Great. Can I scroll in the presentation? Yes, wonderful. So, our report provides an overview of which universal human rights apply to communities and to ICANN (TLDs) and how ICANN should regard human rights when accessing the application.

 

The human rights perspective here is particularly relevant. It (provides) ICANN’s adoption of the new bylaws as Niels already mentioned in his introduction. And our report showed that the community (TLD) process failed to adequately protect freedom of expression, freedom of association, and nondiscrimination. And these rights fell short in large part because due process did not meet acceptable standards.

 

Any failure to follow a decision-making process which is fair, reasonable, transparent, and proportionate endangers freedom of expression and association as well as risk of being discriminatory.

 

So, our first finding in the report concerns a lack of a clear vision of the purpose of community- based TLDs. So, what is exactly the problem that community-based TLDs are to resolve? So, what are the (unintelligible) interest value community-based TLDs are to protect?

 

And in our report, we provide some first ideas (unintelligible) for a direction of these values that gTLDs could protect, which could be the protection of vulnerable group or minorities, protection of pluralism, diversity, inclusion, and consumer or internet user protection.

 

And related to this finding, we found that there’s no clear definition of community for the purpose of these applications. Still very low. Is it - am I not - is it impossible to hear me or…?

 

Man: I can hear you.

 

Niels ten Oever: It’s not impossible but it could be better.

 

Kinanya Pijl: Yes. I think it’s an echo in the room and it’s a bit difficult to change now, I think, so.

 

Niels ten Oever: It’s okay. Just go ahead. No worries.

 

Kinanya Pijl: Okay. Wonderful. So, related to this problem of not clearly defining the purpose of community-based applications, we found that there’s no clear definition of what community is -- so for the purpose of these applications. The initial broad definition of community as formulated by the GNSO Policy Recommendation had been restricted both in the applicant’s guidebook, in the CPE Guidelines, and by the EIU. And as a consequence, the process goes against the spirit and the purpose of the GNSO wants formulated. Next slide.

 

So, we have to pay particular attention to the key processes affecting community-based applications, just on the one hand, community objections and on the other hand community priority evaluation to assess whether they are fair and reasonable -- so, with a specific focus on due process.

 

We concluded that there are well-founded concerns, that weaknesses within these specific processes may affect the human rights of community applicants.

 

When it comes to community objections, our first finding is that we found inconsistencies in the determination of whether entities had standing to object. The second thing that we found is that these panels have a slight implicit standard when making their decisions. While such implicit standards ought to be made explicit to guarantee maximum predictability in alignment with the goals of the program as formulated by the GNSO.

 

I’ll try to slow down, absolutely. I hear you.

 

So, when it comes to community priority evaluation, we found that there is no external quality control over on what the EIU does and so therefore their procedures and decisions, despite this being a term of the contract between the EIU and ICANN.

 

Our second finding when it comes to CPE is that ICANN has absolved itself of all responsibility for determining community priority, despite the EIU insisting that they only have an advisory role. So as a result, there’s no clear appeal mechanism and both say they are in the end not responsible for the findings for the decisions. Next slide.

 

Great. So, then we looked into the accountability mechanisms that are in place, and generally most of the accountability mechanisms are simply not designed for this process. So, then we’re talking about the reconsideration requests in the independent review process, the ICANN ombudsman, and the courts.

 

And as a consequence, for the fact that these processes simply have not been designed for community-based applications and have not been formulated as a substantive appeal, they have been a very limited value to the community applicants.

 

And there were more general concerns that applied both to the community objections as well as to the community priority evaluation process, which are on the one hand that the costs turned out to be really high, the time taken was way longer than expected, there were conflicts of interest as well as a number of areas of inconsistency and lack of transparency which at least led to accusations of unfairness and discrimination.

 

ICANN should at least guarantee maximum predictability of behavior of these delegated decision makers -- and to do so, it needs to make sure that there is no conflict of interest, it needs to provide full disclosure, and it needs to integrate the quality control program. And this relates to the point thereafter that there’s no appeal mechanism in place within the community objection or the community priority evaluation process. So, there should be availability of an appeal on the substance of the argument and on the representativeness and eligibility of the objectors.

 

And the last point again is what we also saw in the CPE, as the lines of responsibility are simply unclear. So, in the end, nobody really knows who is responsible for a decision from the EIU. And similar arguments have been put forward when it comes to community objections. Next slide.

 

Eve will come in here. Eve?

 

Niels ten Oever: I can hear someone typing, but I do not hear Eve on the phone.

 

Kinanya Pijl: Yes, you hear me, Kinanya typing.

 

Niels ten Oever: Yes. I hear Kinanya.

 

Kinanya Pijl: Eve, are you there?

 

Niels ten Oever: So, while we’re - no Eve we cannot. Have you connected your audio or are you called in? If not, can you give your number to the ICANN staff so that they can call you in? Or connect your audio at the top of the screen at the little telephone button.

 

While Eve is doing that, Kinanya could you…

 

Kinanya Pijl: Yes.

 

Niels ten Oever: …perhaps continue?

 

Kinanya Pijl: Yes, I could. So, based on these findings -- and of course, we go through it relatively quickly now -- with a look to the future and to the next round of applications, we believe that greater clarity is needed on the purpose of community TLDs and why ICANN has formulated this specific program -- so who do we try to protect and what are the values behind it.

 

Additional (unintelligible) firmly grounded in the human rights - Eve? In the human rights that are the core of this project, which is freedom of expression, freedom of association, and nondiscrimination.

 

Eve should comment here. Can you hear me?

 

Eve Salomon: Can you hear me now?

 

Kinanya Pijl: Yes.

 

Eve Salomon: Hello?

 

Niels ten Oever: Welcome, Eve.

 

Eve Salomon: Yes. Okay.

 

Niels ten Oever: We can hear you.

 

Eve Salomon: Hello. Sorry about that. Technical mishap. Okay. I’m now here. So, thank you very much Kinanya.

 

You’ll see the slide. I’m not going to read it out because hopefully everybody can see what (unintelligible) them. But there are two major areas that need to be addressed going forward that we found as a result of our research.

 

First, we believe whether they -- ICANN -- to go back to basics and get clarity on (unintelligible) on what community top level domains are actually for. It seems to us that somewhere between inception and execution, the original (unintelligible) of community DLTs has been lost.

 

What was originally an intention to ensure that, for example, first-nation tribal groups could protect their online identity and have a safe space to discourse has now become a potential way for commission to (unintelligible) the option process.

We therefore think it is important to review and refrain ICANN intentions. Whether it does intend to give priority to commercial so-called communities -- what I would call (unintelligible) communities -- as well as second and third sector ones -- for example, governmental and public sector and not for profits.

 

Second, there’s a process. Basically, the concerns that we identified that Kinanya has explained to you need to be addressed -- whether or not the overall general purpose remains the same or changing. As we’ve discussed, a failure of due process has a damaging effect on other human rights. That’s a process right and there’s a far greater likelihood that other human rights will be protected.

 

So on balance, rather than trying to sit on and fix the existing process, we recommend there is a (unintelligible) review based on the conclusions ICANN reaches on the purpose of community reviews. Assuming -- and I admit this is a big assumption -- that ICANN decides that the community is not (meant) the first sector commercial communities, you put up a strawman suggestion that provides an altogether different route to benefit the communities. And that’s sort of summarized on your slide.

 

Rather than trying to make communities fit into a variety of existing ICANN routes, we suggest creating a different stream altogether. The model we use here comes from (broadcasting) were regulators across the world have found a different licensing or community media.

 

So, we suggest that by making the regulatory issues appropriate and suitable for communities who are not motivated by money and are prepared and able to hold their registry to account, you can get around many of the problems of how to determine whether or not an applicant is or is not genuine and worthy of fast tracking around (unintelligible).

 

In conclusion, we feel that as ICANN matures and takes its regulatory responsibilities more seriously -- and remember, the allocation (unintelligible) is a regulatory activity -- ICANN can learn and borrow a lot from other regulatory societies, including how best if we see laudable, public interest and human rights objectives.

 

Thank you. Back to you, Niels.

 

Niels ten Oever: Thank you very much Eve and Kinanya for this presentation and for writing this report. You are handing out quite some rough justice, but also giving us some horizons into the future how we could improve this process. And I think quite a lot of people will want to discuss this with you. So, I really hope you can stay with us on the call.

 

And to ensure a variety of voices, we’ll now go into five discussions form different stakeholder groups after which we’ll open the floor for Q&A and discussion with us all.

 

So I’d like to first head to Mark Carvell who is the Vice Chair of the Governmental Advisory Committee as well as co-chair of the GAC Working Groupon Human Rights and International Law. Mark, can I ask you to be the first one to comment to these reports?

 

Mark Carvell: Yes, thank you very much Niels. Just a slight, small correction to your introduction. I’m not actually Vice Chair yet. I’m a Vice Chair Elect. I will become a Vice Chair at the conclusion of the GAC meeting in Copenhagen. But - and I should emphasize my contribution to this discussion is on a personal basis. I’m not representing the GAC. I’ll explain very briefly where the GAC is in respect of this report shortly.

 

But first of all, from a personal perspective, it’s been rather frustrating actually as a member of the Governmental Advisory Committee to hear the increase in concerns expressed by community-based applicants in the current round and also commentators that thigs were going wrong in the ICANN process for prioritizing applications from community-based organizations, and groups, and so on in the process because it was a vision that many of us shared in the early days when the round was being discussed and formulated.

 

There was a vision that communities would find this an opportunity for them to have their own space in the domain name system where they could meet, express themselves, exchanges views, undertake deliberations, and really you know, assemble online on a worldwide basis. That was the vision -- that such applications would actually be prioritized in the round.

 

But as the round progressed and many of these applicants found themselves in contention with wholly commercially-based applicants, they found that they were starting to lose ground and that they were not actually enjoying the process for favoring them, for giving them priority that they had expected.

 

So, this report really is a key review of what has gone wrong, what the kind of deficiencies of process, the lack of opportunity for appeal against decisions, inconsistencies of evaluation, and so on, which are detailed in the report very comprehensively. The work was conducted very effectively through interviews, through reviewing the state of play with a number of applicants and so on.

 

The GAC during this time, you know, could not intervene on behalf of individual applicants. I found that personally very frustrating because that was not what the GAC was there to do. We were there to ensure the process was fair and the design of the round and so on, all the processes would operate fairly. That was not happening. Became as I say an issue of increasing concern for many of us on the GAC.

 

So, we were very pleased that the Council of Europe stepped forward as an observer IGO on the GAC to undertake and commission this report -- which Kinanya and Eve have prepared. And really appreciate all the work they put into it. A very impressive report.

 

And I really endorse its consideration in the process for developing the next round as providing corrections to what has gone wrong -- to restore that vision that I talked about when I - at the start of my speaking just know to restore that vision. And that would reflect well on the whole community.

 

So that’s where we are. The GAC processes, well we presented it through the working group on human rights and international law with a message to GAC colleagues to look at the report, to review it, examine the recommendations in particular. And we will discuss those at the forthcoming meeting in Copenhagen with a view to endorsing I hope all of the recommendations. But as I say, that’s for discussion of the committee and plenary.

 

So, that’s basically how I see the value of this report and its impact for the future -- restoring that vision of the opportunity for communities to express themselves, to have their place in the domain name system.

 

I hope those opening remarks are helpful. Thank you.

 

Niels ten Oever: Thank you very much, Mark. We see a clear line now developing with Eve, Kinanya, and Mark, our GAC Vice Chair Elect there. So now I’m very curious to hear from Chris Disspain, one of the ICANN board members who also -- and there I’d like to echo Mark -- will speak on personal behalf and not on board of the ICANN board. So, I’d like to invite everyone to speak on their personal behalf so we can have an animated discussion in which we can also explore different opinions.

 

So Chris, please come in.

 

Chris Disspain: Niels can you hear me?

 

Niels ten Oever: We can hear you very well, Chris. Great.

 

Chris Disspain: Can you hear me? Excellent. So thank you. Sorry, thank you very much. I will be extremely brief because I’m here to listen and to take part possibly in a discussion.

 

But in simple terms, I read the report with great interest. I understand that, you know, there are varying views in the community. I get slightly concerned when I hear people talk about, you know, ICANN should do this and ICANN should do that.

 

And my concern is simply that everyone is clear what that means, because as far as I’m concerned, what that means is ICANN is acting on the policy recommendations of the community -- whatever the relevant community is. And in respect to this as (unintelligible) in essence the policy goes to the GNSO.

 

Any next round of new (GDLTs) is going to be subject to work done in the GNSO on the way that a new or updated applicant guidebook should be - changes that should be made to that. And so, I view this report as being extremely useful and important input into the GNSO as it goes through the processes of considering the ways in which masses in any future rounds in new GTLDs should be dealt with.

 

And in essence, that’s my current view and that’s all I really want to say at this point.

 

Niels ten Oever: Thank you very much, Chris for that strong but short answer. That’s how we like it. Thank you very much.

 

And now I’d like to go to another part of the community namely to Jamie Baxter of Dot Gay. Jamie, are you there?

 

Jamie Baxter: Yes, I’m here. Good morning. Can you hear me okay?

 

Niels ten Oever: We can hear you very well. Great to hear you. Welcome.

 

Jamie Baxter: Perfect. Thanks again for inviting me to this webinar. And we’re engaging on this topic. I think it’s incredibly important.

 

I certainly do agree with what Chris has just said about taking the time to review and reflect and ensure that this is done correctly as we go forward. But I would like to just take a second to take a step back and correct something you said at the beginning of the call, Niels and that is that we’re finished with the first round. Because in fact, we’re not finished with the first round.

 

And I think what’s important to note about that is that just because we’re looking ahead to the second round, we certainly shouldn’t be excusing any of the discriminatory behavior or other claims that have been put forth in the current round -- many of which have been documented in not on the Council of Europe Report but also in an independent report produced by Professor William Eskridge from Yale Law School in support of our case, which I encourage all of you to read through with respect to the nondiscrimination issue.

 

So again, I do agree that it’s important that we take a really hard look at where things went wrong. Many have suggested in the implementation stage. I think we all concur that GNSO policy was rather clear. And how is it that we got so far off track as we moved through the first round and turned the community applicants into the suspicious ones as opposed to the ones that were intended to be protected.

 

So, we certainly have been more than willing and able to contribute to the ongoing efforts looking forward, and we certainly appreciate the Council of Europe taking the time to reflect and to examine what has actually taken place in the first round. And I do just want to reiterate that it is not finished. And we shouldn’t all feel like it’s okay to just step over those who have been abused in this first round just because we’re looking to the second round. I think there’s still time. I think there’s still methods and there’s ways that we can get it right as it was intended in this first round. Thank you.

 

Niels ten Oever: Thank you very much Jamie for making that strong opinion. And again, there also reaffirming points from the report and completely correctly correcting me in making that mistake. I’m very sorry about that.

 

So, we have urgent issues to still address from the previous round that is actually still ongoing while people are seeking redress. But we also need to look forward to see where we’re going.

 

And on that point, I’d like to call on the expertise of Avri Doria, internet researcher but also co-chair of the subsequent gTLD procedures working group and of course a long time active member of the community to shine her light on this issue. Avri, please come in.

 

Avri Doria: Okay, thank you. This is Avri speaking. Hopefully I’m loud enough and can be heard.

 

So like everyone else, I’m not going to be speaking as the co-chair. However, as the co-chair I do want to say that I very much appreciate this report and I think it’s very important material for the working group to really work through. Everything else I say is truly personal opinion.

 

So, one of the things that I really liked in it is the notion of going back to the policy and going back to the intention and tone of that policy. It’s part of what Jamie was just referring to. The whole notion was to be supportive of communities. How could we encourage them? How could we support them? How could we protect them?

 

Yes, tribal we used as an example but they weren’t the only kind and I really want to bring up that historical tidbit -- that the report seems to indicate that the tribal support was the purpose. And no, it was one example.

 

So I think - but what happened is instead of it being a supportive process, the (AGB) turned it into a gauntlet, turned it into something dangerous, scary and very expensive for any community to go through and that was a problem. That was a mistake that was made in the implementation but at that time, you know, we really had no way to deal with implementations after the policy was delivered. It was in somebody else's hands.

 

Processes exist now that hopefully will change that in the future. Part of going through the process the first time while we were talking about supporting the communities, one of the things we really turned our back on was some of the notions that might have been learnt from the previous round that had been the supportive round. We became so afraid of what was called the beauty contests although I think the report refers to a beauty by another term probably to contest but of a similar thing and I very much appreciate the way they kind of go back to that notion of thinking about is there a way to do some sort of prescreening for communities beforehand, in a supportive, understanding way that basically takes it out of being a financial competition for things.

 

We've gotten into this value in ICANN that says every other criteria is difficult or maybe may have degrees of subjectivity in it and therefore money is the only criteria we can use to determine when something is right, when something is wrong, when something could happen, when something shouldn't happen.

 

So the idea that we use criteria - and I think we've grown much better at working with criteria to make decisions beyond the economic since the (AGB) came about. The other thing that I'd like to mention is something that's alluded to in the report but isn't gone into deeply is certainly the report accepts the interrelation of all human rights and it does mention the work of UNESCO but really doesn’t at any point sort of zero in on economic social and cultural rights that are a critical part of the (TLB) process; whether it's seen in (IBN)'s, whether it's communities, what have you, the strong impetus is, you know, we talk about competition and that is one of the economic rights but it's not just competition among those that already have, it's got to be competition for those who want to compete but who - yet and support of communities, coherent communities within the population is indeed a critical piece.

 

So, you know, looking at this whole work, looking at the whole how do we see the work we're doing through a human rights lens I think that's an extra element that needs to be brought into it. But as a place to start the conversation as tools for us to work with, I think this report is really a good motivator. Thanks.

 

Niels ten Oever: Thank you very much Avri for adding some horizons and also helping us in some concrete way forward. If you do not mind, I'll ask you - I'll make use of my - maybe abuse my position of chair a bit but then I'll ask you, what are the concrete steps on how this could be improved in the (unintelligible) duty of the procedures working group or anything that should be done elsewhere so just to help us think of very concrete ways to also make the concrete very concrete for us?

 

Avri Doria: Okay, well first of all, yes, I think we need gTLD process, subsequent procedure work PDP is indeed the right place to basically look at the (EGD) to look at the original policy, look at the interpretations, to look at the results and to try and correct it.

 

As I said last time we didn’t have implementation review teams and so basically you know, had very little to say of no that's not what we meant or even if we did say it when we refused the (AGB), there was no reason for anybody to (listen) when we said it. So, and we did say it. So I think that discussing this in the new gTLD subsequent procedures PDP working group, this time I got the name right or all of the words in the right order, is important, it's a critical place, it's the place for the human rights concerned people to partake and I think it's very important that once we get the (policy) that we do make judicious use of the implementation review teams (concept) to make sure that, you know, what is implemented is indeed consistent with the intent of the policy as opposed to turning the policy on its head as was done last time.

 

So I think that's the concrete. I think there's a lot of some of which I would jump up and down and agree with and some of which I jump up and down and well, wait a second, you know, let's think about that some more, discussed in detail but I really believe that is the place to work on it with the outside.

 

Now, in terms of the current ones, you know, that's in our appeal system for better or for worse and I can only hope that those that are hearing and deciding on appeals read this and take it seriously. Thanks.

 

Niels ten Oever: And that was the sound of me talking against my muted microphone. Thanks so much for that very clear information and comment Avri. So, before opening the floors, I'll already invite people to get their hands up and get into queue for responses, I'll invite our last discussants, Cherine Chalaby of the ICANN board to also give her opinions and impressions from this discussion and the report on this issue and also see and ask a bit of guidance from her where Cherine thinks we should focus on following up. Cherine, please come in.

 

Cherine Chalaby: Niels, thank you very much. I echo what my colleague (unintelligible) said about how (excellent) this report is and thank you to Eve and (unintelligible) for comprehensive and (excellent) report. (Unintelligible) observation, general observation, I will give a personal observation on each of the (as of) recommendation. And I want to say they are personal because I cannot represent the views of the (unintelligible) hasn't got a position on these recommendations so I'm expressing my personal views.

 

So on the first area which is definition of community and public interest, I think this would be a real interest to the GNSO as a recommendation although I know it will be challenging, I remember last year there was serious discussion about the definition of global public interest and public interest and it will be a challenge to get the community to agree to our definition.

 

This is something, a good objective here to go for it and may be challenging. In terms of the community objections I would agree that the dispute resolution process and the objection process is more complex and you have to remember that the new gTLD (last rounds) or current round is a real huge mega change management (undertaking) and therefore the processes were untested in my view and we have seen some real sound examples, live examples or objection and termination inconsistencies.

 

So I think there is some basis here for the community to develop standards and procedures for subsequent rounds, there's no doubt about that. In terms of the community priority evaluation I personally would comment that I have observed inconsistencies applying the (AGB) scoring criteria for (CPG)'s and that's a personal observation and there was an objective of producing adequate rational for all scoring decisions but I understand from feedback that this has not been achieved in all cases. So this is one of the recommendations, the recommendation (unintelligible) important recommendation in order to be taken into account very seriously.

 

In terms of the accounting mechanism, I do agree that the accounting mechanisms that are currently in place, mostly was process and procedures while the merits of the issuant complaints. I have detected throughout the last two or three years the frustration on some of those objectives and the applicants and so on and there was a place really to go to and discuss the merit of the issue and it was very difficult to challenge the processes because the processes whether it was a process followed by staff, (aboard) they were really following the process very closely and (unintelligible) to challenge that. So I can detect immense frustration, there should be here some, real improvements. I like this recommendation and I'm hoping the GNSO will look into that as well.

 

And then to the area where the final one regarding the recommendation for the next round where there are several suggestions whether we should have the (unintelligible) files or (unintelligible) and so on and so forth. I think we've had this kind of debate, this is not going to be an easy one to make. We had this kind of debate in the beginning was, should it be batches or not; eventually we didn’t end up with anything other than a long list of applications.

 

Suffice to note, you make one of the points and you say that staff have recommended a very community application to be considered but in the subsequent (round) and I've checked with staff and they don’t recall making a recommendation of the program review report. Nevertheless, the thought of the idea is a very valid one and your (five) suggestions for the next application round should be of real interest to the GNSO. Thank you.

 

Niels ten Oever: Thank you very much Cherine for those very thoughtful comments. I think we have a great input for discussion here but I do not yet see people's hands up in the queue. So while we're waiting for people to queue up and commence, I would like to - oh, I see a queue forming but I would also like before we end is we also circle back to the authors to get their response. But let's first get some responses from the queue.

 

I see Vidushi Marda is in the queue, Vidushi, please come in.

 

Vidushi Marda: Hi, thanks Niels, this is Vidushi for the record. I work at the Center for Internet and Society in Bangalore and I'm also a member of the cross-community working party on Human Rights. I had a question for Eve and Kinanya that's based on some of the work that I've done for the (CCWG) on subsequent procedures.

 

So one of the issues that I've encountered is to try and understand the definition of community as it was pointed out in your report. But also to understand what the definition of significant objection from the community is. I'd be very curious to know whether you had come across any discussion on specific instances on the topic and also if you would have a specific recommendation with respect to how to begin to understand that particular (dom) as well, thanks.

 

Niels ten Oever: Thank you very much Vidushi. I will read out the comment by Alan Greenberg and then take the comments from Constantinos Roussos and then circle back to Kinanya and Eve for some earlier responses. So Alan said that one of the issues being discussed in the PDP is to have rounds, is to not have rounds, but to just allow applications to come in and be processed in that order. There may be impacts on community TLD's if that's adopted.

 

But Constantinos, please come in.

 

Constantinos Roussos: Hello, can everyone hear me?

 

Niels ten Oever: Yes, very well, thank you.

 

Constantinos Roussos: Okay, excellent. Excellent. First of all I'd like to say happy New Year to everyone and I'd like to thank everyone that worked on this report, Eve and Kinanya did fantastic job and I'd also like to echo the comments by Jamie Baxter about the round not finishing. I'd like to say that in our case with (unintelligible) we believe we've done more than we had to do in order to showcase that we're not authentic community applicants and of course since we're a part of a (unintelligible) engagement process and we're still under reconsideration request with the BGC, I'd like to say that providing feedback to the next round of applications, which is ourselves, that have gone through the entire process (community) objections and (CPE), we would like to provide feedback but in our cases we want everything to be resolved before we can (give) any meaningful feedback that would be useful for everyone.

 

Also when it comes to recommendations and decision making, I'd like to ask a question which is a primary question that was posed in this report, is who decides and who makes the recommendations and when it comes to all of these - everyone understand, yes, there's inconsistencies of issues, it would be useful for everyone at ICANN to at least recognize that there were some issues and also find a way to make decisions that are predictable and the public interest and also step away from the AGB and look at the global public interest.

 

So I'd like to say thank you again to everyone and this was a great Webinar and we appreciate everything. Thank you.

 

Niels ten Oever: Thank you very much for that concise remark Constantinos, thanks a lot. Okay, so before going back to Kinanya and Eve really now, I'll just ask the last person in the queue, Kavouss, please come in.

 

Kavouss Arasteh: Yes, first of all, I am not comfortable with profit making, non-profit making, it is a dangerous criteria because it will be difficult to see topics (unintelligible) profit (making) who is not profit making, sometimes profit making is not but somewhat mentioned insurance or buying (unintelligible). So you could not make such a discrimination and we would get out of the non-(incommunicative) environment that we are talking about; either reality or slow (going) I don’t know, this is number one. Number 2, I am not totally in agreement with first come, first serve. ICANN does not have any experience (at all) but (unintelligible) we have a very bigger experience of this first come, first serve. It's (unintelligible) trading and so on and so forth. People try to have (unintelligible) of the (DMS) and so on and then try to do something outside so this is first of all not agreed. And second it's not a good thing.

 

It is better not to have any further work on the public interest, leave it as it is, as a very, very high level and not go to define that which is there's no agreed definitions. And as a recommendation, I don’t think there are (unintelligible) any of the recommendations at least I am, as a GAC member, could be converted to the GAC advisor because recommendation is recommendations and advice is different because that is a real point that I can make. Thank you.

 

Niels ten Oever: Thank you very much for that comment (unintelligible) and now I would like to invite Eve and Kinanya to respond to the comments that have been made. Eve, Kinanya, please come in.

 

Eve Salomon: Yes, thank you, thank you very much. Kinanya you might want to reply to (unintelligible) question about (unintelligible) projections.

 

Kinanya Pijl: Yes, yes, here I am. Yes, indeed with regard to the comments on community and significant objections from that specific community, there are two points with regard to that on the one hand, of course we wrote everything down that we know about the differences with regard to the conceptualization of community within the different, yes, aspects, procedures within ICANN. One thing that we noticed with regard to significant objection is that the entire responsibilities on one person to prove that you have, or one entity, this significant support of a group, you cannot objective collectively so it's all on the shoulders of this one person which is a relatively high burden.

 

And to that end, we also recommended that it might be good to look at organizations that are already by - the when for example recognized as a recognized organization in the field so that we could look at whether these organizations approve the objection from this specific party. Thank you, you want to comment?

 

Eve Salomon: I'll comment on the other ones. So Alan Greenberg's question about what we see about not having (rounds) but to have applications come in (at the end). It's certainly a possibility doing it that way. I think that those procedural challenge that ICANN will face is in order to be fair and to give everybody a chance, if there was an application (unintelligible) has very good dissemination and publication and the fact that an application has come into (unintelligible) domain names to allow anybody else who had a potential interest in that (unintelligible) to either apply themselves or (unintelligible) put together an application.

 

It would not necessarily cut down on an illustration (unintelligible). I'm just thinking (only) the best way to do that and to large - I notice there's an (interest) to apply (unintelligible) and then you'd have to be well qualified.

 

Oh I see that one - there would have to be another way that's fair and non-discriminative put in place around (unintelligible) but it's certainly a possibility to be (keeping).

 

The other point made was (unintelligible) and (unintelligible) profit and non-profit and I strongly recommend to everybody who's been making comments about that, on the chat, to put all of this into one (side) because the first priority is to go back to square one and work out what is the (attention) around (unintelligible) in the first place. What values is ICANN trying to make, what are the intentions, what are the (goals)? Because from that the definition of what (unintelligible) is, ought to be given priority. And commercial, non-commercial (unintelligible) be relevant (unintelligible) that does put the cart before the horse, goes back to (unintelligible) what (unintelligible) and then work out what the (unintelligible).

 

Our report we - shorthand, or as I said, it's a strong (unintelligible) and we can just the discussion going about profit, not for profit. And I prefer the (two sections) (unintelligible) people have said a lot of (pitfalls) and I'm not actually (unintelligible). The main point is go (without thinking).

 

Niels ten Oever: Thank you Eve and (unintelligible) for those excellent comments. I see a queue has formed. Constantinos, please come in or is that an old hand Constantinos?

 

Constantinos Roussos: That's an old hand.

 

Niels ten Oever: Okay, no worries. Then let's go over to Patrick Penninckx, Patrick, please come in.

 

Patrick Penninckx: I wanted to come back to a question which was raised by (unintelligible) with regards to the nature of this report and question whether or not what's an official (unintelligible) or the recommendation or whether that was personal opinions on the order. In order for a document to be (unintelligible) Europe official position, it would have to go through the committee of ministers but that is not the purpose of this document. The document has a purpose of going, making, sure that the decision making, which should (take days) is fair, reasonable, transparent, and proportionate.

 

And what we intend to do with the report and, that's why the Council of Europe also commissioned it, is that we want to actively promote a constructive dialogue around this and I think that's what we are already doing and this is only a start. We came up with the report just before the ICANN meeting (unintelligible) and we intend to continue the dialogue on this, this is not finished and that's also replying to his second question with regards to interpretation of this particular Webinar. I think there will be other occasions where we can continue this dialogue. And I think it's important that we get started on this.

 

They've recalled that - the human rights perspective that the Council of Europe tries to bring into the ICANN process, it's fundamental and that's also what now with the adoption of a new bylaw on human rights recognizes. It also recognizes the commitment of ICANN in this and we want to contribute to the debate of this and we'll actively do that. Thank you.

 

Niels ten Oever: Thank you very much for that Patrick. I see the last one in the queue is (Jamie Bexford), Jamie come in.

 

Jamie Baxter: Yes, thanks again Niels. I just wanted to jump in on a point that seems to have been raised around the issue of rounds. I think as we look forward we need to be very cognizant of any discrimination that that may give to communities who have enshrined in part of their process outreach to community groups to build support. So this is just a race to the finish line I think we need to be very careful about how we approach this speaking from experience with our application for (doc day), it took us several years to engage the global community to build the sort of support that we needed to move forward with the application and so if this is ultimately a first come, first serve basis and for ongoing rounds, it already puts community applicants at a disadvantage because there's time required for them to - in order for them to compile and assemble and design a model, an application that actually even makes sense for the community.

 

So I just wanted to add that quick point especially for those who are discussing this in other groups.

 

Niels ten Oever: Thank you very much Jamie and I think we've gathered a lot of ideas and a lot of food for thought during this meeting but we're also on the top of the hour and I personally always try to keep the Webinars and teleconferences up to one hour because that's when mostly the concentration of people seems to seep out but luckily we have a session of the cross-community working party on ICANN's corporate and social responsibility to respect human rights at the upcoming meeting at ICANN Copenhagen also with our remote support so it would be great if we continue discussing this issue, the report and a way forward there and then of course work on concrete ways forward within the PDP on subsequent rounds.

 

So at this point I would like to thank very much the authors of the reports, the discussants and the Council of Europe and everyone for participating and being so sharp. The recording can be found at the address that has just been shared by (unintelligible) but you can also find it at the site, ICANNhumanrights.net and then click onwards from there. Soon we'll have a new site there too and then I would like to give the famous last words to Patrick Penninckx of the Council of Europe but not before thanking ICANN staff for making this possible.

 

Patrick, please come in.

 

Patrick Penninckx: Sorry I had a few problems turning on my microphone again. No, Niels you already took the words out of my mouth. I think thanks a lot for all of the discussants for having participated in this very important initial debate for even (unintelligible) for having made this report at our request. I think all of the discussants and all people intervening have appreciated the value of what is in there reflecting the processes, reflecting the vision, reflecting the recommendations and the initial intentions that were behind the community-based genetic top-level domains.

 

I think it's incredibly important that we look at it and continue to revise those working methods in order to ensure what I said, keep the processes transparent and accessible to all of the communities that wish to apply for it. So, we're really counting on the ICANN meeting in Copenhagen to continue this debate. We will take up contact with the GAC and with other communities in order to continue this debate and we hope to invite you there to discuss that further with us. Thank you so much.

 

Niels ten Oever: Thank you all very much, enjoy your day, I'm looking forward to seeing you in Copenhagen or in the calls, the ICANN calls on related topics. Thank you all very much, bye all.

 

Man 3: Thank you.

 

((Crosstalk))

 

Man 4: And thank you Niels.

 

Niels ten Oever: My pleasure.

 

 

END