[ncdnhc-discuss] [Fwd: [council] Comments of Report of .org Task Force]

[Nilda Vany Martinez Grajales]

Hi to all:

FYI.

Best Regards
Vany

-------- Original Message --------
Subject: [council] Comments of Report of .org Task Force
Date: Sun, 09 Dec 2001 13:24:12 -0800
From: Louis Touton <touton at icann.org>
Reply-To: touton at icann.org
Organization: ICANN
To: council at dnso.org

To the Names Council:

On 1 December, the .org Names Council Task Force submitted its report 
for consideration by the Names Council at its 13 December meeting. 
Although the report clearly represents hard work of bringing together 
apparently diverse viewpoints, the resulting proposals include some 
features that raise significant concerns.  The attached Adobe Acrobat 
(.pdf) file discusses those concerns.  For those unable to read Acrobat 
files, the text is copied (in somewhat harder-to-read format) at the 
bottom of this message.

Best regards,

Louis Touton

==================================================================

To the Names Council:

On 1 December 2001, a "Final Report of the ORG Divestiture Task Force" 
was submitted for consideration at the 13 December 2001 Names Council 
teleconference.  The report raises significant practical and legal 
concerns regarding (a) what policy recommendations are intended by the 
report and (b) whether the policy recommendations could be implemented 
in a manner that is practical and fulfills fundamental aspects of 
ICANN's mission.

As submitted, the report proposes a wholly new kind of TLD:  a sponsored 
yet unrestricted TLD.  This aspect of the report leads to a series of 
inconsistencies that in turn lead to ambiguities and irreconcilable 
conflicts in the policies being recommended.  There are inherent 
conflicts between the notions of sponsored and unrestricted that make it 
extraordinarily cumbersome - if not impossible - for both concepts to 
apply to the same situation. Attempting coexistence would present 
significant problems that I believe will require complicated (and 
possibly unworkable) elaborations, augmentations, and revisions.  If 
corrective measures are not taken at the DNSO level now, there is a 
significant danger that either (a) corrections will be required through 
policy revisions at the Board level or in the implementation process or 
(b) the .org transition from VeriSign will be delayed as clarifying and 
additional policy recommendations are sought from the Names Council.

In this document, I will attempt to provide you with the background as 
to why the concepts of sponsorship and unrestricted do not work
together.

I.  Nature of and Justification for the Sponsored TLD Concept.  First it 
is helpful to understand the details of the "sponsorship" idea that has 
developed over the past two years.  The fundamental characteristic of a 
"sponsored" TLD is that it has a Sponsor to which ICANN delegates a 
portion - but not all - of ICANN's policy-formulation responsibility. 
This delegation is made on the premise that ICANN's mission of 
developing DNS policies through consensus-based processes involving all 
affected parties can best be done, in the case of TLDs with registration 
policies limited to a well-defined community, by a community-based 
organization that represents the spectrum of interests of the 
registrants and others in the community who may be affected.  The 
delegation is not simply a matter of granting the customary discretion 
to the registry operator regarding how to run its business; it is a 
delegation of ICANN's responsibilty to act in a way that represents all 
the affected registrants.

As recently noted in my analysis of objections to the .aero agreement 
<http://www.icann.org/tlds/agreements/aero/report-aero-tld-24nov01.htm>, 
this has been accomplished in the present sTLD agreements by stating a 
"charter" defining the purposes for which the TLD may be used and then 
expressly defining a "Sponsored TLD Community", which in general terms 
is "either commensurate in scope with or broader than the registrants 
within the scope of the charter."  To ensure that requirements that 
policies made under ICANN's policy ambit are developed in a manner that 
involves all affected, whether directly by ICANN or through delegation 
to a Sponsor, subsection 4.2 of the sTLD agreement sets forth a series 
of requirements on how the Sponsor may exercise delegated authority:

"4.2. General Obligations of Sponsor. During the Term of this Agreement, 
Sponsor shall, in developing or enforcing standards, policies, 
procedures, or practices within the scope of its delegated authority 
with respect to the Sponsored TLD:

"4.2.1. publish such standards, policies, procedures, and practices so 
they are available to members of the Sponsored TLD Community;

"4.2.2. conduct its policy-development activities in manner that 
reasonably provides opportunities for members of the Sponsored TLD 
Community to discuss and participate in the development of such 
standards, policies, procedures, or practices;

"4.2.3. maintain the representativeness of its policy-development and 
implementation process by establishing procedures that facilitate 
participation by a broad cross-section of the Sponsored TLD Community;

"4.2.4. ensure, through published procedures, adequate opportunities for 
members of the Sponsored TLD Community to submit their views on and 
objections to the establishment or revision of standards, policies, 
procedures, and practices or the manner in which standards, policies, 
procedures, and practices are enforced;

"4.2.5. ensure that any revenues received by Sponsor or any affiliated 
entity directly or indirectly from the provision of Registry Services 
are used solely for the benefit of the Sponsored TLD Community; and

"4.2.6. ensure that any contract with a Registry Operator precludes any 
control by that Registry Operator over the policy-development process of 
the Sponsored TLD."

<http://www.icann.org/tlds/agreements/sponsored/sponsorship-agmt-29aug01.htm#4.2>

II.  Contradictions in Unrestricted, Sponsored TLDs.  In attempting to 
overlay this sponsorship concept on a wholly unrestricted TLD, the task 
force report raises many difficulties.

(a) Scope of representation.  Because the TLD is proposed to be 
unrestricted (both as to existing registrations and future 
registrations), the affected community is unbounded.  The justification 
of delegating ICANN's responsibility to an organization that can 
represent a narrower community in a more focused way (than ICANN) is 
simply absent.  Correspondingly, the Sponsor of a wholly unrestricted 
TLD carries the full weight of representing the entire Internet 
community.  Since it carries ICANN's full representational 
responsibility, the sponsor in essence becomes a second ICANN, which 
should be subject to all the procedures ICANN must follow, including 
taking into account all the views of all segments of the Internet
community.

(b)  Scope of delegation.  The difficulties of the attempt to combine 
sponsorship and a prohibition of restrictions is also apparent from the 
limits the task force report proposes on the Sponsor's authority.  The 
recently completed sTLD agreements set forth seventeen items as to which 
policy-development responsibility is delegated to the Sponsors in 
attachment 2 to the agreements:

.aero:
<http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att2-20nov01.htm>

.coop:
http://www.icann.org/tlds/agreements/coop/sponsorship-agmt-att2-06nov01.htm>

.museum:
<http://www.icann.org/tlds/agreements/museum/sponsorship-agmt-att2-20aug01.htm>

These delegated items fall into six broad categories:

A.  naming conventions within the TLD, restrictions, and name-selection 
principles (items 1-5 and 14);

B.  additional dispute-resolution mechanisms (item 6);

C.  selection and supervision of the registry operator (items 7-9);

D.  selection of qualified registrars, practices of registrars, and 
terms of dealing of registrars with registrants and the registry 
operator (items 10-13);

E.  start-up of the TLD (item 15); and

F.  Whois policies (item 16).

(Item 17 generally supports implementation of the prior 16 items.)

Comparing this list of delegated items with the task force report makes 
clear that the task force report envisions that only a small slice of 
this authority will be delegated.  Instead of proposing to find an 
organization representative of a distinct sub-community and thereby 
allowing that community to formulate basic policy, the task force report 
at one point  appears to give no delegation of authority at all.  As 
point 6 of the task force report says:  "TLD administration must adhere 
to policies defined through ICANN processes, such as policies regarding 
registrar accreditation, shared registry access, dispute resolution, and 
access to registration contact data."  If this provision means what it 
literally says, the TLD simply would not be sponsored at all.

At other points in the report, however, it appears to propose to give 
the Sponsor broader policy authority.  Point 2b, for example, indicates 
that the Sponsor might be responsible for "accreditation of registrars"; 
this seems at odds with the language of point 6 quoted immediately 
above.  This leaves unclear what the role of the Sponsor is--can it 
dictate who can be and who cannot be a registrar?  This is only one of 
several ambiguities in the report's proposed role of the .org sponsor 
and for ICANN.

III.  Sponsored Status Is Unnecessary in an Unrestricted TLD.  The 
confusing character of the report's proposal of an unrestricted, 
sponsored TLD is unnecessary.  Operators of unsponsored TLDs (VeriSign, 
NeuLevel, Afilias, and Global Name Registry) are responsible for 
operating their businesses within well-defined, but expansive, bounds 
set forth in their registry agreements.  This business discretion would 
appear to allow the flexibility that the task force sought to "promote 
and attract" registrations from the community of non-commercial (broadly 
defined, including cultural, expressive, etc.) organizations.

It should be emphasized that there is no reason that a uTLD operator 
must be commercial.  A non-profit entity could readily be selected as 
the registry operator and then outsource the back-end to a commercial 
entity (similar to Afilias's outsourcing to Liberty).

As noted in the 15 August 2000 "Criteria for Assessing TLD Proposals" 
document, some degree of policy-formulation responsibility is devolved 
in both uTLDs and sTLDs:

"In the context of unsponsored TLDs, this can appropriately be 
accomplished for many operational matters by giving the registry 
operator flexibility in the registry contract. For restricted TLDs, some 
have suggested a "sponsorship" model, in which policy-formulation 
responsibility for the TLD would be delegated to a sponsoring 
organization that allows participation of the affected segments of the 
relevant communities."

<http://www.icann.org/tlds/tld-criteria-15aug00.htm#7>

The task force report states that sponsorship is beneficial because it 
can give the non-commercial community greater influence over (a) the 
image of .org presented to the public; (b) distribution of surplus 
revenues; and (c) selection of management personnel.  All these things, 
however, could readily be handled in the unsponsored TLD context. 
Operators of uTLDs routinely engage in marketing and select their 
management personnel.  They also choose what to do with any surplus 
revenues.

As well-stated by Bret Fausett in his 1 December 2001 icann.Blog article 
entitled "Sponsored, Unrestricted .Org":

"So it's not entirely clear what a sponsoring entity would do when 
overseeing an unrestricted TLD. Each of the possible benefits listed in 
the report ("Sponsorship is beneficial because...") also would be 
realized simply with a new registry operator and some guidelines for 
operation built into a new .org registry accreditation contract. To my 
way of thinking, all the Task Force's proposed change would do is create 
a new level of bureaucracy for .org domain name registrants and
registrars."

That view counsels strongly in favor of reforming the task force's 
recommendations to call for an organizational structure that is either 
(a) sponsored and restricted (like .museum), (b) unsponsored and 
restricted (like .name or .biz), or (c) unsponsored and unrestricted 
(like .com or .info) - but not sponsored and unrestricted.

Please let me know if I can provide further information on these points.

Best regards,

Louis Touton