[ncdnhc-discuss] ORG policy - discussion with Touton

[Milton Mueller]

Councillors:

I just had a long conversation with Louis Touton. I think 
he now understands the rationale behind the Task Force 
proposal better, and I understand the substance of his 
objections better. The main difference is that the TF 
viewed "sponsorship" as a continuum whereas Touton 
viewed it more as an either-or. It seems clear to me (but 
of course I cannot speak for Touton) that the sponsored, 
unrestricted concept is legally and practically viable if we 
make a few modifications. It is also possible that similar 
policy objectives could be achieved via an unsponsored, 
unrestricted model. My preference is still for the "sponsored, unrestricted" framework, but the important thing is the policy 
objectives and not the label. Which way forward we take 
depends on discussions within the Names Council.

The issues that need to be addressed are:
a) Do commercial registrants have the same rights within 
the sponsoring organization's governance structure as 
noncommercial registrants?
b) Should newORG be given the authority to develop a 
differentiated WHOIS policy? 
c) What specific authority over registrar qualification 
and/or practices are we giving newORG?
d) Should we try to achieve the same policy objectives 
via an unsponsored, unrestricted domain?

If the first three of these questions are resolved in 
certain ways, all doubts about the "sponsored" status of 
newORG should be resolved. 

The ORG TF is clearly the place to answer these questions, 
but I strongly recommend that it be required to address 
only the specific issues laid out above, and that it be required 
to do so on a fixed (and very short) timeline.

What follows is a more detailed analysis of the issues still 
facing us. I hope you all have time to read it(!) 

a)	Scope of representation.
A sponsored TLD serves a defined community. Touton's opinion 
charges that the "affected community" proposed by the ORG 
Task Force "is unbounded." This is not correct. The policy calls 
for the Sponsoring Organizations (SOs) to define the noncommercial
registrants community to be served by the .org TLD. It provides 
specific guidelines regarding how that community is to be defined. 
It requires the SO to develop marketing and promotion policies suited 
to that bounded community. It requires the SO to be representative 
of that community in its governance structures, and to provide 
financial and other forms of support to help that community 
participate in ICANN processes. 

Louis' objection arises because the policy recommends that the 
SO regulate entry into the domain indirectly, via marketing and 
promotion policies and the relationship with registrars, instead of 
directly. In his opinion, a refusal to enforce eligibility restrictions 
means that the eligible community is unbounded. I still believe 
that this is simply too rigid a view. There are ways to define a 
bounded community other than erecting barbed-wire fences and 
engaging in systematic "domain ethnic cleansing." The TF 
chose an incentive-oriented approach that tries to make .org 
attractive to the appropriate community and discourages 
marketing practices that attract inappropriate registrations. 
This was a practical trade-off that we found justified by the 
peculiar situation of .org, which has so many legacy 
registrations and the amorphousness of "noncommercial" 
as a descriptor.

There is clearly no practical problem with that approach - 
indeed, the alternative (actively policing eligibility) is far 
more difficult to define and implement. 

I think I got Louis to agree that actively restricting eligibility 
to register is only one of many possible delegations of authority 
to a sponsor, and that it need not be present for a domain 
to qualify as "sponsored" as long as there are other significant
delegations.

Which leads to:

b)	Scope of delegation
A sponsored TLD is delegated more authority over policy for 
the domain than an unsponsored TLD. Louis lists 6 broad 
categories of delegated authority. Of those, two (A and E) 
apply only to new TLDs and thus are inapplicable to this case. 
(There is no startup problem and no possibility of imposing 
naming conventions on an existing, highly populated space.) 
Of the remaining four, the proposed .ORG policy takes specific 
positions in two areas (selection and supervision of the registry 
operator, and practices of registrars and terms of dealing). 

The TF also discussed doing something different from the 
norm on WHOIS policies (item F), but certain constituencies 
preferred that we not do so. I personally, and most members 
of my constituency, would like to see newORG have the 
authority to create its own WHOIS policy. If the Task Force is 
willing to reopen this issue I would be amenable. 

I agree with Louis, however, that there is ambiguity in the 
report regarding how registrars are treated. We proposed 
that prospective sponsoring organizations be open to all ICANN 
accredited registrars, and that the Sponsor be concerned only 
with the way .org is marketed by them. The Task Force 
deliberately chose to leave it open to applicants to propose 
methods to enforce the appropriate marketing policies, 
articulating only a general admonition that the proposed methods
"promote and enhance differentiation while minimizing 
bureaucracy, enforcement costs, and restrictions on registrars."

Louis argues convincingly that to qualify as a sponsored 
domain, the Task Force must recommend stronger policies 
regarding registrar qualification. E.g., the new ORG must 
be able to "qualify" registrars and or specify certain 
practices they must conform to to be eligible to register 
names. 

Section III
In this section, Louis argues that everything we are trying 
to achieve via sponsorship could be achieved more easily 
by making ORG an unsponsored domain and imposing policy 
guidelines on to whom it is delegated. For example, policy 
can specify that the registry operator be non-profit rather 
than for-profit, that it be delegated to an organization with 
an acceptable marketing plan focused on the appropriate 
community.

The idea of making org an unsponsored domain makes 
most noncommercial constituency members uncomfortable. 
Calling it a sponsored domain sends a strong signal to the 
applicant pool that a successful applicant must have a clear 
definition of the relevant community it will focus on, a 
community of which it will be representative and to which it 
will be accountable. While we could write policies that apply 
these criteria to an "unsponsored" registry operator, the 
intent seems more aligned with the sponsored model. I believe 
that the emphasis on sponsorship gives the Board clearer 
guidelines in selecting applicants. Also, an unsponsored domain 
would have a weaker ability, and possibly no ability, to 
influence the marketing policies of registrars.