Draft Statement of NCUC on the Draft Applicant Guidebook

[Mary Wong]

In principle and substance, yes - but I would feel more comfortable, and
believe it would be more effective, if the references to ICANN staff
(e.g. "as claimed by staff") were removed or at least reduced.
Similarly, I would suggest rewording the point about the "company who
provides the expert advice is also hired by ICANN" to something along
the lines of "the third party contracted to select the experts who will
determine the objection".
 
Cheers
Mary

 
Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH
03301USAEmail: mary.wong at law.unh.eduPhone: 1-603-513-5143Webpage:
http://www.law.unh.edu/marywong/index.phpSelected writings available on
the Social Science Research Network (SSRN) at:
http://ssrn.com/author=437584>>> 


From: Drake William <william.drake at GRADUATEINSTITUTE.CH>
To:<NCSG-NCUC-DISCUSS at listserv.syr.edu>
Date: 12/10/2010 11:50 AM
Subject: Re: Draft Statement of NCUC on the Draft Applicant Guidebook
Sure

Bill

On Dec 10, 2010, at 11:32 AM, Robin Gross wrote:



Here's the draft NCUC statement on the DAG and new gtlds.  Please let
me know if you support it's submission.

Thanks! 

Robin


Draft Statement of NCUC on the Draft Applicant Guidebook

NCUC supports the prompt introduction of new gTLDs, yet we are deeply
concerned about a number of implementation proposals in the latest Draft
Applicant Guidebook, however believe they can be fixed and the new TLD
process can move forward.

In particular, we are concerned that the Independent Objector (IO)
process is ripe for abuse and harmful to the public interest. The IO was
a staff created policy that was never discussed let alone approved by
the GNSO.  We believe that it is entirely illogical that there can be a
TLD that no community, religion, government, company, trademark holder,
or individual in the world actually objects to – yet is “something we
all agree is objectionable” as claimed by staff.

Important safeguards to prevent abuse and “gaming” are lacking from the
IO, as envisioned by staff.  For example, there is no requirement that
an objection brought by the IO be tied to at least one specific party
who claims it will be harmed if the TLD goes forward.  Such a
requirement is necessary to achieve accountability in the new TLD
process.  

Another feature missing from staff’s version of an IO is transparency. 
ICANN staff has stated a number of times that the IO is intended to
provide a secret means for governments to object to a TLD string without
having to do so publicly.  For a public governance organization with
transparency requirements, such a proposal for secret objections cannot
stand.  If there must be an IO, actual objectors must come forward and
be transparent about their role to prevent the new TLD. 

According the staff memo on so-called Morality and Public Order
objections, one of the purposes of the IO is “risk mitigation” to ICANN
(i.e. a forum to quietly kill controversial TLDs to ward-off ICANN’s
ability to be sued in courts of law).  We do not support staff’s
introduction of “risk mitigation strategy” as ICANN’s primary policy
objective.  As always, the global public interest with respect to the
DNS is ICANN’s primary obligation, not ICANN’s own corporate interest.

As designed by staff, the IO lacks true independence.  The IO is
employed by ICANN; likewise the company who provides the expert advice
is also hired by ICANN, so there is a lack of neutrality on the part of
the expert panel since they have an incentive to agree with the IO
(ICANN) who hired it when they handle matters brought by the IO. 

On the issue of trademarks in the latest DAG, we are troubled by the
elimination of sufficient time in which to respond to URS complaints in
the latest DAG.  Re-working the negotiated community consensus from 21
to 14 days as a timeframe in which to respond is concerning as it
provides inadequate protection to registrants, who may be on holidays
and unable to find an attorney and respond in a reasonable period of
time.

We share the concerns expressed in the At-Large Statement on Draft
Applicant Guidebook.  However, we believe the best course of action is
to make the appropriate fixes to the policy to protect the global public
interest and go forward with new TLDs in an expeditious manner.



<NCSG stmt on rec6>


IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org








IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org





***********************************************************
William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
 Development Studies
Geneva, Switzerland
william.drake at graduateinstitute.ch
www.williamdrake.org
***********************************************************




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