Draft public comments on DAGv4 (background checks, MAPO, Independent Objector)

[Mary Wong]

Apologies for the last minute circulation of this rather brief draft comment - I've not been able to pull together anything better, unfortunately :( Since the comment period for DAGv4 closes today, however, I thought I should send what little I've got to the list for comments/feedback.
 
I've drafted it as a submission from NCSG, but if there are objections or concerns from anyone, I'm happy to file it as a personal comment. It can also be combined with what Wendy and others have worked on, w.r.t. other aspects of DAGv4.
 
Here goes -
 
"The NCSG wishes to comment on several specific aspects of version 4 of the draft Applicant Guidebook; viz., Module 2 (Evaluation Procedures) regarding Background Checks, and Module 3 (Dispute Resolution) regarding Morality & Public Order objections and the role of the Independent Objector. All page and section references are to the redlined version of the draft Applicant Guidebook.
 
(1) Background Checks (Module 2)
 
While it is understandable that a certain level of background check on an applicant may be desirable, the current suggestions go beyond what would seem to be reasonable and necessary. 
 
First, the least intrusive check that can be done should be that on the applicant itself (i.e. the entity applying for the potential new gTLD), in relation to its financial, technical and operational capabilities (in keeping with the other requirements of the Guidebook). To the extent that this makes it necessary to also conduct a check on the applicant's management, this should be limited to officers, directors and majority shareholders of the applicant. It is unclear what the word "partners" (pg 2-1, Section 2.1) means in this context, as the legal meaning of the word is different from the broader, more general meaning in ordinary use.
 
Secondly, some of the grounds upon which a background check are to be based appear overly vague and/or disproportionate to the objectives of this type of background check. For instance, would a check on whether an entity or one of its directors engaged in "terrorism" come back positive because that entity or person has been charged in one national court with abetment of a terrorist act according to just that one country's definition of terrorism? Does ICANN limit terrorism to mean constituting a security threat to critical Internet infrastructure, and according to whom?
 
While the scale of serious matters such as terrorism (however defined) and war crimes (another highly-charged phrase) cannot be denied, how would those issues affect the deployment of new gTLDs and the operation of the DNS, such that it is appropriate for ICANN to deny an application on those grounds? One can perhaps agree that a company that has been found to have engaged in "corporate fraud and financial regulatory breaches" may not be an appropriate new gTLD registry operator, but these are purely financial and operational issues that are directly linked to the capacity of a potential new gTLD registry operator.
 
Thirdly, the question of whether an applicant (or its officers, directors, shareholders and partners) engaged in "intellectual property violations" (pg 2-2) does not seem to belong in the same category of serious concerns as the other grounds listed as subjects of background checks. If ICANN wishes to ensure that serial cybersquatters and other, proven cases of abusive trademark users will not be allowed to operate a new gTLD, then this category ought specifically to be limited to just these particular cases (and not, for instance, extended to someone who unknowingly infringed a copyright at some point in his life).
 
Fourthly, even though the decision whether or not an applicant has passed a background check is made on a "case by case basis" (pg 2-2), the draft as it stands gives ICANN (and, for that matter, the entity conducting the background check) broad discretion to consider many more factors than those listed and to make a decision. 
 
There is also no provision for informing the applicant either that it (or one of its officers, directors etc.) has triggered any alarm bells in the course of the background check, or even that it has failed because of a negative background check. Further, there is no provision for any appeal or review of a decision to disallow the application to go further because of a failed background check.
 
The NCSG recommends that ICANN review the background check provisions. To the extent that community feedback indicates that a background check of any kind is desirable, we recommend that these be strictly limited to, at most, cases of proven financial irregularity or fraud, and possibly clear-cut, proven cases of cyber-squatting.
 
(2) Morality & Public Order Objections (Module 3)
 
Many members of the NCSG continue to oppose the inclusion of a Morality and Public Order ("MAPO") objection in the new gTLD process. This objection is based on the belief that (a) there are no truly global standards for MAPO; (b) the laws, customs and norms of public international law are inappropriate and do not fit into a private party transaction (as ICANN's dealings with new gTLD registries would be); (c) the existing public international law mechanisms for dealing with alleged infractions of international treaties that touch on MAPO issues are entirely different in objective, operation and effect from the dispute resolution panels contemplated by ICANN; and (d) MAPO issues likely fall outside of ICANN's mandate.
 
NCSG reiterates its call for ICANN to publicly release the research it commissioned from the various jurists and international law experts (such as were referenced in ICANN's earlier Explanatory Memorandum on MAPO), so that the community can openly evaluate the need for a MAPO objection process at all as well as the grounds upon which ICANN is currently recommending that such a process be based.
 
NCSG also calls ICANN's attention to the recent formation of a joint ACSO group tasked with discussing the MAPO issues, and recommends that any further action on MAPO be taken only with reference to the work to be done by that group.
 
In the absence of any further information forthcoming regarding ICANN's reasons for including the current grounds for MAPO objections and consultation with the joint ACSO group, most NCSG members remain opposed to the inclusion of any process relating to MAPO objections at all.
 
(3) Independent Objector (Module 3)
 
NCSG is concerned at the lack of specificity in both versions 3 & 4 of the Guidebook concerning the accountability of the Independent Objector ("IO"). While we favor the concept of such an office, we note that the very freedom currently recommended for the IO also means that he/she does not have to act in consultation with any community, nor is he/she obliged to receive public comments (pg 3-6). 
 
Further, while the IO is supposed to be an independent contractor to (and not a full-time employee of) ICANN, his/her budget will necessarily emanate from ICANN. The recommendation that the IO has potentially limitless renewable terms (pg 3-6) is therefore a matter of concern.
 
In addition, there is no process for any person or community who are aggrieved or harmed by the IO's decisions and actions (or inactions, as the case may be) to object or appeal. While it is reasonable to believe that a responsible IO will not file a trivial or illegitimate complaint, there is currently no redress for anyone or any group who believe themselves prejudiced by a decision of an IO not to act, especially in cases where a particular person or community may, for reasons such as political suppression or financing, be unable to raise objections on their own.
 
NCSG's concerns about the IO are particularly magnified given the IO's mandate to file MAPO objections. 
 
NCSG recommends that, at the very least, specific provisions relating to an appeal and review process for the IO and his/her conduct, as well as either non-renewable tenure or a maximum number of terms, be included in the final Guidebook.
 
Thank you for the opportunity to comment on the latest version of the draft Applicant Guidebook. We look forward to an accurate and timely summary and analysis of all comments received in this round, and to speedy resolution of the issues highlighted through this comment process and period."
 
 
 
Mary W S Wong
Professor of Law & Chair, Graduate IP Programs
Franklin Pierce Law Center
Two White Street
Concord, NH 03301
USA
Email: mwong at piercelaw.edu
Phone: 1-603-513-5143
Webpage: http://www.piercelaw.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584


Pierce Law | University of New Hampshire - An Innovative Partnership
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