Statement on IFRC and IOC - Protection

[Avri Doria]

Re: http://www.icann.org/en/news/public-comment/ioc-rcrc-proposal-02mar12-en.htm

In this statement I want to address the purpose of the ICANN Board's actions, and the derivative purpose of the drafting team's work: protection of the International Federation of the Red Cross (IFRC) and of the International Olympic Committee (IOC). Since the rules apply to both, and since the GNSO seems to have decided that the motion cannot be split between the two organizations, I will not differentiate between the two organizations in my comments.  In any case such discrimination would require further analysis on the basis for the merits of the special treatment.

- I will avoid, in this note at least, the question of whether the IFRC/IOC deserve such protection.

- I will avoid, in this note at least, the question of whether the IFRC/IOC are the only organizations that deserve this protection.

- I will avoid, in this note at least, the question of whether the IFRC/IOC as a class of organization are unique regarding reasons for such protection.

- I will avoid, in this note at least, the question of whether the ICANN Board did the right thing in creating, without a GNSO PDP, a new class of modified reserved names.

- I will avoid, in this note at least, the question of whether, changing the Application Guidebook (AGB) after the start of the application period is an appropriate action for ICANN to take.

- I will avoid, in this note at least, the question of whether it is appropriate for the GNSO council  to vote on a recommendation of a Drafting Team without a complete AOC/ATRT/Board determined comment period and without a call to the constituencies for comments.  I.e. the appropriateness of the GNSO council circumventing the PDP and the precedence this might set for future emergency policy issues.

- I will avoid, in this note, the analysis necessary to differentiate between a policy issue and a 'mere' implementation issue.

In this note I will focus on the issue of protection of the IFRC/IOC in the current round.  Stipulating in this comment that the IFRC/IOC deserve such special protection, the question becomes what should be done by the GNSO Council at this point to protect them and which aspects of the motion before the GNSO council achieve this goal. 

It is clear that the Board already gave the IFRC/IOC extraordinary protection.  At the request of the IFRC/IOC and the Advice of the GAC, they created a new class of modified reserved name that could not be delegated and produced a list of words that could not be applied for. The question facing the GNSO Draft Team is whether it is necessary to augment this protection and if so how it should be done.

The motion before the GNSO contains several elements.  It is worth looking at whether these elements contribute to the protection of the IFRC/IOC and if they do, whether they do so in a reasonable and scalable manner.

1. (Recommendation 1a) That IFRC/IOC should be given an exemption to the rule prohibiting the delegation of these names.  While on the face of it, this seems ok to many people, it certainly has nothing to do with protection.  If the purpose of this motion is to protect the IFRC/IOC, then this Recommendation should be out of scope and should be stricken from the motion.  It should also be noted, that for no other reserved name is this privilege extended - for all other reserved names there is no special exemption for the organization to which the name refers, e.g. the IETF cannot apply for .ietf.

It is also difficulty to know how this special exception would be handled by ICANN.  There are thousands of IFRC/IOC participating organizations, as well as language and script variations.  Does this special exemption to the special modified reserved name policy apply to all of them?  If so will this be handled with a 'white list' of those allowed to apply?  Will a letter be submitted by designated officials in the IFRC/IOC?  It seems to me that a detailed set of implementation guidelines for how this special exemption from the special modified reserved names list would need to be developed before such a change could be made to the AGB.  It also seems like this would be a difficult thing for the staff to do without sequence of draft proposals and comment periods.

Given the difficulty in implementing such a special exemption to the special modified reserved name policy, I beleive that it is reasonable to ask the IFRC/IOC to wait until the next round to make their applications.  They asked for protection and got protection.  To service this further request at a date after the application period has already started is not reasonable and should be rejected.

Recommendation: Delete Recommendation 1a

2.  (Recommendation 1b) That strings similar to the special modified reserved names should fail string similarity review.  This seems to contribute to the protection of  the IFRC/IOC and thus seems appropriate given the stipulations of this action.

Recommendation: Retain Recommendation 1b

3. (Recommendation 1c)  This introduces several mechanisms by which an applicant that fails string similarity could appeal the failure. This does not seem to play any role in protecting the IFRC/IOC and has several unfortunate aspects.

In the first place, it allows for a form of gaming.  Whether by direct payment or indirect contribution, it creates an opportunity for the IFRC/IOC to license some names while rejecting others.  In a sense this elevates the IFRC/IOC to the status of governments, for the only other example in the AGB where a letter of permission is mandated for an application relates to Geographic names.  There is no currently defined circumstance where a permission letter can be obtained after the failure of an application review process. This is an aspect of special modified reserved names that would seem to require greater policy discussion before implementation.

In terms of implementation, the ICANN Board and Staff have already rejected several GNSO policy recommendations for an appeals mechanism to the Confusing Similarity test.  The reason given for this rejection of GNSO policy recommendations has been the complexity it added to the application process.  It is hard to understand how such a mechanism could be implemented specifically for the IFRC/IOC when it could not be implemented on GNSO consensus recommendation.  If such a set of appeals mechanisms are possible they should be implemented for all applicants and not just for applicants who gain License from the IFRC/IOC.  Either it is too complex to implement an appeals mechanism or it is not too complex.  And if it is possible is should be created for all as a matter of fairness, especially since such an exemption does not contribute to the protection of the IFRC/IOC.

Recommendation: Delete Recommendation 1c

4. (Recommendation 2)  That IFRC/IOC produce an exhaustive list of all applicable special modified reserved names so that these could be added to the list already contained in the AGB.  While it is true that this does contribute to the protection of the IFRC/IOC is does not seem to be possible.  As was discovered when people tried to create an exhaustive famous marks list, this sort of activity is similar to an attempt to boil the ocean.

The motion recommends that if the IFRC/IOC fail to create such a list, they can still use the objection process.  Along with many others, I have long assumed that this was the optimum method, within the policy recommendations made by the GNSO, for the protection of the IFCR/IOC, and thus see this as a very reasonable adjunct to the the special modified reserved names list created by the Board for the protection of IFRC/IOC.

One issue that has come up is that the need to pay for such objections would be prohibitive and would come at the expense of the 'good works' done by the IFRC/IOC.  As this comments stipulates to the need to protect these 'good works', a reasonable and scalable solution would be to allow the IFRC/IOC to file such objections without a fee.  The mechanism already exists for this, as the Independent Objector could be given the ability to take these IFRC/IOC objections and file them on its behalf.   If for some reason I cannot currently foresee, such a arrangement is not possible, then perhaps the IFRC/IOC could get special exemption from the objection filing fee.  In this case I recommend that the applicant target of the objection receive a similar exemption from the fee.

Recommendation: Delete the requirement for IFRC/IOC to create further lists.  Discuss adding a provision for exemption from the objection for the IFRC/IOC and those they file against.

5. (Recommendation 3) The protections of the special modified reserved names list plus other privileges requested by the IFRC/IOC should be extended to all future  new gTLD rounds.  While this does deal with protections for the IFRC/IOC, it does not deal with protection in the current round.  All of the policy + implementation work is being done in a hurry and without the benefit of proper process.  There is time before the next round, it is thus reasonable that the whole notion of modified reserved names list should be discussed further.  There are issues such as the breadth of these rules and their applications to other entities (the Portuguese and NPOC suggestions) that need full and proper discussion.  There should be a policy development process on the issue of modified reserved names before the next round, rather than the carryover of emergency implementation procedures that single out two organization from a possibly larger group of deserving institutions.

Recommendation: Replace recommendation 3, with a call for an issues report that covers the many issues involved in this topic at both the top and second levels.


To summarize, I recommend the following with regard to this motion:


- Delete Recommendation 1a
- Retain Recommendation 1b
- Delete Recommendation 1c
-  Delete the requirement for IFRC/IOC to create further lists.  Discuss adding a provision for exemption from the objection for the IFRC/IOC and those they file against.
- Replace recommendation 3, with a call for an issues report that covers the many issues involved in this topic at both the top and second levels.


Thank you

Avri Doria