NCSG Statement Explaining Our Deferral of the Vote

[Nicolas Adam]

Thx Rafik for walking the walk!

I'd like to say that, after having read the Red Cross comment, I've much 
more sympathy for its objectives than before.

I still thinks that RC has plenty of ways to protect its names, but I 
buy the argument that, from a global public policy perspective, we 
should reserve its denominations in the DNS.

I like the fact that the comment distinguished the basis for its claim 
from trademark and that it made a thorough enough global /public /policy 
defense.

Consider the following sparse quotes from which I was careful to exclude 
any *founding* references of an inter-governmental nature :

> If one were to refer here to language of the gTLD Applicant
> Guidebook, one could say that the global public interests at stake 
> here rest primarily in a
> concern to uphold the protection of victims of war and of those caring 
> for them on the
> battlefield. Any misuse or misrepresentation of  those protected 
> designations is liable due to
> the confusion it creates within the community as well as in the mind 
> of combatants on the
> battlefield, to undermine both the protection of victims and the 
> access of the Red Cross and
> Red Crescent to situations of humanitarian crises.
>
> The above carries the following two conclusions:
>
> -- the protection awarded to the Red Cross/Red Crescent designations 
> does not result
> from any trademark registration; 

> the Red Cross/Red Crescent has a vested interest in ensuring the
> protection of the designations from all forms of misuse or 
> misrepresentation. In this regard, it
> should be recalled:
>
> -- the role and mandates of the Red Cross and Red Crescent actors were 
> defined by
> States in international treaties and under the Statutes of the 
> Movement (adopted by
> States on the occasion of the Movement’s International Conference). 
> These include a
> unique status and specific mandates to act in situations of crises, be 
> they armed   3
> conflicts and other situations of violence, natural disasters and 
> other humanitarian
> emergencies.
>
> --  the role and responsibilities devolved upon the components of the 
> Red Cross and
> Red Crescent in support of their national authorities to monitor and 
> to undertake
> appropriate démarches in the event of misuse of the emblems and their 
> names in any
> all form, including on the internet, and thus, in support of public 
> authorities. The ICRC
> enjoys in this respect a particular mandate as guardian or curator of 
> international
> humanitarian law, including international rules on the protection of 
> the emblems and
> their denominations. National Red Cross and Red Crescent Societies, 
> often with the
> support of the International Federation, enforce the protection of the 
> emblems and the
> designations.
>
> -- as for its emblems of Red Cross/ Red Crescent, its designations 
> must at all times be
> protected from misuse or misrepresentations.  These misuses bring 
> risks and
> potential damage to the perception in the community of the Red 
> Cross/Red Crescent
> and to their operations in favour of vulnerable persons and 
> communities affected by
> armed conflict, natural disasters and other humanitarian emergencies. 
> Any misuse of
> the designations at any time erodes the respect that belligerents and 
> civilians have
> for the Red Cross / Red Crescent, thus compromising its ability to 
> fulfil its
> humanitarian mission. This is in particular the case if one considers 
> that the Red
> Cross/Red Crescent’s emblems and designations are often the object of 
> misuse by
> private companies including on the internet. To refer to the wording 
> of the Applicant
> Guidebook, these are designations, which are particularly vulnerable 
> to internet fraud
> and abuse, as illustrated inter alia by the numerous instances of 
> fraudulent use
> witnessed in recent humanitarian crises, such as the earthquake in 
> Haiti or the
> tsunami and ensuing nuclear crisis which affected Japan last year. 


I am loathe to *found* the global public policy arguments on which to 
base ICANN's or GNSO's determination on inter-governmental treaties

(except, perhaps, where these are of the nature of *fundamental rights*; 
I think RFC's should be the only 'founding' we should need ― and 
remember that the US White Paper was presented as a RFC)

but if  governments, who'se /Raisons d'État/s have given us time and 
time again reasons to cast doubt on their sense of global rationality 
and selfless serving of the public Good, have determined that they were 
willing to forgo the tactics of impersonating RC/RC in their dealings 
with each other, I do not see why we could not do the same here.

I would be receptive to accepting a language that would permanently 
protect RC/RC names and some variations, in both Top level Domains and 
elsewhere, if it would make the appropriate preamble that it does not 
receive special considerations because of some inter-governmental 
treaty, or because it is a 'brand' and RC/RC thinks it is not cost 
effective to guard its interests in the proper channels, but because the 
Internet community is not less receptive than the International 
community to the common sense that dictates that people abuse of the 
RC/RC denominations, thus depriving it of some integrity capital 
necessary for it to carry its mission.

The RC/RC is, truly, an organization with a one-of-a-kind mission that 
*depends* upon reasonable people saying, prior to needing its services, 
that they will not impersonate it, and that they will let those who 
present themselves bearing its denominations go about carrying their 
missions unimpeded.

Thanks again Rafik for enabling this engagement on the merit, and 
perhaps for saving gNSO and ICANN from itself, as Milton puts it.

Submitted respectfully,

Nicolas

On 3/15/2012 1:51 PM, Dorothy K. Gordon wrote:
> I followed online and was very impressed with Mary's calm and patient approach. Congratulations!
>
> Dorothy K. Gordon
> Director-General
> Ghana-India Kofi Annan Centre of Excellence in ICT
> Mobile: 233 265005712
> Direct Line: 233 302 683579
> Website: www.aiti-kace.com.gh
>
>
> ----- Original Message -----
> From: "Milton L Mueller"<mueller at SYR.EDU>
> To: NCSG-DISCUSS at LISTSERV.SYR.EDU
> Sent: Thursday, 15 March, 2012 5:48:09 PM GMT +00:00 Casablanca / Monrovia
> Subject: Re: NCSG Statement Explaining Our Deferral of the Vote
>
> Here is my blog's account of the meeting:
> http://blog.internetgovernance.org/blog/_archives/2012/3/15/5016758.html
>
> Mary was great, btw. But I cast Rafik Dynamic as hero of the story.
>
>> -----Original Message-----
>>
>> The Council had a vigorous and long debate on the issue at our public
>> meeting yesterday. As soon as transcripts and recordings are available,
>> we'll post them as it is hard to capture the intensity of the discussion
>> via email summary. For now I thought it might be helpful to add a few
>> comments to the ongoing discussion on this list:
>>
>> - the NCSG Policy Committee works on a consensus basis, and is comprised
>> of the Councilors, SG chair and official representatives from each
>> Constituency, including candidate constituencies. The decision to
>> request a deferral was not unanimous, but was arrived at after long
>> discussion (into Tuesday night and Wednesday, up to almost the time for
>> the Council meeting!) and consideration of the views of members, as
>> expressed on this list and the public comments submitted so far.
>>
>> - in addition to the formal NCSG statement that was read out at the
>> Council meeting, several Councilors and members who were present
>> emphasized that the deferral request was not a delay tactic (as other SG
>> reps alleged) but a genuine attempt to defend due process as well as
>> highlight new developments that might justify further discussions and
>> possible amendments for the final vote - including at least part of the
>> new NPOC proposal (submitted to the Drafting team over the weekend),
>> recent comments this week by a few GAC members (including Portugal's),
>> and changes to the draft motion occasioned at least in part by updates
>> from the Red Cross and IOC reps at this meeting.
>>
>> - the NCSG PC and EC reps present at the council meeting agreed, upon
>> request by other community members and Councilors, that it would be open
>> to calling a special Council meeting upon closure of the initial public
>> comment period (23 March) without waiting for the reply period to end
>> (14 April), as that would allow for sufficient public comment while
>> still ensuring that the Council would not be asked ultimately to vote on
>> a moot point (as 14 April would be 2 days after applications close for
>> new gTLDs). However, we requested that the special Council meeting take
>> place only if and after the Drafting Team has time to consider all the
>> public comments submitted and possible revision of the motion as a
>> result.
>>
>> - the DT will recommence discussions next week and start reviewing
>> public comments submitted by then. Thank you to the members who have
>> written in so far; if you have not but have views on the issue, please
>> do so at http://www.icann.org/en/news/public-comment/ioc-rcrc-proposal-
>> 02mar12-en.htm
>>
>> - finally, a reminder that this issue and the motion before the Council
>> is only in respect of the top level for this first round. More work will
>> then commence on second level protectikns for this and all future
>> rounds, as well as issues concerning top level protection for the second
>> and future rounds. This last may include consideration of the formal
>> request the ICANN Board made a few days ago, to both the GNSO and the
>> GAC, for policy advice regarding the recent request by intergovernmental
>> organizations for additional top and second level protections for their
>> names as well.
>>
>> I hope this helps!
>> Mary
>>
>> Sent from a mobile device; please excuse brevity and any grammatical or
>> typographical errors.
>>
>> "Alain Berranger<alain.berranger at GMAIL.COM>"
>> <alain.berranger at GMAIL.COM>  wrote:
>>
>>
>> The inclusion of a reference to the NPOC proposal cannot be
>> interpretated by anyone as a reason for deferral. The statement being
>> read under NCSG is actually by NCSG-PC where only 1 NPOC member's
>> opinion does not represent an official NPOC position.
>>
>>
>>
>>
>> On Wed, Mar 14, 2012 at 5:10 PM, Robin Gross<robin at ipjustice.org>
>> wrote:
>>
>>> Deb,
>>>
>>> RedCross / IOC's request for special rights was a subject of
>>> significant discussion at Monday's NCSG Policy Committee Meeting and
>>> also at the NCSG membership meeting yesterday.  The members of the
>>> committee agreed with the deferral.  You can listen to the recordings
>>> of these meetings or read the transcripts to get a more precise
>>> understanding of the position.  Pity you did not participate in any of
>>> these discussions.  NPOC representative (acting vice-chair of NPOC)
>>> Alain Berranger confirmed in an email to the NCSG-PC some changes he
>> wanted to the NCSG stmt and they were incorporated.
>>>   See here:
>>>
>>> http://mailman.ipjustice.org/pipermail/pc-ncsg/2012-March/000172.html
>>>
>>> It is worth noting, however, that positions by the NCSG are not taken
>>> by the constituencies, but by the individual members on the PC, which
>>> includes
>>> 2 NPOC representatives.
>>>
>>> Thanks,
>>> Robin
>>>
>>>
>>> On Mar 14, 2012, at 1:53 PM, Hughes, Debra Y. wrote:
>>>
>>> Robin,****
>>> ** **
>>> Robin,****
>>> ** **
>>> Can you please clarify the precise results of the vote by NCSG on this
>>> decision for deferral, including whether there was any opposition to
>> this
>>> decision by any NCSG constituency?    ****
>>> ** **
>>> Thanks,****
>>> Debbie****
>>>     ****
>>> ** **
>>> *Debra Y. Hughes *
>>> *Senior Counsel *
>>> ** **
>>> *American Red Cross*
>>> 2025 E Street, NW****
>>> Washington, D.C. 20006****
>>> 202.303.5356 (p)****
>>> 202.303.0143 (f)****
>>> *Debra.Hughes at redcross.org*
>>> ** **
>>> *From:* NCSG-Discuss [mailto:NCSG-DISCUSS at LISTSERV.SYR.EDU] *On Behalf
>>> Of *Robin Gross
>>> *Sent:* Wednesday, March 14, 2012 3:51 PM
>>> *To:* NCSG-DISCUSS at LISTSERV.SYR.EDU
>>> *Subject:* [NCSG-Discuss] NCSG Statement Explaining Our Deferral of
>>> the
>>> Vote****
>>> ** **
>>> NCSG finds it impossible to bypass ICANN's bottom-up policy
>>> development process in this way.  At a time when multi-stakeholder
>>> processes on the Internet are being challenged, this proposal is both
>>> questionable on the merits, and contrary to ICANN's processes.
>>> Therefore, the NCSG has no option at this stage but to defer the vote
>>> at least until the public comment period is closed.**** Here are the
>>> reasons for our deferral.**** One of the most important parts of the
>>> ICANN process is the public comment period, which allows public
>>> engagement and permits those affected by policies to express their
>>> views. Public comments constitute a quintessential part of iCANN's
>>> ecosystem.  How can ICANN depend on public comments when it makes a
>>> decision before they have all been received? The council should not
>>> hold a vote on something as important as the implicit creation of a
>>> new form of reserved names, especially one that singles out some
>>> international organisations for special consideration while ignoring
>>> others without full comment. The critical importance of public
>>> comments was recognized by our colleague Mr. Steve Metalitz, chair of
>>> the IPC in a recent comment. Mr Metalitz said:**** "In trying to make
>>> the decision before the public comment period has closed, ICANN has
>>> failed to fulfill its pledge, in the Affirmation of Commitments, to
>>> employ "responsive consultation procedures that provide detailed
>>> explanations of the basis for decisions, including how comments have
>>> influenced the development of policy consideration," and to
>>> "continually assess[] and improv[e] the processes by which ICANN
>>> receives public input (including adequate explanation of decisions
>>> taken and the rationale thereof)." [1]**** We could not agree more
>>> with this statement by our fellow stakeholder group - the IPC.**** The
>>> community should take the necessary time to hear all the views on this
>>> issue and examine other proposals, such as those from Portugal earlier
>>> this week as well as the proposal from the Not-for-profit Operations
>>> Constituency that are intended to create a more fair and less
>>> arbitrary standard for reserved names.**** The NCSG-Policy Committee
>>> believes that this is a critical policy issue and needs the full
>>> guidance of the public comments before it can properly decide how to
>>> vote, and thus requests a deferral of this vote.****
>>> ------------------------------
>>> [1]
>>> http://www.icann.org/en/documents/affirmation-of-commitments-30sep09-e
>>> n.htm,
>>> paragraphs 7 and 9.1.c.****
>>>
>>>
>>>
>>
>> --
>> Alain Berranger, B.Eng, MBA
>> Member, Board of Directors, CECI,
>> http://www.ceci.ca<http://www.ceci.ca/en/about-ceci/team/board-of-
>> directors/>
>> Executive-in-residence, Schulich School of Business,
>> www.schulich.yorku.ca Trustee, Global Knowledge Partnership Foundation,
>> www.gkpfoundation.org NA representative, Chasquinet Foundation,
>> www.chasquinet.org interim Membership Committee Chair, NPOC, NCSG,
>> ICANN, http://npoc.org/
>> O:+1 514 484 7824; M:+1 514 704 7824
>> Skype: alain.berranger
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