[NCSG-Discuss] Fwd: [council] Advice requested by the ICANN Board / Consumer Trust

[Wendy Seltzer]

Hi Alain and all,

Dissenters often do write to the Board. The reason I wanted to do so
specifically here is because our disagreement is called out in the
report, but only in a preliminary form (an early exchange in the
drafting group, rather than later input). When I asked for an amendment
in the GNSO Council meeting to include this more developed position, the
chair suggested that we instead send it directly to the Board.  I'm just
now realizing we haven't taken any further action.

In this case, I think it's helpful to give the Board additional analysis
to inform their deliberation on the meaning of "consumer trust," because
a mistaken interpretation like that given in the largely
trademark-driven report would negatively impact the rights and interests
of individuals and non-commercial stakeholders concerned with free
expression of less popular viewpoints and innovative development.

The GNSO Council ratifies the consensus of stakeholder groups on policy
development, but it doesn't monopolize the analysis and input to
deliberative decisions.

--Wendy

On 01/15/2013 01:39 PM, Alain Berranger wrote:
> Dear NCSG Colleagues,
> 
> While Wendy's arguments about innovation are convincing to me, I feel I
> need understanding on how consensus is built and how decision-making is
> made and communicated in/by the GNSO.
> 
> From the point of view of GNSO procedures then, do we have to write to
> Board for every issue NCSG dissents? or would that be an exceptional
> situation? What is the purpose and value of the GNSO vote?  Does it mean
> that the consensus, if any, firms up at the Board level only? When NCSG
> agrees with a recommendation, do the other SGs usually write to the Board?
> For that matter, in the case of GNSO votes with dissention, does/should the
> Board not receive a summary of the arguments for and against the
> recommendation?
> 
> Alain
> 
> On Fri, Jan 11, 2013 at 4:47 PM, Wendy Seltzer <wendy at seltzer.com> wrote:
> 
>> Hi NCSG,
>>
>> We dissented from this recommendation in Council, but were outvoted. Do
>> we want to send a letter of our own to the Board?
>>
>> Here was a letter I wrote to the drafting team, that we could repurpose
>> for the Board:
>>
>> I write because I continue to have strong disagreement with the "trust"
>> metrics and their presentation. Since I have been unable to make the
>> calls due to persistent scheduling conflicts, I wanted to spell out the
>> concerns I discussed with several of you in Prague. I appreciate the
>> work that has gone into the metrics, but believe that the "trust"
>> metrics rely on a faulty premise, that gTLDs should be predictable,
>> rather than open to innovative and unexpected new uses.
>>
>> The current draft mistakes a platform, a gTLD, for an end-product. A key
>> value of a platform is its generativity -- its ability to be used and
>> leveraged by third parties for new, unexpected purposes. Precisely
>> because much innovation is unanticipated, it cannot be predicted for a
>> chart of measures. Moreover, incentives on the intermediaries to control
>> their platforms translate into restrictions on end-users' free
>> expression and innovation.
>>
>> Just as we would not want to speak about "trust" in a pad of printing
>> paper, on which anyone could make posters, and we don't ask a road
>> system to interrogate what its drivers plan to do when they reach their
>> destinations, I think we shouldn't judge DNS registries on their users'
>> activities.
>>
>> ICANN's planned reviews of and targets for gTLD success should not
>> interfere with market decisions about the utility of various offerings.
>>
>> In particular, I disagree with the second group of "trust" metrics, the
>> " Measures related to confidence that TLD operators are fulfilling
>> promises and complying with ICANN policies and applicable national
>> laws:" namely,
>> * Relative incidence of UDRP & URS Complaints; Relative incidence of
>> UDRP & URS Decisions against registrant;
>> * Quantity and relative incidence of intellectual property claims
>> relating to Second Level domain names, and relative cost of overall
>> domain name policing measured at: immediately prior to new gTLD
>> delegation and at 1 and 3 years after delegation;
>> * Quantity of Compliance Concerns w/r/t Applicable National Laws,
>> including reported data security breaches;
>> * Quantity and relative incidence of Domain Takedowns;
>> * Quantity of spam received by a "honeypot" email address in each new gTLD;
>> * Quantity and relative incidence of fraudulent transactions caused by
>> phishing sites in new gTLDs;
>> * Quantity and relative incidence of detected phishing sites using new
>> gTLDs;
>> * Quantity and relative incidence of detected botnets and malware using
>> new gTLDs
>> * Quantity and relative incidence of sites found to be dealing in or
>> distributing identities and account information used in identity fraud; and
>> * Quantity and relative incidence of complaints regarding inaccurate,
>> invalid, or suspect WHOIS records in new gTLD
>>
>> Separately, I disagree with the targets for the "redirection,"
>> "duplicates," and "traffic" measures. All of these presume that the use
>> for new gTLDs is to provide the same type of service to different
>> parties, while some might be used to provide different services to
>> parties including existing registrants.
>>
>> Thanks,
>> --Wendy
>>
>>
>>
>> -------- Original Message --------
>> Subject: [council] Advice requested by the ICANN Board
>> Date: Fri, 11 Jan 2013 20:33:05 -0000
>> From: Jonathan Robinson <jonathan.robinson at ipracon.com>
>> To: Steve Crocker <steve at shinkuro.com>
>> CC: <bruce.tonkin at icann.org>, "Bill Graham" <bill.graham at icann.org>,
>>     <diane.schroeder at icann.org>, "Bill Graham" <bill.graham at icann.org>,
>>        "'Glen de Saint Géry'" <Glen at icann.org>,
>> <council at gnso.icann.org>
>>
>> Dear Steve,
>>
>>
>>
>> Please see the attached regarding consumer trust, consumer choice and
>> competition in the context of the domain name system per the 10 December
>> 2010 ICANN board approved resolution (2010.12.10.06).
>>
>>
>>
>> Best wishes,
>>
>>
>>
>>
>>
>> Jonathan
>>
>>
>>
>>
>>
>>
>>
>> Jonathan Robinson
>>
>> Chair
>>
>> ICANN GNSO Council
>>
>>
>>
>>  <mailto:jonathan.robinson at ipracon.com> jonathan.robinson at ipracon.com
>>
>> skype: jonathan.m.r
>>
>>
>>
>>
>>
>>
>>
>>
>>
> 
> 


-- 
Wendy Seltzer -- wendy at seltzer.org +1 617.863.0613
Policy Counsel, World Wide Web Consortium (W3C)
Fellow, Berkman Center for Internet & Society at Harvard University
Visiting Fellow, Yale Law School Information Society Project
http://wendy.seltzer.org/
https://www.chillingeffects.org/
https://www.torproject.org/
http://www.freedom-to-tinker.com/