[ALAC] Revised statement on the PIC DRP

[Alan Greenberg]

The original draft and discussion can be found at 
https://community.icann.org/x/pJlwAg. Thanks to 
Rinalia and Evan for a great revision (which I have slightly tweaked here).


ALAC Statement on Public Interest Commitments Dispute Resolution Procedure

The ALAC is deeply troubled/concerned by the 
proposed enforcement mechanism for the new gTLD 
Public Interest Commitments, which appears to be ineffectual by design.

Although described as a Dispute Resolution 
Procedure, the Public Interest Commitment (PIC) 
was introduced to the community as a process that 
could be “enforced by ICANN” 
(<http://www.icann.org/en/news/public-comment/base-agreement-05feb13-en.htm>http://www.icann.org/en/news/public-comment/base-agreement-05feb13-en.htm).

Many in our community were led to believe that 
“enforced by ICANN” meant that the PIC process 
would include an ICANN Compliance connection and 
that ICANN itself would carry out the enforcement.

As the PIC is currently presented, the process:
    * Requires possibly significant fees with 
magnitudes that are currently unknown;
    * Requires that the complainant demonstrates 
measurable harm due to the violation;
    * May be filed by ICANN, but without any obligation for it to do so.

Given that no exception is noted in the PIC 
process, ICANN could presumably only file an 
objection if ICANN itself could demonstrate that 
it was measurably harmed.  This situation recalls 
the sad period when ICANN applied RAA sanctions only when it was not paid.

The UDRP, where decisions are outsourced like 
those of the proposed PICDRP, was deliberately 
designed to operate independently – the opposite 
of "by ICANN" as claimed by ICANN for the PIC. 
And unlike trademark claimants using the UDRP, 
members of the public should not be expected to 
have financial – or even direct – interest in 
order to complain when PICs are not being fulfilled.

The ALAC believes that ICANN made a serious 
mistake in not requiring all new gTLD applicants 
to stand by their application promises in the 
form of contractual compliance.  We expected that 
the PIC, despite being a late addition to the 
application process, would be used as a crucial 
mechanism to uphold the interest of the public 
and the end user.  As proposed, the PIC 
implementation is weak with features that 
actively discourage and penalize 
complainants.  The PIC Dispute Resolution 
Procedure as it is currently presented provides 
little leverage for the Global Public Interest 
and it is therefore unacceptable.  We firmly 
believe that ICANN must bestow upon the PIC 
process the true force of responsible and competent enforcement.