[NA-Discuss] New gTLDs

[Wendy Seltzer]

Hi NARALO,

I promised you a brief recap of the new gTLD process and my commentary.
 I support new gTLDs, but don't think this process is getting us there.

*The links:*
ICANN's New gTLDs page:
<http://icann.org/topics/new-gtld-program.htm>
Recent update email from Denise to GNSO:
<http://gnso.icann.org/mailing-lists/archives/council/msg04898.html>

GNSO's final report:
<http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm>
Summary for LA:
<http://losangeles2007.icann.org/files/losangeles/gnso-newgtlds-workshop-29oct07.pdf>

The allegedly "simplified" process chart:
<http://gnso.icann.org/correspondence/gtld-process-simplified-10apr08.pdf>

If you can read only one document,  read the GNSO's 19 recommendations,
below (from the final report).  These are the recommendations for which
the staff is currently working to determine implementability, and which
the Board will be asked to approve if they are deemed implementable.

Speaking personally, I object to criteria 3, 6, and 20, and further have
concerns about 2 if it is not defined precisely.  My overarching concern
about all of these is that they are indeterminate, and thus tend to bulk
up the evaluation process and invite gaming in opposition.    I have yet
to be convinced that this "thick" approach offers benefits over a simple
string-matching comparison.

> 3. Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law.
A string, as such, cannot infringe rights, only its misuse.  While there
may be legal remedies against the misuse of a string, such as defamation
or trademark infringement, in U.S. law, there are no "generally accepted
legal principles" giving rights in strings as such.

> 6. Strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.
There are few "generally accepted legal norms relating to morality and
public order" but plenty of people who will come forward purporting to
speak for them.   Strings don't violate norms, either.  This will be a
recipe for censorship.

> 20. An application will be rejected if an expert panel determines that there is substantial opposition to it from a significant portion of the community to which the string may be explicitly or implicitly targeted. 
What on earth is "implicit targeting"?    What opponent/competitor can't
dream up an astroturf organization that feels implicitly targeted by the
target TLD string?

I've said many of these in greater detail elsewhere.
--Wendy

GNSO 	
RECOMMENDATIONS
<http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm#_Toc43798015?>
	
1
ICANN must implement a process that allows the introduction of new
top-level domains.
The evaluation and selection procedure for new gTLD registries should
respect the principles of fairness, transparency and non-discrimination.
All applicants for a new gTLD registry should therefore be evaluated
against transparent and predictable criteria, fully available to the
applicants prior to the initiation of the process. Normally, therefore,
no subsequent additional selection criteria should be used in the
selection process.
	
2
Strings must not be confusingly similar to an existing top-level domain
or a Reserved Name.

3
Strings must not infringe the existing legal rights of others that are
recognized or enforceable under generally accepted and internationally
recognized principles of law.

Examples of these legal rights that are internationally recognized
include, but are not limited to, rights defined in the Paris Convention
for the Protection of Industry Property (in particular trademark
rights), the Universal Declaration of Human Rights (UDHR) and the
International Covenant on Civil and Political Rights (ICCPR) (in
particular freedom of expression rights).

4
Strings must not cause any technical instability.

5
Strings must not be a Reserved Word.
	
6*
Strings must not be contrary to generally accepted legal norms relating
to morality and public order that are recognized under international
principles of law.

Examples of such principles of law include, but are not limited to, the
Universal Declaration of Human Rights (UDHR), the International Covenant
on Civil and Political Rights (ICCPR), the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW) and the
International Convention on the Elimination of All Forms of Racial
Discrimination, intellectual property treaties administered by the World
Intellectual Property Organisation (WIPO) and the WTO Agreement on
Trade-Related Aspects of Intellectual Property (TRIPS).
	
7
Applicants must be able to demonstrate their technical capability to run
a registry operation for the purpose that the applicant sets out.
	
8
Applicants must be able to demonstrate their financial and
organisational operational capability.

9
There must be a clear and pre-published application process using
objective and measurable criteria.
	
10
There must be a base contract provided to applicants at the beginning of
the application process.
	
11[skipped]

12
Dispute resolution and challenge processes must be established prior to
the start of the process.
	
13
Applications must initially be assessed in rounds until the scale of
demand is clear.

14
The initial registry agreement term must be of a commercially reasonable
length.

15
There must be renewal expectancy.

16
Registries must apply existing Consensus Policies and adopt new
Consensus Policies as they are approved.

17
A clear compliance and sanctions process must be set out in the base
contract which could lead to contract termination.

18
If an applicant offers an IDN service, then ICANN's IDN guidelines[28]
must be followed.
	
19
Registries must use only ICANN accredited registrars in registering
domain names and may not discriminate among such accredited registrars.
	
20*
An application will be rejected if an expert panel determines that there
is substantial opposition to it from a significant portion of the
community to which the string may be explicitly or implicitly targeted.
	


-- 
Wendy Seltzer -- wendy at seltzer.org
Visiting Professor, Northeastern University School of Law
Fellow, Berkman Center for Internet & Society
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/
https://www.torproject.org/