[At-Large] Fwd: [NA-Discuss] Edits and comments to NARALO/ALAC position statement on GAC scorecard

Olivier MJ Crepin-Leblond ocl at gih.com
Sat Mar 26 00:39:43 UTC 2011

Hello Antony,

thanks for your message commenting on the ALAC position statement on GAC
My answers are interspersed in your text. Please note that I have not
had the time to consult with the wider At-Large to reply to your message
in a timely manner, so these are IMHO.

On 25/03/2011 17:28, Antony Van Couvering wrote :
> ---------- Forwarded message ----------
> From: Antony Van Couvering <avc at avc.vc>
> Date: 25 March 2011 17:28
> Subject: [NA-Discuss] Edits and comments to NARALO/ALAC position statement
> on GAC scorecard
> To: "na-discuss at atlarge-lists.icann.org Discuss" <
> na-discuss at atlarge-lists.icann.org>
> Cc: At-Large Worldwide <at-large at atlarge-lists.icann.org>
> Hi everyone,
> I'm writing in regard to the paper put together by Evan Liebovitch and
> others (
> https://community.icann.org/display/atlarge/alac+response+to+the+gac+gtld+scorecard),
> which I find to be problematic on many fronts.  The paper purports to be a
> response by NARALO/ALAC to the GAC scorecard.  In reality, however, it is
> the point of view of just a few individuals, and in my view seriously
> misrepresents the points of view of many ALAC participants.  My responses
> are not as organized or concise as they might be, but I note the March 25
> deadline for comments.  I am sure there are errors of grammar and spelling
> and in some cases (hopefully very few) of sense.

I appreciate that you think that it is the opinion of a handful of
people but in reality there have been several face to face ALAC sessions
and remote conference calls in the years leading to this statement, some
as recently as in San Francisco. The views expressed in the document are
as close to consensus as we might get. I am glad that you agree with
many of them. Perhaps can we discuss the ones you disagree with. I'll
try and take them one by one:

> (Note: For all intents and purposes, my "constituency" within ICANN is as a
> member of NARALO.  Although my company wishes to provide services to new
> gTLD applicants, it is not a member of the registry constituency (refused)
> or the business constituency (refused.)  As a North American resident, as a
> longtime NARALO commenter and participant, and as an otherwise "homeless"
> participant (no stakeholder group will have me) in the ICANN process, I
> would like to offer my thoughts and amendments.)

I appreciate that you are having trouble finding a "home" at ICANN.
Nonetheless you cannot pass as a simple user when your company will
stand to earn much directly from the new gTLD process. Okay, so you're
an Internet user, but aren't you a little biased in your answers?

> There are many points in this document that I agree with, and many where I
> DISAGREE (in caps throughout for ease of reference).  The document is
> thorough and well-drafted, but I don't believe it should be put out as is,
> for reasons that I lay out below.
> I offer my thoughts with a constructive spirit to try to present the Board
> with a document that truly represents consensus and has the broad support of
> the ALAC community.  Where I have referenced outside materials, I have added
> references in brackets and capital letters.

This is much appreciated. Thanks.

> Antony Van Couvering
> ++++++++++
> This document should not be put as an ALAC document, even with caveats,
> until there is some certainty that it approximates the point of view of ALAC
> members.  From what I have seen -- and I would be happy to be corrected --
> the only inputs have come from one NARALO member and one EURALO member, with
> a couple of other small comments.

For the reasons I have enumerated earlier, I'm afraid that is an
incorrect allegation. That said, I agree that ALAC's point of view is
never going to reach a full unanimous consensus - such is the nature of
the diverse At-Large constituency out there. I think that the Board and
the GAC, when reading At-Large statements, understands this. All we can
purport to be doing, is to act in the best interests of Internet users
and act as the relay to the majority of voices out there. Will some of
the voices out there disagree with what the ALAC says? Absolutely, but
that's the limitation of having such a diverse membership. We're not the

> The document notes:
> "It must be emphasised that, because of the extremely compressed timeline
> allowed for this response, ALAC has not received the broad At-Large
> community feedback and buy-in that such a statement would normally warrant.
> While its authors have solicited comment and ALAC endorsement, this
> statement is still subject to review and possible refinement pending broader
> At-Large distribution."
> So, as it stands, it is the work of just a few people.  I don't see the
> value of putting out a position paper that doesn't represent the views of
> NARALO or ALAC, in fact it may be harmful.  If this position paper doesn't
> represent an ALAC consensus, or note the areas of consensus and
> non-consensus, then it shouldn't be published.

When I originally read the disclaimer, I thought: "why shoot ourselves
in the foot?"
Thinking again, I thought this was rather a very fair statement to make.
Recognizing one's one limitations is one step towards a wiser response.

> One of the areas where ALAC has been very useful (and consistent) is in its
> insistence on consensus and transparency.  The ALAC statement of Nov 2010
> [A] says:  "In order to ensure that the entire At-Large community had the
> opportunity to review the five statements, and for their perspectives to be
> taken into account, the ALAC resolved upon a process of consultation and
> amendment for the statements by resolution at its 24th March 2009
> teleconference. As a result, the Summit Working Group statement was opened
> for public comments by the At-Large community on 1st April, closing on 11th
> April. The New GTLD Working Group then amended the statement to incorporate
> comments received."
> It strikes me that the above statement is a good method for achieving
> consensus, whereas a position authored by just a few, without consultation,
> is not.

I'm afraid that you have an incomplete view of the path and work that
took place to reach the statement we are working on now. This is not a
one-off statement with no prior history. This is an established position
developed bit by bit through meetings too numerous to be listed since
the At-Large Summit in Mexico City. If we had the resources to do so,
I'd be ever so happy to have this all documented and tracked - it would
make for a great bottom-up consensus building manual.

> The paper makes some good points but also puts forward positions that not
> only disagree with the previous hard-fought community consensus, they in
> some cases disagree with previous ALAC consensus positions.  As the ALAC
> said recently [B], "we have serious concerns regarding what we consider to
> be backwards steps from areas of community consensus."  It is important that
> we respect the community consensus, and the Guidebook, which has been
> through years of examination, does represent that consensus, even if it
> doesn't represent the views of ALAC 100%.

I am rather baffled as to the meaning of this sentence. It reads as
though you mean that the Applicant Guidebook, having been through
various iterations, represents a consensus which ALAC has not reached?
DISAGREE - why else, would the ALAC be asked formally by the Board and
by the GAC to comment?

> To the paper itself:
> 1. Section entitled "Thematic Response." The draft paper says: "ALAC has
> always had significant challenges regarding both the processes taken to
> produce the current Applicant Guidebook (AG) as well as its result."   I
> don't think this is entirely true.  For one thing, one of the loudest voices
> to initiate the current process came from the ALAC, stemming directly from
> the flawed sponsorship round, of which .XXX is the last progeny. [C]
> In that report, and in subsequent statements, ALAC has emphasized to ICANN
> that policy should be the result of consultations and consensus from the
> whole community.   Given that the guidebook represents close to 3 years of
> continual discussion, which has drawn out all the arguments pro and con,
> which was initiated by the GNSO and examined closely by every constituency,
> advisory committee, and stakeholder group, this process better represents
> rough consensus among the entire community than any other ICANN policy ever
> proposed.

Antony, you forget to mention a significant amount of interference
making the process slow as ever because issues which were initially
swept under the carpet end up stinking the whole room. I'm sure you'll
agree with me that there are several version to history - neither of
which require examining now.

> 2. Scorecard Items 1, 2.1, 12 - The paper purports to have ALAC agreeing
> with the GAC to eliminate Module 6, the "morality clause."   It claims that
> in Mexico City, the ALAC said that "ICANN's obsession with a judicial,
> adversarial process provides a barrier to legitimate objections and needless
> expense to TLD applicants defending against trivial, unsustainable
> objections."  I agree that the morality clause is very silly [D], but it
> pays to be careful about what we're talking about, and assertions that might
> not sustainable when examined.  I DISAGREE with the conclusion.

Agreed that the ALAC conclusion may ruffle a few feathers, but it's a
conclusion shared by many in the At-Large constituency.  However, I
appreciate that you have taken the time to analyse this below:

> First, the ALAC said nothing in Mexico City about obsessions by ICANN with
> adversarial procedures. [E]  For another, that's not what the procedure as
> outlined in the Guidebook does.  Finally, although the GAC did say that they
> wanted to jettison Module 6, that's not where they ended up after meeting
> with the Board.  Recall that the scorecard has now been the subject of
> several intensive meetings between the GAC and the Board, and both sides
> have modified their positions. The GAC indicated in Brussels that its
> concern relates to requiring governments to use this objection process. The
> Board and GAC therefore agreed that it would be consistent with GAC advice
> to leave the provision for Limited Public Interest Objections in the
> Guidebook for general purposes, but the GAC (as a whole) would not be
> obligated to use the objection process in order to give advice.  There
> should not be the implementation of an entirely new objection procedure that
> is a complete turn-around from what is already in place, esp. when the GAC
> and the Board seem to have reached an accommodation.

Ultimately, it is for the Board to decide on the ALAC's recommendations.
Our staff has attempted to receive a clear indication of that the
current position of the GAC and the Board are, but at the current time,
neither of them have been published and we are working on older,
concrete documents. We have made our position on Rec.6 known and I see
no shift in this.
[ note: I have erased the points which you are in agreement with for the
sake of shortening this message ]

> 5. Scorecard Items 1, 2.1, 12 - The paper says: "As a replacement we endorse
> Scorecard #2.1 with the following conditions: A similar objection mechanism
> must exist for non-governmental organisations to launch objections (either a
> better-resourced branch of ALAC, a revised version of the Independent
> Objector, or something similar)."   DISAGREE.  I note this statement calls
> for complete removal of ONLY the objection procedure based on “limited
> public interest.” The objection procedures that have been developed based on
> communty consensus should not be replaced with the GAC proposal for String
> Review. The current AGB objection procedure is a necessary part of the
> process.  We disagree that the ALAC or any other body should have an
> objection mechanism that is not agreed upon by the community or currently
> defined in the AGB.

Thanks for pointing this out - perhaps there might be some refinement
needed here. I don't think that there is an un-surmountable gap here and
would welcome suggestions to articulate the ALAC's view.

> 8. Scorecard Items 1, 2.1, 12 - The paper says (point 8): "Split decisions
> -- in which even rough consensus between the GAC, ALAC and other
> stakeholders is impossible -- should weigh in favour of approving the string
> under objection. Globally blocking a TLD string on public interest grounds
> requires, in our view, consensus that the very existence of the string
> damages the public interest."  DISAGREE.  This particular point highlights
> the very reason that there should not be a multi-party review for the
> objection procedure.   Finding agreement between the GAC/ALAC/Other
> stakeholders will impede the objection process. Objections should be filed
> by one party per one application, and reviewed by one evaluator.

I think that what's being said here is that the default for a string, is
for it to be allowed, except when there is a consensus to block it. Not
having such a default, Antony, will likely endanger the new gTLD process

> 9. Scorecard Items 1, 2.1, 12 - The paper says (point 9):  "In agreeing with
> Scorecard #12, we also believe that it is simple common sense to be able to
> alert TLD applicants, as early in the application process as possible, to
> potential objections."  DISAGREE.  I oppose implementing any new procedure.
>  The current process allows sufficient time for applicants to mediate with
> objectors.

Discussions in San Francisco led us to think otherwise. At least that's
from the majority of people I and other participants present spoke to.
Even the GAC and the Board appear to come to an agreement on this.

> 10. Scorecard Items 1, 2.1, 12 - The paper says (point 9): "Applicants,
> having entered such good-faith negotiations with potential objectors, should
> be able to make minor changes to their applications in order to comply with
> a negotiated settlement."  I DISAGREE.   There should be no changes to an
> application after submission; to do so brings up an entire set of difficult
> complications -- for instance, should the changed application then be
> re-evaluated?

Again - that's not the tone I heard in the room. I don't see how this
would be detrimental to Internet Users. It might even same applicants
money and potential head-aches.

> 11.  Theme 2 - trademarks.   Generally, I have trouble with the sentence
> that says: "We support many of the Scorecard's name-protection measures
> which are consistent with the STI consensus recommendations and even a few
> that go beyond."  Does this mean that the paper supports those GAC measures
> that are consistent with the STI, but not others?  Or does it mean that it
> supports all the GAC measures, many of which are consistent with the STI?
>  Which are which?  In many of the points regarding trademarks, I DISAGREE
> with the positions taken by this paper

Thanks for pointing this out. Perhaps could this be better worded - and
since I realise that this is a sensitive issue, perhaps can we spell
this out in a clearer way.

> In general, I support the guidebook on the following points (with reasons):
>  -- I agree with the guidebook, that all trademarks for nations and
> supranations shall be accepted into the Trademark Clearinghouse. A date of
> acceptance cut-off will not be utilized, as this rewards bad actors from
> previous rounds.
>  -- There should be a Sunrise OR IP Claims, but not both.  Having both is
> redundant and circular, and imposes significant costs on registry operators,
> which will be passed onto registrants.

See STI group report & ALAC minority report. I think the facts expressed
in the statement go inline with ALAC's position then.

>  -- Trademarks for IP Claims or Sunrise must be an exact match. Going beyond
> exact matches is unworkable and gives ICANN  more discretionary  power than
> any  currently accepted TM law might. There shall be no requirement for
> post-launch IP Claims.

Thanks for pointing this out actually. I think that this may have
slipped by when the paper was drafted. I too support the exact match and
I think many others have said the same. I think this might be an error
and am glad you've caught it.

>  -- Registries shall have discretion to restrict eligibility of trademarks
> based on objective criteria reasonably related to the purpose of the TLD
> such as evidence of use, or class of goods and services (e.g. .shoe could
> restrict Sunrise to only trademark registrations that show use in
> shoe-related class of goods and services).
>  --  There shall be no requirement for post-launch Sunrise TM Claims.
>  --  Each trademark registration must be supported by evidence of use in
> order to be the basis of a URS complaint

See STI group report & ALAC minority report. I think the facts expressed
in the statement go inline with ALAC's position then.

> 12. The paper says, in regard to the URS:  "A successful complainant should
> have first right of refusal for transfer (#6.2.12)."   DISAGREE This goes
> against the STI recommendation (as a side note, any time ALAC is going
> against community consensus, it should be noted.)  In agreement with
> IRT/STI, I  do not support the right of first refusal transfer of names to
> URS complainants.  The Uniform Rapid Suspension service is specifically
> that, suspension in order to stop the resolution of a domain name that is
> harmful or infringing.  Any domain transfer should be awarded through the

See STI group report & ALAC minority report. I think the facts expressed
in the statement go inline with ALAC's position then.

> 13.  Expanding the URS beyond exact matches.  DISAGREE.  This is very thin
> ice, for a few reasons. First, the obvious issues with free speech:
> extending the URS beyond exact matches is problematic and impedes freedom of
> speech, for example “wal-martsucks.tld”.  Second, many brand names are parts
> of common words.  Would the huge bank "ING" be able to object to any gerund
> or participle containing the letters "ing"?

See my note above. I personally agree with you. Could others please
chime in on this too?

> 14. The paper says, "In regard to Consumer Protection measures as stated in
> Scorecard #6.4 (except for #6.4.4, see below), ALAC strongly agrees with the
> GAC positions."  DISAGREE.   For one thing, it is inappropriate to say that
> the ALAC agrees or disagrees with anything absent proper consensus, let
> along saying that it "strongly agrees."    The GAC position, I feel, comes
> from a lack of understanding of what a registry does; this may be true of
> anyone who hasn't run a registry, including some ALAC members.
> The GAC's positions 6.4.1 and 6.4.2 are ill-informed of the actual registry
> function.  The GAC scorecard 4.1 states: “Amend the "Maintain an abuse point
> of contact" paragraph in the DAG to include government agencies which
> address consumer protection.”
> All registry operators already must provide an abuse point of contact
> (within the registry administration staff).  The public face of this POC is
> an email, abuse at registry.TLD.  The contact person then acts upon or notifies
> the appropriate party of any required action.  The GAC scorecard seems to
> call for a listing of government agencies which address consumer protection
> which would be published on the registry website.  This request is outside
> the registry operator's purview.  4.2 states: “A registry operator must
> assist law enforcement, government agencies and agencies endorsed by
> governments with their enquiries about abuse complaints concerning all names
> registered in the TLD, including taking timely action, as required, to
> resolve abuse issues."
> This demand is acceptable with the condition that registry operators should
> provide reasonable assistance to law enforcement (both civil and criminal)
> consistent with applicable national law.  Registry operators should not be
> required to provide any proprietary data without a legitimate, legal
> request, in order to prevent violation of national privacy laws.

Perhaps a refinement of the ALAC statement paragraph is required here.
That said, I have heard it time and time again that the current
procedures in place are very weak and just not good enough. Innocent
Internet users are being scammed and have little recourse. Please be so
kind to accept the victim's point of view to prevail here.

> 15. Theme 3 - Categories.   The paper says, "Despite widespread community
> request, ICANN has not budged from its long-standing position of only two
> categories of applications -- "regular" and "community". This is despite the
> fact that GNSO policy on gTLDs allows for categorization, and indeed allows
> for differential pricing for different categories (another policy
> conveniently overlooked in all versions of the AG to date).  The GAC
> Scorecard, in our view, simply adds one more strong voice to the need for
> categorization beyond what now exists. While arguments have been made -- and
> should be heeded -- about the concern that categorizatioin mechanisms would
> be subverted for financial gain (also known as "gamed"), ALAC holds the view
> that such concerns are not sufficient to resist implementation of new
> necessary categories. Even if gaming succeeds, in our view it is prefereable
> to let a few applications "slip through the cracks" than to deny the public
> service and innovation possible through creating a small number of new
> categories."
> VEHEMENTLY  DISAGREE on nearly every point.  Categories are implicity
> problematic and despite what the authors have written and what ALAC might
> feel on the subject, they have been rejected by the entire community time
> and time again.  The designation of more categories beyond “Community” and
> “Generic” raises more problems than it could possibly solve.

At the 2010 EURODIG meeting in Madrid, a panel came to the conclusion
that the *lack* of categories and the batching of all new gTLD
applications into a "one size fits all" scenario was probably one of the
factors delaying the whole new gTLD process. Some categories of new gTLD
could have been launched years ago, had these been in place. I wonder...

> 16. The paper says, "In principle, we endorse the GAC position of wanting a
> special status for TLD names which indicate entire sectors which may be
> subject to regulation (such as .bank, .pharma, .lawyer).  DISAGREE.  I
> support the Board position and strongly disagree WITH allowing special
> status for certain regulated sectors.  There are no proprietary rights to
> such words. The admission that “we are unclear about what form” and “how
> ..to verify and enforce” clearly presents the problem of creating Special
> Categories.  These concerns are dealt with through the 5 processes already
> in the Applicant Guidebook, and the position taken by the paper's authors
> creates new rights where none existed before -- in contravention of earlier
> adopted ALAC positions taken with full ALAC consensus.  The GAC proposal is
> unnecessary as the underlying concern is already addressed by the following
> mechanisms: (a) The GAC objection process (advice); (b) Background
> checks/vetting of applicants; (c) Community objection procedures; (d)
> Malicious activity controls; (e) IO Objections; (f) Public comment; and (g)
> Board’s ability to reject an application per Module 5.1.

>From a user's point of view, anything which can help with certifying the
genuine Web site is a good thing. Have you fallen prey to phishing?
Whilst not having been affected personally, such ordeals have been
widely reported. I should therefore be surprised that you do not agree
with this measure.

> 17. Geographic Names -- broadly, I support the position taken by the paper.
>  It says, "We agree with the ICANN Board response of relying on
> pre-determined names."  If geographical names beyond country names are to be
> protected, they must come from an internationally recognized authoritative
> list. I note that this discussion is for protection at the SECOND level.
>  The GAC should NOT be able to unilaterally designate a word as geographic.
>  Many geographic names are also generic terms, as aptly described by Board
> member Bruce Tonkin's .MARS illustration.  Does Mars the planet have a
> better right to mars.TLD than Mars the chocolate bar?  What if the martians
> don't care?  This problem is dealt with through the TM clearinghouse, URS
> and UDRP procedures.

Point taken. Glad we're in agreement. Not a strong point, although I
really think this will be dealt with on a case by case basis.

> 19. Operational readiness.  The paper states, "We would note that only the
> vested interests within ICANN are pushing for a massive round of
> simultaneous applications and approvals. We would advise a more staggered
> approach, with a steady timetable of approvals and delegations."  DISAGREE.
>   Apart from the gratuitous editorializing (most ICANN participants have a
> vested interest, including many in ALAC), this statement goes squarely
> against the GNSO policy and in addition flies in the face of all the facts,
> science, and sober representations by technical people in the community.
>  The root is monitored by everyday by multiple parties all around the world.
>  Delegation rate scenarios have been modeled and tested.  There is no
> technical basis for limiting the number of new TLDs to be added to the root.
>  The Board did note, personnel capacity will limit the possibility of
> processing more than 1000 new TLDs/year.  As noted by Steve Crocker, adding
> 1000 TLDs annually to the root is similar to adding a drop of water into a
> liter-sized bottle.

Point taken on the"gratuitous editorializing" - but with all due
respect, I fear that you missed the point which was not primarily a
technical one. The proposal of several waves of applications makes
business sense in risk mitigation, as well as not making the first round
as "possibly the only round ever". Making sure that there will be a
second, third, fourth, etc. rounds will ease the pain for everyone and
therefore makes sense, especially in the mind of the users who are going
to have to absorb this flurry of new gTLDs. User confusion is something
you need to think of too!

> References:
> [A] http://www.atlarge.icann.org/announcements/announcement-19apr09-en.htm
> [B]
> https://community.icann.org/display/atlarge/Additional+ALAC+Statement+on+Draft+Final+Applicant+Guidebook
> [C] ALAC position on 2003 sponsored TLDs.
> http://www.dnso.org/clubpublic/gtld-com/Arc00/msg00039.html
> [D] Blog post by Antony Van Couvering.
> http://www.namesatwork.com/blog/2008/10/30/icanns-morality-memo
> [E] "Statement on New gTLDs Applications Process v2,"
> https://st.icann.org/alac-docs/index.cgi?statement_on_new_gtlds_applications_process_v2_al_alac_st_0309_3_en

Thank you for this extensive answer. It's been well thought out and I
appreciate this. I hope that my answers have managed to shed some light
on some of the parts which you might disagree with. I encourage others
to speak too!

Kindest regards,


Olivier MJ Crépin-Leblond, PhD

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