Dear Julf, I hear you. This is a classic case of forum shopping. But this ongoing incident takes us to the core of how ICANN is organised in its SOs and ACs. The AoC Review process addresses each SO/AC individually. It then includes an ATRT Review, but is there a process that looks at the overall ICANN structure and whether that kind of structure works? Advisory Committees are able to report their findings and recommendations to the Board. In the past, the Board has had to balance stakeholder input and make a decision. With the Accountability process, some parts of the community have been led to believe that policy that reached consensus in a PDP is unalterable and the Board needs to rubber stamp it. That would make any advisory committee obsolete. Irrespective of the actual discussion topic, we need an ICANN-wide discussion on the place of SOs and ACs. We also need to know whether the balance of stakeholders has been affected by the recent CCWG Accountability recommendations and by-law changes. Putting the blame on such and such a type of stakeholder is, in my opinion, not productive. The restrictions on individual GAC representatives taking part in GNSO PDPs are well known. The underlying politics within the GAC (back in the the member countries of the GAC) are complex. The topic itself has been poisoning the atmosphere for a while. The GAC Chair is raising the sword of Damocles... and whether we like it or not, a negotiation is going to be needed... because governments have nuclear weapons and the private sector and civil society do not. The wild west where we are completely able to decide on our own destiny is a dusty illusion. Kindest regards, Olivier On 01/11/2016 21:20, Johan Helsingius wrote:

Evan,

...

At the threat of being an ICANN heretic (and it wouldn't be the first time), I'm on the side of the governments here. Unfortunately, as so often with ICANN, the battle is not about the actual IGO name issue, but about the proper process to determine it. What this really is about is the way the organisations refused to participate in the proper GNSO process (despite being invited to), but instead going to GAC and the ICANN board, as they thought that would be an easier way to get what they wanted. Do we want to encourage using government power as a leverage to bypass multistakeholder community processes?

Julf

[Disclosure: I sit on the GNSO council, appointed by the NomCom. I have no business connection with the "domain industry"]

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Dear Christian, On 02/11/2016 14:48, Christian de Larrinaga wrote:

I doubt that GAC is really saying it will take off to ITU. (What GAC thinks is high level concern may well not coincide with what ITU does and that disparity remains a barrier). But it is showing the prisoner the implements of torture in advance.

I should have perhaps completed my sentence: the GAC Chair is raising the Damocles sword... yet this sword is not his. The GAC itself is a vehicle created by ICANN, so it won't leave. GAC membership has grown steadily until now. The concern is that it starts losing members and that these members go to ITU instead. Imagine a boycott of GAC by a number of countries. Imagine a walk-out. Has anyone ever considered this? My point is that you need to keep GAC *members* happy or they'll take their business elsewhere. During the IANA Stewardship transition we have heard enough times that ICANN is a private sector led organisation. In business terms, it means, keep your customers happy or they'll leave. And that's only part of the equation: first they'll leave and then they'll kill business by imposing licensing at national level.Some people reading this might be saying "good! that will teach them!" but I think that national licensing of the domain name industry will be the beginning of the end for innovation on the Internet. Kindest regards, Olivier

Olivier is exactly right Allegations of subversion of process are *absolute bullshit*. The process is working *exactly* as ​ICANN's bylaws demand; - The GNSO has created policy in the interest of domain buyers and sellers. - Meanwhile, the GAC is doing just what the bylaws tell it to do ... advise ICANN. It has no defined decision-making role in the policy development process, and its advice -- like that of any AC -- may be ignored, usually without consequence. But not this time. What has got the GNSO in its current whinging fit is the "or else" threatened if ICANN blows off the GAC advice on IGOs ... in the way it has customarily blown off previous AC advice that counters the GNSO's will. To this, my reaction is less "how could this happen" but rather "this was inevitable, I'm amazed it didn't happen sooner". Welcome, finally, to the consequences of ICANN's deliberate separation of stakeholders into different classes; those who must be heeded (the GNSO) and those who only give advice and may be casually blown off (the ACs). ICANN must now deal with this unequal, unfair structure of its own design. I welcome the discussion Olivier calls for, that recognizes and elevates the interests of those who neither buy nor sell domains, yet are profoundly impacted by ICANN policy. Until then .... the onus, should it wish to avoid a conflict, is on the GNSO to accommodate the AC, not vice versa. Preferably there is a negotiated middle ground -- in a meeting of equals, not an invitation as a guest to an already-slanted working group. I have seen my share of GNSO WGs where the invited advisory council reps were factored out of the final consensus because the output was, after all, subject to GNSO ratification and nobody else's. Indeed, I was part of a 2012 working group that considered IOC and ICRC requests and, eventually, blew them off. So they DID try the bottom-up process and it failed because the GNSO overpowered the complainants. What we see now is the payback for that. I've also been happy to see that CCWGs are working well. Maybe that is the answer. "We invited them to our process that only we need to ratify" is likely insufficient inclusion. Perhaps the discussions Olivier asks for will result in CCWGs being the default bylaw-mandated structure for PDPs. But enough about process.... Lest we get distracted by process as ICANN does so often and so well, let's also remember the substance of the issue. Multiple people on this thread have complained "why should we afford protection to the XXX if we don't give it to someone else deserving?" or "why should ICANN give protection to XXX that it doesn't get elsewhere?" Such arguments are so commonplace within ICANN that I consider them to be corporate culture, the standard retort to anything that suggests change to the status quo. Their logic can be compressed into: *If you can't fix everything, don't fix anything.* I reject that argument, deliberately advanced to stifle improvement and innovation while enabling past errors to remain errors in perpetuity. The issue in front of us -- should ALAC advise on the matter -- is not about the value of MSF or trademark protections of IGOs. We are constrained to deal with protection of IGO strings within gTLDs. Inside that narrow regard there is a public interest in which, IMO, we should engage. At very least, I cannot understand why anyone considering the public interest would oppose reserving ICRC strings; that body that is explicitly mentioned in the most fundamental of international humanitarian treaties. Its names and symbols are most certainly abused regularly. In the case of Alan's favourite example.... the International Organization for Standardization has members from 163 countries, that produces information critical for interoperability in thousands of fields. Its protection is not quite as critical as the ICRC (and UNICEF, UNHCR, etc) because it does not solicit public funds. However the public information it produces is not just useful but required to be complete and accurate by both the private and public sectors. So on the balance I would support its protection. As a matter of general criteria I would want to protect any IGO that either solicits public funds or has a significant public-information role. If ICANN wishes an internal body to identify criteria for organizations whose strings are in need of public-interest protection, At-Large is actually the appropriate place to advise on that. But if brinkmanship between the GAC and GNSO demands a binary answer from ALAC, the massive public benefit of protecting the ICRC and other fundraising IGOs overrides the domain industry's entitlement to commoditize IGO strings. The more obscure IGOs don't require protection, but reserving their strings is harmless from a public-interest point of view should we be faced with an all-or-nothing choice. ​- Evan​

Olivier echos exactly my point! (re: GAC only seem to have used the "more reliable" means available to them). Regards On Wed, Nov 2, 2016 at 8:54 AM, Olivier MJ Crepin-Leblond <ocl@gih.com> wrote:

Dear Julf,

I hear you. This is a classic case of forum shopping.

But this ongoing incident takes us to the core of how ICANN is organised in its SOs and ACs. The AoC Review process addresses each SO/AC individually. It then includes an ATRT Review, but is there a process that looks at the overall ICANN structure and whether that kind of structure works?

Advisory Committees are able to report their findings and recommendations to the Board. In the past, the Board has had to balance stakeholder input and make a decision. With the Accountability process, some parts of the community have been led to believe that policy that reached consensus in a PDP is unalterable and the Board needs to rubber stamp it. That would make any advisory committee obsolete.

Irrespective of the actual discussion topic, we need an ICANN-wide discussion on the place of SOs and ACs. We also need to know whether the balance of stakeholders has been affected by the recent CCWG Accountability recommendations and by-law changes.

Putting the blame on such and such a type of stakeholder is, in my opinion, not productive. The restrictions on individual GAC representatives taking part in GNSO PDPs are well known. The underlying politics within the GAC (back in the the member countries of the GAC) are complex. The topic itself has been poisoning the atmosphere for a while. The GAC Chair is raising the sword of Damocles... and whether we like it or not, a negotiation is going to be needed... because governments have nuclear weapons and the private sector and civil society do not. The wild west where we are completely able to decide on our own destiny is a dusty illusion.

Kindest regards,

Olivier

On 01/11/2016 21:20, Johan Helsingius wrote:

...

Evan,

...

At the threat of being an ICANN heretic (and it wouldn't be the first time), I'm on the side of the governments here. Unfortunately, as so often with ICANN, the battle is not about the actual IGO name issue, but about the proper process to determine it. What this really is about is the way the organisations refused to participate in the proper GNSO process (despite being invited to), but instead going to GAC and the ICANN board, as they thought that would be an easier way to get what they wanted. Do we want to encourage using government power as a leverage to bypass multistakeholder community processes?

Julf

[Disclosure: I sit on the GNSO council, appointed by the NomCom. I have no business connection with the "domain industry"]

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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!

I think you hit on a very important point, Roberto. Does this lead to a general proposal or do we just go one by one through each group of IGOs, NGOs, various charities, not-for-profits, civil society groups, sports teams? who can find their way to ICANN? When you analyze this it's anyone with a recognizable mark. This is really just a special case of intellectual property protection. For example I was once many years ago threatened by Pfizer because I had registered (when the product was first released) some names like viagra-lawsuit.com thinking maybe it could be an information clearinghouse of some sort (there weren't many lawsuits, bad guess!) We seem to have won in the lawyer to lawyer arguments, first amendment rights, basically a news function, like using the string 'viagra' in a newspaper headline. Hard to tell as they just disappeared after several back and forth letters. But how is this current kerfuffle different from Pfizer (just an example) asking to reserve any SLD containing the string 'viagra' or any other TM product? They probably have thousands. And they can even throw in the compelling argument of fraudulent drug sales, protecting the public, etc. I don't question Pfizer et al's right to defend their marks legitimately. It's the question of whether or not there should be a general prior restraint policy? Or do we evaluate these on a case by case basis? And even if we do that then using what principles? Just perceived political leverage? It would seem to come down to the mommy rule: If I give you one then I have to give one to everyone! On November 2, 2016 at 02:18 roberto_gaetano@hotmail.com (Roberto Gaetano) wrote:

Hi all.

(I anticipate that this message will not reach the ALAC internal list, as I am not a member of it)

Personally, I believe that this whole story has very little, if anything at all, to do with “public interest” but is all about having one stakeholder of the global equal multi-stakeholder model being more equal than the others, if I may paraphrase George Orwell.

If we see the matter under this point of view, it seems obvious to me that it is in the best interest of all other stakeholders, including us, to reject this approach. It would be also in the best interest of ICANN as an umbrella organization not to jeopardize its own governance model, but for them to provide this answer in absence of the reaction of the stakeholder community would be extremely complicated.

So much for the form.

About the substance, the claim is made that the protection is needed to avoid scam on fundraising using IGO names.

However, the same claim can be made by most, if not all, NGOs, because their funding mechanism is based on fundraising from the public, unlike most, if not all, IGOs whose funding comes from governments.

Rightfully so, Evan quotes an example that involves the Red Cross: I seriously doubt that some scammer will ever use, for instance, the name of my former employer, the International Atomic Energy Agency (IAEA) for a scam – so why protect that and not, for instance, Médecins Sans Frontières (MSF).

Personally, I am against special preventive protection (some of you might remember that I was against the special protection also for the Red Cross and the IOC) but I might possibly be convinced to accept a compromise based on preventing scams in fundraising only in the case of a very specific list of organizations that includes qualifying IGOs (although I believe there are none who do fundraising via calls to the public) and also relevant NGOs. In other words, the barn is open since the decision of granting special rights to a couple of organizations, and now we need to deal with the consequences of that (to me wrong) decision.

I appreciate that Evan makes a similar distinction in his post that I am replying to, so we are not in complete disagreement, but unfortunately the proposal of the “small group” that is today on the table has no mention of NGOs, but only of IGOs, and that makes it completely unacceptable.

I believe that there will be a public discussion in Hyderabad on this matter next Monday.

Best regards,

Roberto

Da: at-large-bounces@atlarge-lists.icann.org [mailto:at-large-bounces@atlarge-lists.icann.org] Per conto di Evan Leibovitch Inviato: martedì 1 novembre 2016 17:31 A: ICANN ALAC list; ICANN At-Large list Oggetto: [At-Large] IGO names: is this worth war?

Hello everyone,

As the Hyderabad meeting gets underway, we have a potential for a conflict that, according to some, is a source of utter panic and a critical-enough battle that it is worth threatening ICANN's stability... and people still haven't yet fully recovered from the transition and the Ted Cruz scare.

I am speaking of the Governmental Advisory Commitee (GAC) wanting to reserve about 230 names and acronyms of inter-governmental organizations (IGOs), and its threat to pull out of ICANN entirely and take its issues to the ITU Standardization Assembly.

The whole story can be found in a post at DomainIncite that contains both profanity and apocalyptic tones.

At the threat of being an ICANN heretic (and it wouldn't be the first time), I'm on the side of the governments here.

[ Disclosure: I currently work at an agency that would be among the protected IGOs. However I have been involved in this issue, at the ICANN working group level, for many years, and my position is no different now than it was then. ]

While it is overkill to give a blanket ban on every IGO, I would rather give protection to a handful of organizations that don't need it, in return for protecting a number of organizations that would be critically impacted if their names were not protected. I am speaking specifically regarding organizations that do significant public fundraising in the public good -- the Red Cross (+ Red Crescent, etc), UNICEF, UNHCR, and others

I was involved when the issue first came up in 2011; there was a working group that was proposing to reserve names for the Red Cross and Olympics in all gTLDs. Most in the group were either all-for or all-against; I was split, opposing the Olympic reservations but strongly supporting reservations of any Red Cross related names or translations.

I still believe that the ICRC needs protection more than the IOC, but given the choice of protecting both or protecting neither I would absolutely come down on the side of "both". There most absolutely is a public interest in the reservation of names related to the Red Cross, United Nations and other IGOs, especially those that are engaged in public information or fundraising.

It matters far more to me that a scammer is prevented before-the-fact from registering "redcross-italy-earthquake.xyz" than that the domain industry is free to sell "UNDP.whatever" to a speculator. By the time a URS claim could be filed against the scammer and adjudicated, the damage is done and the scammer moves on.

IMO it is not in the interest of the At-Large community to support the unfettered entitlement of the domain industry to sell whatever it wants without consideration of consequences. It is in our interests to keep the public from being harmed through the actions of the DNS. And, on the balance, this means that reserving the names of IGOs serves the public interest.

The domain industry's main counter-argument is that it should be entitled to sell whatever it wants. It believes that that WHO, the acronym for the World Health Organization but also a dictionary word, should be fair game to be sold as a domain to an ageing rock band or anyone else.

But I am concerned that a scammer -- or others with bad intent -- could use the WHO.something domain to present themselves as the World Health Organization and either present misinformation or engage in scamming fundraising. In a public-health context such misuse could have horrible aftermath.The harm to the domain community by blocking WHO.everything is less, IMO, than the harm to the public from letting that go to the highest bidder. (Of course the WHO is always within its ability to permit who.something to point to the rock band, etc)

​If the counter is that ICANN's MSM process does not allow for this kind of accommodation -- that the GNSO demands for wide open domains do not provide for this kind of exception -- then the process is broken. It must be remembered that -- pre-transition or post- -- ICANN is not itself an IGO. Sovereign states are not treaty-bound to honor GNSO policy decrees, they do so through trust and goodwill. If that goodwill is damaged then, ICANN will pay a heavy and possibly irreversible price.

There are many good places to take a principled stand in support of the MSM and against dictatorial control of the DNS. But reserving IGO names is not one of those good places. As much as I abhor the reserving of the string "olympic", that speaks more to my personal belief in the corruption of the IOC than principled opposition to the concept.

If the ALAC is consulted on this issue -- or if it considers issuing advice on its own initiative -- I simply ask that it asserts the point of view of the public interest, which is not always in selling the maximum number of domains for the maximum obtainable price.

Thank you.

Evan Leibovitch

Toronto / Geneva

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That is exactly the position of GNSO - there are already protection mechanisms in place for intellectual property protection in the procedures. Somehow some IGO's just seem to want to be special.

Unless I've missed something, the TMCH et al are for trademarks. IGO names typically aren't trademarks. Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Please consider the environment before reading this e-mail. https://jl.ly

So... to industry, the domains of the Red Cross and its affiliates are merely a special form of trademark, just like Coca-Cola.

From a public interest PoV, I posit that they are vastly different. Coca-Cola does not have a business model of soliciting charitable donations, in every country, for distribution in other countries. It is not depended upon for relief activity or critical medical-related public information. It is not recognized by the Geneva Conventions as a foundation of global humanitarian activity. Similar things can be said about a number of other international agencies (ie, UNICEF, WFP etc), though maybe not quite at that level.

If ICANN's "community" wishes to maintain oblivion to the distinction between the ICRC and Coca-Cola, that is its right. But that should not stop those representing the public interest at ICANN -- governments and At-Large -- from asserting the distinction, and using whatever bylaw-allowed tools are at their disposal to encourage ICANN to balance industry needs with those of the non-domain-buying public. If the processes created by ICANN's compact of domain buyers and domain sellers -- the GNSO -- cannot accommodate that distinction, then the problem is in the process and not in the fact that a distinction exists. If the response is that there are indeed specific IGOs -- that face the public directly and who trade in international public trust -- that deserve protection but that not all IGOs do, that is a reasonable response and IMO a foundation for compromise. I would be happy to participate in a group that created objective distinction criteria and/or identified the IGOs worthy of global protection. I don't think that more than a dozen or so IGOs meet this public trust criteria, but those that do are indeed worthy of special treatment. But a blanket blow-off of the request to protect at least some IGOs is a recipe for a needless showdown. The result of such open hostility will simply validate, and indeed expand, negative public perception of ICANN and plant the seeds for more Ted Cruz-like attack (which will play right into the hands of the multllaterals). - Evan PS: I am surprised why nobody here has mentioned the "int" TLD, and suggested as a partial solution the use and widespread promotion of it as a natural and trusted home for IGOs. ICANN's support of such a promotional campaign would actually increase its own public trust for it would be seen to recognize and address a real problem of abuse.

On 3 November 2016 at 11:06, Johan Helsingius <julf@julf.com> wrote:

Not sure "there is a proper process for this, and we would really like ​ ​ you to participate in it rather than try to bypass it" qualifies as ​ ​ a blanket blow-off or open hostility.

​They fully participated in the process once, and it failed them. I was part of a WG a few years ago that was examining requests from the Olympics and Red Cross. After months and months and thousands of person hours​, the result was an impasse. No resolution, no appreciation of the nuance why some IGOs might warrant protection based on public trust (ICRC) but some might not (IOC). As a result, the lengthy process resulted in no protection for even the Red Cross, IMO a defeat for the public interst ... and, I imagine, no confidence among other IGOs of any better result if the same process (essentially unchanged since then) played out again today. IOW, once upon a time, they played the game exactly as requested ... and got blown off. So I understand the unwillingness to repeat on the same terms. ​- Evan​

Aware that I am not formally an ALAC member yet, I announce that I generally side with Evan's points on this issue. I wonder though if it's at all helpful to limit any future protection to IGO's that are truly "public" in the Public International Law sense (e.g. treaty based organizations or agencies of such organizations) and/or that carry out high public interest duties spelled out in treaties or conventions (Red Cross/Red Crescent), as opposed to entities such as the IOC, or FIFA for that matter, which might or might not enjoy a level of international personhood under International Law, and which might or might not carry out duties which are commendable and in the International and national public interest, but which in many ways can be described as corporate entities. Have these juridical distinctions been discussed before? Javier Rúa-Jovet +1-787-396-6511 twitter: @javrua skype: javier.rua1 https://www.linkedin.com/in/javrua

On Nov 3, 2016, at 7:19 AM, Vanda Scartezini <vanda@scartezini.org> wrote:

I am in favor to have such names of International, recognized by UN, but it needs to be quite clear – role, recognition of the work etc , or all NGO in the world would like to have similar privilege and this will be impossible. I would like to not have those well-known organization to be ignored, if we do not have a quite clear selection of which organization will be in this “privileged list”. Best, Vanda Scartezini Polo Consultores Associados Av. Paulista 1159, cj 1004 01311-200- Sao Paulo, SP, Brazil Land Line: +55 11 3266.6253 Mobile: + 55 11 98181.1464 Sorry for any typos. <image001.png>

From: <alac-bounces@atlarge-lists.icann.org> on behalf of Evan Leibovitch <evan@telly.org> Date: Thursday, November 3, 2016 at 3:20 PM To: "bzs@TheWorld.com" <bzs@theworld.com> Cc: "John R. Levine" <johnl@iecc.com>, 'ALAC List' <alac@atlarge-lists.icann.org>, 'At-Large Worldwide' <at-large@atlarge-lists.icann.org> Subject: Re: [ALAC] [At-Large] R: IGO names: is this worth war?

So... to industry, the domains of the Red Cross and its affiliates are merely a special form of trademark, just like Coca-Cola.

From a public interest PoV, I posit that they are vastly different. Coca-Cola does not have a business model of soliciting charitable donations, in every country, for distribution in other countries. It is not depended upon for relief activity or critical medical-related public information. It is not recognized by the Geneva Conventions as a foundation of global humanitarian activity. Similar things can be said about a number of other international agencies (ie, UNICEF, WFP etc), though maybe not quite at that level.

If ICANN's "community" wishes to maintain oblivion to the distinction between the ICRC and Coca-Cola, that is its right. But that should not stop those representing the public interest at ICANN -- governments and At-Large -- from asserting the distinction, and using whatever bylaw-allowed tools are at their disposal to encourage ICANN to balance industry needs with those of the non-domain-buying public. If the processes created by ICANN's compact of domain buyers and domain sellers -- the GNSO -- cannot accommodate that distinction, then the problem is in the process and not in the fact that a distinction exists.

If the response is that there are indeed specific IGOs -- that face the public directly and who trade in international public trust -- that deserve protection but that not all IGOs do, that is a reasonable response and IMO a foundation for compromise. I would be happy to participate in a group that created objective distinction criteria and/or identified the IGOs worthy of global protection. I don't think that more than a dozen or so IGOs meet this public trust criteria, but those that do are indeed worthy of special treatment.

But a blanket blow-off of the request to protect at least some IGOs is a recipe for a needless showdown. The result of such open hostility will simply validate, and indeed expand, negative public perception of ICANN and plant the seeds for more Ted Cruz-like attack (which will play right into the hands of the multllaterals).

- Evan

PS: I am surprised why nobody here has mentioned the "int" TLD, and suggested as a partial solution the use and widespread promotion of it as a natural and trusted home for IGOs. ICANN's support of such a promotional campaign would actually increase its own public trust for it would be seen to recognize and address a real problem of abuse. _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

On 4 November 2016 at 18:31, Johan Helsingius <julf@julf.com> wrote:

There ​ ​ is an official process for it in ICANN - the GNSO PDP.

​That is a signfiicant part of the problem. It is a process designed by the GNSO for the exclusive benefit if its own stakeholder groups, without consideration that ​other participants may need different modalities for decision-making. As such, this has a designed-in process in which there are two classes of participants -- the GNSO, and the invited guests who sit at the back of the room. The results of such PDPs must be ratified only by the GNSO, and at that stage the other parties have no voice. As I said, I have already participated in GNSO processes where the At-Large requests (which were deemed reasonable in the WG) were dispensed with at the time of ratification and there was nothing we could do about it. You may be very proud of the process, but it is utterly hostile to those outside the GNSO bubble. As such, don't be surprised if outsiders -- especially those who have already tried to work with it and found their viewpoints at best rejected and at worst belittled -- seek other paths. There has been significant and beneficial progress in the evolution of CCWGs. But until that becomes the default decision-making process, those outside the GNSO will always find the PDP structure unwelcome and of limited value. - Evan

On 5 November 2016 at 02:47, <bzs@theworld.com> wrote:

The problem in this discusssion is there is no meeting of the minds on what the problem really is.

​I argree fully. But the current process forces everything to fit into the GNSO's assumptions and worldview​. This forces outsider to either bend their message/request to fit with that worldview (in which case the resolution is also unsatisfactory) or dispense with the process altogether (which is at the core of the current "why won't _they_ participate in _our_ process" whinging). The current design of the PDP is inherently biased against participants that are not GNSO stakeholder groups. Until this is addressed I anticipate an increase in the number (and intensity) of disputes that can't be addressed by ICANN processes in a manner suitable to all parties. This will inevitably lead to more circumvention attempts, which threatens stability. - Evan

Evan,

But the current process forces everything to fit into the GNSO's assumptions and worldview​.

Of course it does - because that is why the GNSO exists in the first place. The GNSO is not some "power block" or lobbying organisation for the domain industry. The GNSO exists purely as *the* mechanism for formulating gTLD policy. And unlike the GAC or even ALAC, anyone can participate in the GNSO process, either through the many constituency groups (remember that the "domain industry" is only represented in two of the four constituent groups and seven constituencies), or even directly through the nomcom process.

This forces outsider to either bend their message/request to fit with that worldview

It forces the outsider to fit into the ICANN PDP process, yes. And that is what the GNSO position is all about - it is not whether the name of a particular organisation deserves protection or not, but whether the GAC/"small group" recommendation is compatible with existing PDP processes, and if not, how it can be resolved.

The current design of the PDP is inherently biased against participants that are not GNSO stakeholder groups.

What specific participants are, in your view, not catered for in the GNSO stakeholder group model? Julf

On November 3, 2016 at 10:50 evan@telly.org (Evan Leibovitch) wrote:

So... to industry, the domains of the Red Cross and its affiliates are merely a special form of trademark, just like Coca-Cola.

I only mentioned Coca-Cola to point out that at its base the issue of trademark protection is consumer protection whether you are buying a soft drink or donating to a charity. The mechanism used on the web are higher-level SSL certificates on web sites which, before being issued, verify they are being purchased by the organization being represented via business listing agencies and other documentation. Unfortunately they haven't been very effective because people don't tend to give much thought to, typically, a lack of certificate if they are directed to a non-SSL URL. And lower-level certificates w/o verification appear to be secure to the site visitor, they just don't get a green bar or whatever it is. I haven't seen any solution to that problem. "Education" feels like a futile hand wave.

From a public interest PoV, I posit that they are vastly different. Coca-Cola does not have a business model of soliciting charitable donations, in every country, for distribution in other countries. It is not depended upon for relief activity or critical medical-related public information. It is not recognized by the Geneva Conventions as a foundation of global humanitarian activity. Similar things can be said about a number of other international agencies (ie, UNICEF, WFP etc), though maybe not quite at that level.

If ICANN's "community" wishes to maintain oblivion to the distinction between the ICRC and Coca-Cola, that is its right. But that should not stop those representing the public interest at ICANN -- governments and At-Large -- from asserting the distinction, and using whatever bylaw-allowed tools are at their disposal to encourage ICANN to balance industry needs with those of the non-domain-buying public. If the processes created by ICANN's compact of domain buyers and domain sellers -- the GNSO -- cannot accommodate that distinction, then the problem is in the process and not in the fact that a distinction exists.

If the response is that there are indeed specific IGOs -- that face the public directly and who trade in international public trust -- that deserve protection but that not all IGOs do, that is a reasonable response and IMO a foundation for compromise. I would be happy to participate in a group that created objective distinction criteria and/or identified the IGOs worthy of global protection. I don't think that more than a dozen or so IGOs meet this public trust criteria, but those that do are indeed worthy of special treatment.

But a blanket blow-off of the request to protect at least some IGOs is a recipe for a needless showdown. The result of such open hostility will simply validate, and indeed expand, negative public perception of ICANN and plant the seeds for more Ted Cruz-like attack (which will play right into the hands of the multllaterals).

- Evan

PS: I am surprised why nobody here has mentioned the "int" TLD, and suggested as a partial solution the use and widespread promotion of it as a natural and trusted home for IGOs. ICANN's support of such a promotional campaign would actually increase its own public trust for it would be seen to recognize and address a real problem of abuse.

Blanket blow-off is a problem, of course they deserve better. But none of this seems to suggest a solution, only reasons to strive for some solution which in and of itself does have some value. I think using the .INT TLD could be helpful but misses the main point vis a vis WHO.BICYCLES etc. To my understanding of the problem it's not that IGOs et al want some identifiable domain, they want some way to stop fraudulent domains. HOWEVER, the higher-level SSL cert could suggest something of a partial solution: Register IGOs et al in the TMCH database with a new flag which says to register a domain in any nTLD using this registered string one must present a validated SSL certificate identifying the organization purchasing the string. For example suppose WHO passes on WHO.BICYCLES, but "WHO" is in the TMCH database. Another party comes along later and registers WHO.BICYCLES. Since "WHO" is flagged as I described in the TMCH databases the registrar must require a validated SSL certificate for that organization. There are some mechanical details (how does one get a validated certificate before registering?) which I believe could be worked out. Lack of such a validated certificate prevents the organization from registering WHO.BICYCLES. Presentation of a validated certificate at least provides some positive identification of who is now trying to register WHO.BICYCLES. And validated SSL certificates aren't easy to obtain by miscreants. However, all this still provides no protection for "confusingly similar" domains such as WHO-UN.BICYCLES if WHO-UN is not specifically registered in the TMCH database. In summary: All security amounts to avoidance, prevention, detection, recovery. 1. Can we avoid the problem beforehand? 2. Can we actually prevent the problem (stronger than "avoid"). 3. Can we effectively detect there has been a problem? 4. Finally if a problem occurs is there a reasonable recovery procedure in place? The certificate suggestion I offered falls into #1, #3, and #4. Avoidance: Makes it more difficult to register a confusingly similar string (e.g., if one can't qualify for a validated SSL certificate) Detection: Helps positively identify a suspected abuser. Recovery: Provides evidence to take down the offending domain and pursue remedies by identifying the abuser. I realize someone will likely jump in here referencing real or imagined flaws in validated SSL certificates procedures. That may be so, and they continue to be a work in progress, but they are a commonly available tool and have some merits in all this. -- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: +1 617-STD-WRLD | 800-THE-WRLD The World: Since 1989 | A Public Information Utility | *oo*

On 5 November 2016 at 01:14, Karl Auerbach <karl@cavebear.com> wrote:

For that purpose they need not come to ICANN for protection; they already have the tools they need - digital certificates from the established certificate authorities around the world.

​Funny, that doesn't appear to be sufficient for trademark holders.​ ​If it was simple as that we wouldn't need clearing houses and adjudication procedures whose resolution isn't done just by algorithm. Yet ICANN has seemed fit to bestow this myriad of non-technical protection measures to trademarks, but is satisfied to stop short of offering similar protection to non-commercial trustworthy names. So *this* is the place to draw the line and say "no more protections"? Good luck with that.

any consumer can walk up the certificate chain to check that they are chatting with the IGO itself and not a fake.

​This is the point at which I stopped reading.​ ​To expect Internet end-users -- especially newcomers -- to understand (let alone trace and discern legitimate certificates from fakes) Internet digital signatures is a recipe for utter failure. Unless and until that process is seamless globally, it is a wholly unsatisfactory solution. Maybe the answer is not completely within ICANN's remit but it absolutely within mandate to maintain trust in the DNS. So perhaps partnership with other bodies is in order, to strengthen and simplify the infrastructure and to engage in public education on self-defence. ICANN has traditionaly avoided such alliances, perhaps it is time to re-think. But really? It's up to Internet end-users to "walk up the certificate chain" else they deserve to be scammed? And trademark holders get preferential treatment over names created by international treaty? If that's the best ICANN can do in response to this kind of challenge, you might as well start prepping for another transition. - Evan

On November 4, 2016 at 19:08 karl@cavebear.com (Karl Auerbach) wrote:

Maybe the answer is not completely within ICANN's remit but it absolutely within mandate to maintain trust in the DNS.

IGO name protection is not a DNS issue; it ought to be far outside ICANN's scope.  To conclude otherwise is to make ICANN the protector of all names, for everyone who expresses a desire for protection - in other words the worldwide name cop.  That's would be a massive expansion of an already bloated scope.

Unfortunately that cat is out of the bag, the horse has left the barn, that ship has sailed, possibly off the ends of the earth. We have TMCH, special rights for ICRC and Olympics, URS, UDRP, geographic names, community names, etc. Now because a problem seems hard ICANN can wash their hands of it? I tend to agree with the principle that ICANN should never have ventured into this. I expressed this in strong terms to a couple of board members right after the San Francisco ICANN (2011) open meeting. Someone had gone to the microphone and gave a heartfelt speech about how .KIDS must be protected for the children etc. And a couple of board members at the dais responded that this was assuredly their intent (I assume transcripts are available.) I said I am going to buy the board a large unabridged dictionary and they can and should begin going through it entry by entry, all 470,000 or so words (source: Mirriam-Webster), indicating ICANN policy on each word. Because that's where this is going. And, now, has gone. Too late. We're here. One can't at this late date wave off GAC et al because all this was never a good idea. That reeks of disingenuousness at this point. -- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: +1 617-STD-WRLD | 800-THE-WRLD The World: Since 1989 | A Public Information Utility | *oo*

A possibly useful concept from of all things the old X11 graphics standards days was the oft-heard slogan: Mechanism, Not Policy! Ok, that's a blurred line. But it can be a useful construct to dissect potential solutions. What is mechanism? What is policy? Registering in TMCH and the results of that such as warnings about strings is largely mechanism. Of course all mechanism either implements or constrains -- "that's impossible to implement!" -- policy. But when one has a potentially large problem it's helpful to try to break it into useful parts. For example talk about certificates has been revolving around mechanism here, to a great extent. How do they work? How might they help? And policy is, well everyone here knows what policy means, it's the "why" part and what one is trying accomplish, mechanism is the "how". -- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: +1 617-STD-WRLD | 800-THE-WRLD The World: Since 1989 | A Public Information Utility | *oo*

On 11/4/16 10:05 PM, John R. Levine wrote:

...

For that purpose they need not come to ICANN for protection; they already have the tools they need - digital certificates from the established certificate authorities around the world.

This is an impressively disingenuous argument. I have a couple of dozen certificates on my web and mail servers, and they say no more than that the entity proffering the certificate is the same one that passed a trivial test to see that it controlled a domain name or web server. Disingenuous? Is that the new way to spell "clever". ;-)

With what I propose the IGO's can easily set up their own highly exclusive CA and make it clear that if the cert chain does not originate there then the name is bogus. Easy to do. And it requires no expansion of ICANN's role. Obviously the desire of some parties here is to regulate because, well, it is fun to be a regulator and tell people what to do and build ever expanding organizational org charts. It is far less fun back off, be "hands off", and let people and IGO's solve their own problems with the technical tools that internet innovation has provided. Barry S. raised a good question - Which is because ICANN's nose is already under the tent we may as well let the entire camel inside. My response is that we should push the nose back outside and get ICANN out of the role of regulating business practices and leave that to authorities that have better legislative and judicial credentials. --karl--

On 11/5/16 3:38 AM, John R. Levine wrote:

...

With what I propose the IGO's can easily set up their own highly exclusive CA and make it clear that if the cert chain does not originate there then the name is bogus. Easy to do. And it requires no expansion of ICANN's role.

And the locks from the wonderful CA will look just like the ones from Let's Encrypt, so it won't help users at all. So the answer that you propose is an ever-growing regulatory body that, like a coal mining machine, slowly consumes the landscape of language, leaving in its wake an internet ever more heavily regulated and taxed?

The proposal I have made requires none of that. Rather, it might require that IGO's collectively go to the browser makers (all three or four of 'em) and ask (or pay) 'em to add a bit of new code, or they go the easier route and publish a plugin, like the popular Calomel plugin. By-the-way, I am surprised that no one has bothered to mention an even easier approach - which is to require that IGO's who want protection do so by putting their names under a special TLD for international governmental bodies. Perhaps ICANN can give the ITU the .itu TLD and let them manage it to satisfy demands by international bodies. Again, a solution that requires no new structure or power in ICANN. As I began my original comment - many among us have tunnel vision that sees gluing yet another regulatory lump onto ICANN as the solution to every problem. --karl--

On November 5, 2016 at 10:35 johnl@iecc.com (John R. Levine) wrote:

Barry is wrong, IGO names are not trademarks because they're not used to identify goods or services used in commerce. But I think they do merit protection similar to that provided to trademarks. As others have noted, it's not surprising that the IGOs and their government sponsors are not eager for a rerun of the same process that blew them off last time. So since what they want is at worst harmless to the at-large users, just give it to them.

You're somewhat right, I was somewhat wrong. In the spirit of questioning all my own assumptions I did a little research and found for example a document from UNICEF: UNICEF Guidelines and Manual for Working with the Business Community dated 2001, a short, 4 page, pdf, I saved the pdf but not the link sorry, I could retrace: In it is the following text: 12. The UNICEF name, logo, and emblem are not trademarks. They are not registered as trademarks or protected under trademark laws. They are protected under a special international convention, the Paris Convention. The UNICEF name, logo and emblem may not be registered as trademarks by any UNICEF office or National Committee, and they should not be referred to as trademarks in any legal or other documents. A little more research reveals this letter to ICANN (specifically Rod Beckstrom, Heather Dryden, et al) dated 13-Dec-2011 (4 pages): https://www.icann.org/en/system/files/files/igo-counsels-to-beckstrom-et-al-... Which is all relevant but here is some specific text: The names and acronyms of IGOs are protected within the scope of Article 6ter of the Paris Convention for the Protection of Industrial Property (with 173 Contracting Parties), as further referred to in Article 16 of the Trademark Law Treaty and Article 2 of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights. We also note that the “GAC Principles Regarding New gTLDs” of ICANN’s Governmental Advisory Committee call on ICANN to make proper allowance for IGO protection in the domain name system. and this 13 page document whose date I don't see, more research: WIPO Briefing Note: The Second WIPO Internet Domain Name Process http://archive.icann.org/en/committees/JWGW2/WIPO2-note.pdf with the following interesting text (again, it's all relevent): The existing basis for protecting the names and acronyms of IGOs in international intellectual property law is summarized in paragraphs 128 to 137 of the WIPO II Report: 128. The existing international legal framework contains clearly expressed and widely accepted (through applicable constitutional processes) principles prohibiting the unauthorized commercial use, as trademarks, of the names and acronyms of IGOs. 129. Article 6ter of the Paris Convention for the Protection of Industrial Property (the Paris Convention), to which 162 States [now: 168 States] are party, provides, inter alia: ‘(1)(a) The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view. ‘(b) The provisions of subparagraph (a), above, shall apply equally to . . . abbreviations, and names, of international intergovernmental organizations of which one or more countries of the Union are members, with the exception of . . . abbreviations, and names, that are already the subject of international agreements in force, intended to ensure their protection.’ ... 131. The Paris Convention, (Article 6ter (1)(b)), accordingly prohibits the registration and use of, inter alia, the names or abbreviations of IGOs as trademarks or elements of trademarks. The Trademark Law Treaty of 1994 (Article 16) extends the same protection against registration and use with respect to service marks. There's more, better if you read it for yourselves. My barely educated take: The IGOs (et al) assert by international treaty a higher or alternate force -- than the usual common and legal use of the term "trademark" -- embedded in international law to protect their marks. So, we're dealing with a very different kettle of fish here and reference to one's understandings of "trademark" as used in other contexts is largely irrelevant in this case. Start all over again! -- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: +1 617-STD-WRLD | 800-THE-WRLD The World: Since 1989 | A Public Information Utility | *oo*

Evan,

The GNSO -- domain buyers and sellers divorced from the realities of the rest of the world

I really don't know why you keep repeating that mantra. You know just as well as I that the GNSO is not just "domain buyers and sellers". The non-contracted parties house, half of GNSO, consists of people who *don't* represent domain business.

​As Barry noted, ICANN was alerted about the IGO issue in 2011.​ The current outrage at bypassing process conveniently forgets that once upon a time they tried to play the game by the usual rules and were blown off. So the conventional process failed.

Yes, the conventional process failed, but we seem to disagree about the reasons for that failure. I seem to remember that the GNSO NPOC constituency was specifically created for the IGO's, but they lost interest as soon as they discovered that it was easier to ask the GAC and the ICANN board to help them instead. Julf

On 06-11-16 20:57, Evan Leibovitch wrote:

There is no other house representing those who are neither buyers nor sellers yet are still affected by the DNS ... like law enforcement and IGOs and consumer groups and aboriginal name holders and victims of domain abuse.

Well, apart from the commercial and business user constituency, the intellectual property interests constituency, and most of the non- commercial stakeholders group.

Whether you agree or not, the ICANN bylaws are quite clear in specifying the community home of non-domain-owning end-users: It's At-Large community

And why wouldn't I agree with that?

conveniently and deliberately kept outside the GNSO.

That's the part I disagree with.

Governments are likewise kept to the side as advisors.

Can you, with a straight face, claim GAC is kept to the side? We do have to remember that the "A" in both GAC and ALAC stands for "Advice". That advice is always noted and processed, but advice is not mandatory. Often the advice leads to pointing out that the advice is contrary to existing policy and processes, and that usually comes with a recommendation to start a consensus policy process to accommodate the situation - and that is exactly what we expect in the IGO situation as well.

If you're neither domain buyer nor seller -- that is, most of the world -- you have no representation on GNSO. ​Feel free to disagree, but that is the functional (and bylaw-defined) reality.

I feel free to point out that I am a voting member of the GNSO Council that incidentally happens, because of historical reasons, to own julf.com (oh, and penet.fi too), but apart from that my only association with domains was running the .fi ccTLD back more than 20 years ago...

​And why was it easier? Because the rest of the GNSO wouldn't take their requests seriously.​

You don't always get what you want. It doesn't automatically imply that the system is rigged.

​This is why the complaints of "why didn't they use our process?"​ are so laughable. Their attempts to work within the system are well documented, as was their treatment by the rest of the "community".

I would love pointers to that documentation. Julf

On November 5, 2016 at 21:19 evan@telly.org (Evan Leibovitch) wrote:

​As Barry noted, ICANN was alerted about the IGO issue in 2011.​ The current outrage at bypassing process conveniently forgets that once upon a time they tried to play the game by the usual rules and were blown off. So the conventional process failed.

That was only incidental to what I found in my research. What gave me pause was realizing how much the GAC vis a vis IGO name protection and everyone else seemed to be talking past each other. Trying to swim upstream against an international treaty signed by 173 countries seems, well, quixotic. And perhaps not even justified no matter what one's personal feelings are on the issue. At some point one has to consider yielding to the facts, or at least dealing with the facts.

Start all over again!

​Not necessarily. As I have repeatedly mentioned, the concept of the Cross-Community Working Group is a great step ​in the right direction as it brings in other ​concerned ​ groups as equal, not subservient, to the GNSO's. It ap p​ ears to have worked well for the ​IANA ​ transition. Eventually the PDP must evolve towards a CCWG-like structure if ​more​  IGO -t​ ype of conflict is to be avoided going forward. ​​

I t is too late to use this to claw back some of ICANN's most critical core mistakes (such as the choice to get involved in name protection at all). But going forward, expanding decision-making beyond the domain buyer-seller compact is critical going forward.

I tend to agree with this last point though how to do that doesn't leap out. -- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: +1 617-STD-WRLD | 800-THE-WRLD The World: Since 1989 | A Public Information Utility | *oo*

On November 2, 2016 at 20:05 julf@julf.com (Johan Helsingius) wrote:

Barry,

...

When you analyze this it's anyone with a recognizable mark. This is really just a special case of intellectual property protection.

That is exactly the position of GNSO - there are already protection mechanisms in place for intellectual property protection in the procedures. Somehow some IGO's just seem to want to be special.

The devil as always is in the details. My sense is that in principle everyone wants to do the right thing but what exactly that right thing is remains unclear. A success would be formulating some overarching resolution which will be useful in the no doubt many other cases which will come forward. -- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: +1 617-STD-WRLD | 800-THE-WRLD The World: Since 1989 | A Public Information Utility | *oo*