P.P.S. And before we start creating extra-judicial procedures, creating some "worthy" groups who are "above the law", rather than simply pointing folks to the existing laws, consider this important scene in the play (and film) "A Man For All Seasons": https://www.youtube.com/watch?v=NUqytjlHNIM Alice More: "Arrest him!" Sir Thomas More: "For what?" Alice More: "He's dangerous!" Margaret More: "Father, that man's bad!" Sir Thomas More: "There's no law against that." William Roper: "There is: God's law!" Sir Thomas More: "Then God can arrest him." Alice More: "While you talk, he's gone." Sir Thomas More: "And go he should, if he were the Devil himself, until he broke the law!" William Roper: "So, now you'd give the Devil the benefit of law!" Sir Thomas More: "Yes! What would you do? Cut a great road through the law to get after the Devil?" William Roper: "Yes! I'd cut down every law in England to do that!" Sir Thomas More: "Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast -- man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake." IGOs are like William Roper, proposing that we endorse the approach to "cut a great road through the law to get after the Devil." We should be pushing back against that, for the reasons above. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Oct 7, 2016 at 9:27 AM, George Kirikos <icann@leap.com> wrote:

P.S. One of the obvious ways to go after fraudulent donation sites is also to use WHOIS accuracy complaints -- most (if not all?) fraudulent donation sites are not using true WHOIS, otherwise law enforcement would have a "slam dunk" case and simply show up at their door to arrest them! These domain names would also be relatively new (i.e. age under 2 weeks).

If we're designing " special rules" for these edge cases (i.e. under 0.1% of all domain names registered) [albeit, the law is perfectly capable of handling these edge cases already], there should be a clear safe harbour for the 99.9%. i.e. if one has true WHOIS or if the domain name is older than 2 weeks, one should never be subject to these proposed extra-judicial procedures. Except, the IGOs never say that --- they instead propose procedures that would apply to 100% of domain name registrants, not creating any demarcation or safe harbour. This allows for an ever-expanding definition of "abuse" and ever-expanding use of an extra-judicial procedure which (at one time) was supposed to be limited to certain exception "edge cases".

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Fri, Oct 7, 2016 at 8:43 AM, George Kirikos <icann@leap.com> wrote:

...

Personally, I don't see much merit to their proposals. They provide little justification, beyond a "wish list", unlike our own work which has been in-depth and has gone on for 2 years. Instead of participating in the actual PDP, it seems they seek to undermine our hard work by putting forth a parallel report outside of the established process. They try to use the language of a PDP (i.e. that they've reached a "consensus") to try to establish some legitimacy, despite it being a closed opaque process from an unrepresentative minority of the ICANN community (i.e. just representing the views of some IGOs, some GAC members and some ICANN Board members). All of our discussions were held in public, in contrast, and they were invited numerous times to participate.

Paul Tattersfield mentioned the existing URS in a comment -- court appeals are possible under the URS (the IGOs don't want that in their proposed process, though).

Shockingly, the proposal doesn't even restrict the acronyms (2 per IGO) to those that exist in the Article 6ter database! ie. it completely ignored our hard work on this topic.

In their "background", on page 2, their justification for special rules is that "IGOs perform important global missions with public funds". This type of reasoning is a slippery slope, and could apply equally to many other "worthy" organizations....so, where does it stop, if a precedent is created here? Laws exist for these situations, and we should not be creating new law, but instead be reflecting existing law. Once we start creating "worthy" institutions by elevating them above the law, implicitly we are creating the "unworthy", or perhaps the "politically unconnected" or "deplorables" whose rights get trampled upon in order to appease the "worthy." In contrast, the law treats everyone equally, both "worthy" and "unworthy", based on legal standards.

The "Eligible IGOs" from the "GAC List of IGOs" (point 3 on page 2) would not be limited in number --- it could grow in the future, and indeed there'd be incentives for it to grow, as any IGOs not on the list would want to be on it.

They seek to recreate the TMCH via a new process, whereas it would be trivial to simply allow Article 6ter marks to be on it, without a new process. This goes back to my earlier point, that they appear to want to add acronyms for "protection" that do not appear in the Article 6ter database currently.

Their DRP would eliminate recourse to national courts.

There are far better mechanisms to go after fraudulent solicitation of funds following a disaster --- e.g. going after the webhosting operator, DNS provider, and most importantly, the payment processors (Visa, Mastercard, American Express, PayPal, etc.). They can act instantly, compared to any "rapid relief" mechanism. Indeed, any such schemes are clearly ILLEGAL --- why is it that IGOs don't simply go to the legal authorities (police, etc.) to solve those criminal acts? We don't need to create new institutions -- these institutions have developed since the dawn of civilization. Indeed, they can go to the courts, too, to get injunctions, etc., working within the legal system.

If ICE can take down a torrent page due to copyright infringement, e.g.

https://static01.nyt.com/images/2010/11/27/business/Torrent/Torrent-jumbo.jp... http://www.nytimes.com/2010/11/27/technology/27torrent.html?_r=0

which went through the court system via appropriate warrants, why are IGOs not pursuing the same measures?? While they use an example that is clearly illegal, they don't recognize that legal mechanisms exist in those situations -- they propose to use solutions outside the legal system (i.e. ones we create for them). We should instead be pointing them to the existing legal system.

I find it amusing that the "penalty" for 3 reverse domain name hijackings is a mere 1 year in the penalty booth. It's actually a big "tell" that they even included this section on page 4, since up to that point they portrayed IGOs as "angels", whose needs are "special" and above those of other entities. That's an acknowledgement that this proposed process CAN be abused, that IGOs are operated by human beings who make mistakes, and are just like everyone else. That's why there are LAWS, to protect the weak and vulnerable against the strong -- the IGOs seek to put themselves above those laws, and strip away the protection of due process and the courts for domain name registrants. It's time to recognize that abuse can come not just from domain name registrants, but from the complainant/accuser, and that our laws presume innocence until proven guilty in a court of law. Due process exists for a reason.

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/

On Thu, Oct 6, 2016 at 5:10 PM, Mary Wong <mary.wong@icann.org> wrote:

...

Dear WG members,

As mentioned on the WG call earlier today, the Board’s reply to the GNSO Council enclosing the final “small group” proposal on IGO acronyms has just been sent. A copy is enclosed for your review and further discussion.

Staff will work with Petter and Phil to confirm the agendas for our next two meetings before ICANN57, in light of our receipt of this proposal and the status of the WG’s ongoing discussions over preliminary recommendations.

Cheers

Mary

From: <owner-council@gnso.icann.org> on behalf of Mary Wong <mary.wong@icann.org> Date: Thursday, October 6, 2016 at 17:02 To: GNSO Council List <council@gnso.icann.org> Cc: Steve Crocker <steve.crocker@board.icann.org>, Chris Disspain <chris@disspain.uk>, "bruce.tonkin@melbourneit.com.au" <bruce.tonkin@melbourneit.com.au>, Markus Kummer <markus.kummer@board.icann.org>, Becky Burr <Becky.Burr@neustar.biz>, "board-ops-team@icann.org" <board-ops-team@icann.org> Subject: [council] Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group"

Dear Councilors,

Please find attached the ICANN Board’s reply to the GNSO Council’s letter of 31 May 2016 on the topic of protections for IGOs and the Red Cross. The letter also includes the final proposal on IGO acronyms protection that was worked on by the IGO “small group” of IGO, Board and GAC representatives, facilitated by ICANN staff as appropriate.

We will also transmit a copy of this to the co-chairs of the GNSO IGO-INGO Curative Rights Protections PDP Working Group and the GAC.

Best regards,

Mary

Mary Wong

Senior Policy Director

Internet Corporation for Assigned Names and Numbers (ICANN)

Email: mary.wong@icann.org

Telephone: +1-603-5744889

_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

My last post of the day (I promise). I think it's also important to note who exactly thinks that they are "above the law". One of those IGOs is WIPO, and I would encourage everyone to read about their DNA scandal at: https://www.techdirt.com/articles/20140709/11070027824/report-that-wipo-lawy... and in particular the accompanying PDF -- embedded in the article, but also at: https://www.documentcloud.org/documents/1213703-wipo-report-james-pooley.htm... for easy downloading. There are many interesting statements/claims, but I found it very interesting, and relevant to our work, that WIPO: 1. apparently believes that the Universal Declaration of Human Rights doesn't apply to itself (para 27) 2. has interesting standards of what constitutes "evidence" (see paras 29-37). This is especially important, given that the IGO small group talks about an extra-judicial procedure where the standard of proof is always open to interpretation. When looking at their own behaviour, they argue that certain matters/claims are not "substantiated", yet they put forth a standard for others where the proof must be "clear-cut" or with "no material open questions of fact" or "obvious risk".... 3. waived immunity (see paragraph 12). 4. works with legal authorities (e.g. para 10, when DNA evidence was taken to Swiss police) or threatens legal proceedings when attempting to intimidate bloggers: https://www.techdirt.com/articles/20140428/06585327048/shameful-wipo-threate... "In addition, I should like to remind you that under Swiss law, the publication of such false and defamatory material could constitute a criminal offence." ... Please be informed that if this request is not immediately acceded to, the Director General and WIPO will seek independent legal advise to bring defamation proceedings against you in any competent jurisdiction. " WIPO and other IGOs assert to our PDP that they worry about immunity, yet are quick to threaten use of the courts by themselves "in any competent jurisdiction." I would like to hear from the IGOs about this inconsistency, and what's stopping them from using the courts/laws/police for alleged trademark abuse, impersonation, fraud, etc. instead of alleged defamation or to investigate DNA? Let's suppose that instead of that material being published on techdirt.com, it was instead published on WIPODNASCANDAL.COM or WIPO.SUCKS (unregistered as of today). Is that the kind of domain that would be subject to their proposed procedures, if their intimidation tactics were unsuccessful? Sincerely, George Kirikos 416-588-0269 http://www.leap.com/