New subject: Actions/Discussion Notes: Work Track 3 SubTeam Meeting 02 May

May 2, 2017

      Dear Sub Team Members,

Please see below the action items and discussion notes captured by staff from the meeting on 02 May. These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the recording.  Please also see the recording on the meetings page at: https://community.icann.org/display/NGSPP/Work+Track+3+Meetings.  

In addition, the referenced slides are attached along with excerpts from the chat room are included below for ease of reference.

 Best regards,

Julie

Julie Hedlund, Policy Director

Action Items/Discussion Notes 02 May

1. Status Update from Plenary Chair -- Avri Doria:

-- Over the last couple of plenary meetings we have been working on the WG comment to the CCT-RT.  Did another read-through at the WG meeting today.  Some wordsmithing.  Get completed by 10 May.

-- Gave a reminder get involved with the Drafting Teams on CC1 issues that we need to close on.

-- CC2 is out there and we hope you are responding.

-- No meetings next week because of GDD Summit.

2. Applicant Freedom of Expression Rights in New GTLD Program:

Background (slide 2)

Principle G: Applicant Freedom of Expression Rights in New GTLD Program

Recommendation 3: Rec. #3: must not infringe rights of others including free expression.

Approved by both the GNSO Council and the Board.

International Law -- ICCPR & UDHR (slide 3)

-- Worth noting that these were things that the CCWG Human Rights Work Stream 2 dealt with in great detail for many weeks.

-- Some of these are just declarations, they aren't treaties.

-- The GNSO Council policy is what governs, as also approved by the Board.

GAC Advice (slide 4)

2013 GAC Advice (slide 5)

2013 GAC issues Advice against strings considered “sensitive”, “problematic”, and “regulated markets”
...
From the chat:
Anne Aikman-Scalese (IPC): COMMENT: Under new ByLaws, it takes a 2/3 vote of the Board to overcome GAC Consensus Advice.  COMMENT

2014 ICANN Board Response -- Final New gTLD Policy (slide 6) 

Board Response & Treatment in Final ICANN Policy

-- Feb. 2014 -- ICANN Board NGPC adopted implementation framework for treatment of "Category 1" strings.

-- Strings in regulated markets or that potentially violate national law or raise sensitivities.

"Category 2" Strings: "Generics" (slide 7)

-- May not impose eligibility criteria for registering names in the TLD -- no exclusivity in registration of a word considered "generic".

-- This is looking at "generic" strings from a freedom of expression angle.
...
From the chat:
Paul McGrady 2: We are currently discussing generic strings in the Legal WT of this PDP.  Work Track 2.

Questions for Discussion (slide 8)

Discussion Questions

-- Are applicants’ freedom of expression rights adequately protected in GTLD program?

-- Should applicants’ use of words considered sensitive, problematic, or generic be exempt from freedom of expression rights?

-- How do ICANN bylaws require handling of competing policy preferences between GAC and GNSO on GTLD policy?

Discussion:

-- CCWG Work Stream 2 -- Human Rights/freedom of expression.  Seems that this group would be in a good position to observe the comments on the framework of interpretation on human rights because of the way the new core value works.  Current developments -- framework deals pretty directly with this topic.

-- Don't want to duplicate each other.  Need to work with them.

-- The WG has to consider the statements from the GAC and the ALAC and the expectations people have.  The CCT-RT is also doing a lot of work.  The drafts says that it appears that users are starting to presume some things because of the name (bank, insurance, etc.).  Not sure we can develop a definitive answer until the CCT-RT publishes its final report.

-- Don't think is a mechanism for cross-community groups to do away with GNSO policy that has been approved by the Council and the Board.  Don't think there is a mechanism in the Bylaws for that.  Could even be in violation of Annex A of the Bylaws.

-- The work of the CCWG Subgroup on Human Rights was rather limited -- just to develop a framework.  Don't think there will be anything that will be a game changer here.  Could look again at what the human rights Bylaw says, but that is a larger question.

-- One of the things is that we don't have to wait for the human rights framework, but it does have value in the new gTLD process -- looking at the impact of policy decisions.  The framework frames how those can come in and go.  Could be a useful tool.  When we ask what is the human rights impact on what we are doing, such as freedom of expression?

-- With respect to WS2 work that will go to the GNSO as a chartering organization.  There is no one human right that absolutely takes precedent over another human right -- a balancing, which is in the draft framework.  There are author's rights and property rights in the declaration.  WG needs to take into account the principles in the human rights framework.

-- We will need to look at this in the overall context including the Bylaws, which is one of several core values.

-- Clarify that the framework of interpretation does not mandate a human rights impact assessment.  It is something SOs and ACs can consider in their processes.

-- It is up to the GNSO to determine if and when its PDP should include a human rights impact assessment as a mandate.   Could be included in a PDP charter.
...
From the chat:
Cheryl Langdon-Orr (CLO): let's make sure we interact

Alan Greenberg: But we are bound to consider the work and conclusions of the cct-rt.

Alan Greenberg: The entire issue of "core values" is that they compete with each other and one does not necessarily and uniformaly trump another.

avri doria: and this PDP WG is one of the place where policy is done.

Anne Aikman-Scalese (IPC): @Alan - I agree we also need to consider recommendations of CCT-RT.  Anne

Category 1 and 2 Strings Impact on Freedom of Expression

-- Words that are considered "sensitive", "problematic", or "generic" -- should these be exempt from freedom of expression rights?

-- Is legitimate speech being chilled by ICANN policy on Category 1 and 2 string?

Discussion:

-- These terms are not in the GNSO policy as adopted by the Board.  This was a midstream modification of the policy from GAC advice.  North American bias: There are only a handful of things you can't say in public.  Category of words because they are sensitive to governments are no longer allowed to be used.  Here from people who don't have the North American bias.

-- The US is not all of North American.  There are things you can say in Canada and I suspect Mexico is different.

-- Trying to define freedom of expression -- that is a big challenge as it is defined differently in different countries.

-- There is a big difference between what the GAC comments re: generic strings versus problematic strings.  Was there a general GAC concern about generic words?

-- The generic string comes under Category 2 -- from the GAC having a Communique in Beijing where they said they wanted strings with generic meanings had to be registered with a public interest goal. It was about exclusive registration for words considered generic.

-- The GAC's observations regarding generic TLDs support principles of freedom of expression than restricting them.

-- Doesn't allow people to express themselves in the way they want to if they are requiring non-exclusive registration.

-- Related also to community registrations -- could be a similar principle.  Question: None of the human rights are absolute so what limits are appropriate under gTLD policy.

-- Concerned -- as important as the freedom of expression is -- concerned that we may be looking at things through a freedom of expression lense things that aren't a freedom of expression restriction/concern.  No one wants to be anti-freedom of expression.

-- Be careful about overusing freedom of expression and look at what type of expression is being hampered, and how does this interact with other criteria and goals of the new gTLD program.

-- This is one of many different interests that we are discussing this time.

-- Freedom of expression is one of our core issues, but it's not the only one and it will have to be balanced.
...
From the chat:
Paul McGrady 2: @Robin - how about the public interest goal of freedom of expression in generic term TLDs by their operators?

Cheryl Langdon-Orr (CLO): I suspect so Greg, and from my POV this is shaky area to try and navigate 

Greg Shatan: So we have another balancing act.

Greg Shatan: Agree that we should discuss the issue.  Don't want to take away anyone's freedom to express themselves.

avri doria: i kind of thought that PDPs in general were all gigantic balancing acts.

Actions/Discussion Notes: Work Track 3 SubTeam Meeting 02 May

Julie Hedlund

Aikman-Scalese, Anne

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