All,

I know there have been a lot of e-mails on this subject in the last week or so.  I wanted to give you some perspectives that we discussed at the leadership level to see if we can find some common themes and then we can see if any language in our report needs to change (which I am not convinced there will need to be substantial changes).  This is my (Jeff Neuman) summary to move the discussion along.

So, here is where I think we are on principles:

1. Existing PICs used as PICs in New Registry Agreements:  We believe that the existing PICs – worded substantially the same as they were in 2012 – are ok under ICANN’s Bylaws as they are specifically “grandfathered” in.

2. Domain Name Eligibility Rules:  We all seem to be on the same page that eligibility rules for the registration/renewal (but not necessarily usage) can be included in PICs/RVCs under ICANN Bylaws.

3. Voluntary Registry Commitments:

1. Commitments made by Registries without ICANN Enforcement

i. Registries and Registrars have reserved their rights to take down domain names for phishing, pharming, malware, and other forms of domain name abuse.  With respect to Registries, some have built these directly in as PICs while others have just built this into their Registry-Registrar Agreements (and some do both).  These types of PICs / RVCs do not seem to present any issue under the ICANN Bylaws (in our view). 

ii. We also believe that it is fairly common for registries to have policies that allow them to take down any domains used in connection with illegal activity, child exploitation, fraud, the sale of illegal pharmaceuticals, etc.  

iii. Because these do not require ICANN enforcement, we see no reason how or why this would present an ICANN Bylaw issues.  Conversely, we see no reason why we (through a PDP) would have any ability to restrict the ability of a registry to impose these types of commitments on their registrants (through registrars or directly).  So while we appreciate Kathy’s concern about a Registry’s ability to take down domain names, we do not believe that we are in a position to either require registries to take down names based on content or to prohibit them from doing so either.  Both could be considered forms of regulation (imposing rules on what a registry has to do or what it may not do).

iv. Real Example Today.  .gay.  The Registry Operator for .gay (Top Level Design) want to have a safe space for the LGBTQ community.  That community, as most of you know, has historically been the subject of hate speech, violence, bullying, etc.  Having a safe space for the gay community according to the registry is its differentiator and is absolutely necessary.  It has an incredibly strict Rights Protections Policy (https://www.ohhey.gay/gay-cares) that prevents Registrants from (i) inciting or promoting violence against others, (ii) Bullying, engaging in cyber bullying or inciting others to bully, (iii) Harassing, or encouraging others to harass or harm others, (iv) Stalking, (v) Abusive intent to cause fear or threaten violence, (vi) Hate Speech, (vii) Or activity intended to organize, coordinate, or otherwise enable one of the above.  It also reserves the right to take down any sites that do any of the above at its sole discretion.  

2. Commitments made by Registries that may require ICANN Enforcement in some capacity

Some Registries will want to make voluntary commitments in response to public comments, Government early warnings, objections, GAC Advice, etc. We do not see an issue with having these commitments reflected in Registry Agreements even if they fall outside of ICANN’s core mission IF in the case where the commitment does not fall within ICANN’s mission, neither ICANN itself nor any third party under ICANN’s control is involved in the decision as to whether the commitment itself has been violated.  Where an independent third party finds a violation of the commitment, ICANN should be able to rely on that third party decision and enforce a pre-arranged contractual remedy, which could include sanctions and/or termination of the Registry Agreement.

Examples / Use Cases:

1. If an Applicant applies for the TLD “.dictionarywordthatisalsobrandx” and Brand X objects to the application.  Applicant agrees with Brand X that it will not use the TLD in an infringing manner to Brand X.   In exchange for that Agreement, Brand X agrees to drop its Objection IF the Applicant agrees to put this commitment into its Registry Agreement in the form of an RVC.
1. As a PDP Working Group we have often said that it is our preference for disputes, objections, etc. to be worked out between the parties where this is possible.  This is in line with our desire to see future expansion of the TLD space and encourage innovation and competition.
2. As a result, this type of private resolution should be encouraged.
3. The question, however, is whether ICANN could enforce this commitment. 
4. After our discussions with the ICANN Board liaisons and the comments we received by the community, the real concern was that ICANN did not believe it could be put in a decision to make these types of decisions (namely in this case whether Applicant’s use of the TLD violates its commitment to Brand X).
5. If the Applicant and Brand X agree that any disputes involving their “settlement” are resolved by an independent third party (not ICANN) and the costs are borne by the parties (as opposed to ICANN), this should not present a problem.
6. If ICANN implements the decision by the independent third party (which the Applicant agreed in its Registry Agreement to allow ICANN to do), this too should not present a Bylaws issue.
7. The key point here is that ICANN itself is not imposing the restrictions on the Applicant and therefore should not be violating its own Bylaws.

2. What if an Applicant applies for .ideaexchange?  The Applicant wants to run the TLD as a place where registrants can put their open source ideas on the Internet and allow others to use their ideas in connection with whatever they want.  Comments are filed by businesses, governments, intellectual property owners and others concerned that this will be a space where users will exchange intellectual property that they do not own.  Lets also assume that the Independent Objector files an objection as well.  Assume Applicant never intended that and agrees that it will have a policy whereby Registrants agree that they will not use the TLD to distribute any intellectual property that is not owned by them.  And the Applicant also reserves the right to take down any names that use the TLD in violation of this policy.  To resolve the comments filed by governments, businesses, etc., the Applicant voluntarily agrees to have an RVC that states this policy and the takedown processes.  Each of the commenters and the Independent Objector agree that this would settle the matter and if documented in the Registry Agreement, they would drop their challenges.
1. We believe that having these comments resolved in an amicable manner should be encouraged.
2. Because this new policy has to be documented somewhere, the only real place it can be documented is as an RVC in the Registry Agreement.
3. ICANN should not be the arbiter of whether there is a violation of this policy. This would certainly arguably be beyond its mission.
4. However, if the arbiter of any disputes is an independent third party, not paid by ICANN, etc., then this would seemingly be ok even if it is agreed by the Applicant to follow the third party decision and to allow ICANN to impose the appropriate remedy.

Bottom Line:  I believe that so long as ICANN is not the ultimate decision maker in whether a policy that may arguably be outside of its mission, there should be no issues with having new PICs and/or Registry Voluntary Commitments.  If this indeed is the case, then we would just need to add a recommendation that (a) independent third parties must be used to resolved any potential violations of the PICs / RVCs, and (b) Applicants would need to agree in a Registry Agreement to be bound by the decision of the third party and to allow ICANN to impose sanctions / penalties. 

Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com http://jjnsolutions.com