Wendy and all, I largely agree with your observations and conclusions in your statements below. I would add that I have problems with #5 in addition to 2 and 6. I also agree that this process is not going to get us where we need/should be in regards to gold's. As I recall, we had many of these discussions and debates in 2000 and again in 2003 and 2004, if you recall Wendy. Obviously the safety and security issues regarding gTLD's are of the most important to users. These would include the ability of registries or proposed registries being able to provide for safety and security as it effects users and to a lessor extent, future registrants in these new gTLD name spaces. Right now, we obviously have serious security problems with existing gTLD name spaces and they are seemingly worsening, not improving. It also strikes me as more than odd how the GNSO council can make any recommendations regarding the introduction of gTLD's when they themselves have little or no experience in running any sort of registry that I am aware of. -----Original Message-----

From: Wendy Seltzer <wendy@seltzer.com> Sent: Apr 14, 2008 4:40 PM To: NA Discuss <na-discuss@atlarge-lists.icann.org> Subject: [NA-Discuss] New gTLDs

Hi NARALO,

I promised you a brief recap of the new gTLD process and my commentary. I support new gTLDs, but don't think this process is getting us there.

*The links:* ICANN's New gTLDs page: <http://icann.org/topics/new-gtld-program.htm> Recent update email from Denise to GNSO: <http://gnso.icann.org/mailing-lists/archives/council/msg04898.html>

GNSO's final report: <http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm> Summary for LA: <http://losangeles2007.icann.org/files/losangeles/gnso-newgtlds-workshop-29oc...>

The allegedly "simplified" process chart: <http://gnso.icann.org/correspondence/gtld-process-simplified-10apr08.pdf>

If you can read only one document, read the GNSO's 19 recommendations, below (from the final report). These are the recommendations for which the staff is currently working to determine implementability, and which the Board will be asked to approve if they are deemed implementable.

Speaking personally, I object to criteria 3, 6, and 20, and further have concerns about 2 if it is not defined precisely. My overarching concern about all of these is that they are indeterminate, and thus tend to bulk up the evaluation process and invite gaming in opposition. I have yet to be convinced that this "thick" approach offers benefits over a simple string-matching comparison.

...

3. Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law. A string, as such, cannot infringe rights, only its misuse. While there may be legal remedies against the misuse of a string, such as defamation or trademark infringement, in U.S. law, there are no "generally accepted legal principles" giving rights in strings as such.

...

6. Strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law. There are few "generally accepted legal norms relating to morality and public order" but plenty of people who will come forward purporting to speak for them. Strings don't violate norms, either. This will be a recipe for censorship.

...

20. An application will be rejected if an expert panel determines that there is substantial opposition to it from a significant portion of the community to which the string may be explicitly or implicitly targeted. What on earth is "implicit targeting"? What opponent/competitor can't dream up an astroturf organization that feels implicitly targeted by the target TLD string?

I've said many of these in greater detail elsewhere. --Wendy

GNSO RECOMMENDATIONS <http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm#_Toc43...>

1 ICANN must implement a process that allows the introduction of new top-level domains. The evaluation and selection procedure for new gTLD registries should respect the principles of fairness, transparency and non-discrimination. All applicants for a new gTLD registry should therefore be evaluated against transparent and predictable criteria, fully available to the applicants prior to the initiation of the process. Normally, therefore, no subsequent additional selection criteria should be used in the selection process.

2 Strings must not be confusingly similar to an existing top-level domain or a Reserved Name.

3 Strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law.

Examples of these legal rights that are internationally recognized include, but are not limited to, rights defined in the Paris Convention for the Protection of Industry Property (in particular trademark rights), the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) (in particular freedom of expression rights).

4 Strings must not cause any technical instability.

5 Strings must not be a Reserved Word.

6* Strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.

Examples of such principles of law include, but are not limited to, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination, intellectual property treaties administered by the World Intellectual Property Organisation (WIPO) and the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).

7 Applicants must be able to demonstrate their technical capability to run a registry operation for the purpose that the applicant sets out.

8 Applicants must be able to demonstrate their financial and organisational operational capability.

9 There must be a clear and pre-published application process using objective and measurable criteria.

10 There must be a base contract provided to applicants at the beginning of the application process.

11[skipped]

12 Dispute resolution and challenge processes must be established prior to the start of the process.

13 Applications must initially be assessed in rounds until the scale of demand is clear.

14 The initial registry agreement term must be of a commercially reasonable length.

15 There must be renewal expectancy.

16 Registries must apply existing Consensus Policies and adopt new Consensus Policies as they are approved.

17 A clear compliance and sanctions process must be set out in the base contract which could lead to contract termination.

18 If an applicant offers an IDN service, then ICANN's IDN guidelines[28] must be followed.

19 Registries must use only ICANN accredited registrars in registering domain names and may not discriminate among such accredited registrars.

20* An application will be rejected if an expert panel determines that there is substantial opposition to it from a significant portion of the community to which the string may be explicitly or implicitly targeted.

-- Wendy Seltzer -- wendy@seltzer.org Visiting Professor, Northeastern University School of Law Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/ https://www.torproject.org/

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