Hi everyone, I'm writing in regard to the paper put together by Evan Liebovitch and others (https://community.icann.org/display/atlarge/alac+response+to+the+gac+gtld+sc...), which I find to be problematic on many fronts. The paper purports to be a response by NARALO/ALAC to the GAC scorecard. In reality, however, it is the point of view of just a few individuals, and in my view seriously misrepresents the points of view of many ALAC participants. My responses are not as organized or concise as they might be, but I note the March 25 deadline for comments. I am sure there are errors of grammar and spelling and in some cases (hopefully very few) of sense. (Note: For all intents and purposes, my "constituency" within ICANN is as a member of NARALO. Although my company wishes to provide services to new gTLD applicants, it is not a member of the registry constituency (refused) or the business constituency (refused.) As a North American resident, as a longtime NARALO commenter and participant, and as an otherwise "homeless" participant (no stakeholder group will have me) in the ICANN process, I would like to offer my thoughts and amendments.) There are many points in this document that I agree with, and many where I DISAGREE (in caps throughout for ease of reference). The document is thorough and well-drafted, but I don't believe it should be put out as is, for reasons that I lay out below. I offer my thoughts with a constructive spirit to try to present the Board with a document that truly represents consensus and has the broad support of the ALAC community. Where I have referenced outside materials, I have added references in brackets and capital letters. Antony Van Couvering ++++++++++ I. THIS PAPER SHOULDN'T BE COMMUNICATED WITHOUT CONSENSUS This document should not be put as an ALAC document, even with caveats, until there is some certainty that it approximates the point of view of ALAC members. From what I have seen -- and I would be happy to be corrected -- the only inputs have come from one NARALO member and one EURALO member, with a couple of other small comments. The document notes: "It must be emphasised that, because of the extremely compressed timeline allowed for this response, ALAC has not received the broad At-Large community feedback and buy-in that such a statement would normally warrant. While its authors have solicited comment and ALAC endorsement, this statement is still subject to review and possible refinement pending broader At-Large distribution." So, as it stands, it is the work of just a few people. I don't see the value of putting out a position paper that doesn't represent the views of NARALO or ALAC, in fact it may be harmful. If this position paper doesn't represent an ALAC consensus, or note the areas of consensus and non-consensus, then it shouldn't be published. One of the areas where ALAC has been very useful (and consistent) is in its insistence on consensus and transparency. The ALAC statement of Nov 2010 [A] says: "In order to ensure that the entire At-Large community had the opportunity to review the five statements, and for their perspectives to be taken into account, the ALAC resolved upon a process of consultation and amendment for the statements by resolution at its 24th March 2009 teleconference. As a result, the Summit Working Group statement was opened for public comments by the At-Large community on 1st April, closing on 11th April. The New GTLD Working Group then amended the statement to incorporate comments received." It strikes me that the above statement is a good method for achieving consensus, whereas a position authored by just a few, without consultation, is not. II. AREAS OF AGREEMENT / CONCERN / DISAGREEMENT The paper makes some good points but also puts forward positions that not only disagree with the previous hard-fought community consensus, they in some cases disagree with previous ALAC consensus positions. As the ALAC said recently [B], "we have serious concerns regarding what we consider to be backwards steps from areas of community consensus." It is important that we respect the community consensus, and the Guidebook, which has been through years of examination, does represent that consensus, even if it doesn't represent the views of ALAC 100%. To the paper itself: 1. Section entitled "Thematic Response." The draft paper says: "ALAC has always had significant challenges regarding both the processes taken to produce the current Applicant Guidebook (AG) as well as its result." I don't think this is entirely true. For one thing, one of the loudest voices to initiate the current process came from the ALAC, stemming directly from the flawed sponsorship round, of which .XXX is the last progeny. [C] In that report, and in subsequent statements, ALAC has emphasized to ICANN that policy should be the result of consultations and consensus from the whole community. Given that the guidebook represents close to 3 years of continual discussion, which has drawn out all the arguments pro and con, which was initiated by the GNSO and examined closely by every constituency, advisory committee, and stakeholder group, this process better represents rough consensus among the entire community than any other ICANN policy ever proposed. 2. Scorecard Items 1, 2.1, 12 - The paper purports to have ALAC agreeing with the GAC to eliminate Module 6, the "morality clause." It claims that in Mexico City, the ALAC said that "ICANN's obsession with a judicial, adversarial process provides a barrier to legitimate objections and needless expense to TLD applicants defending against trivial, unsustainable objections." I agree that the morality clause is very silly [D], but it pays to be careful about what we're talking about, and assertions that might not sustainable when examined. I DISAGREE with the conclusion. First, the ALAC said nothing in Mexico City about obsessions by ICANN with adversarial procedures. [E] For another, that's not what the procedure as outlined in the Guidebook does. Finally, although the GAC did say that they wanted to jettison Module 6, that's not where they ended up after meeting with the Board. Recall that the scorecard has now been the subject of several intensive meetings between the GAC and the Board, and both sides have modified their positions. The GAC indicated in Brussels that its concern relates to requiring governments to use this objection process. The Board and GAC therefore agreed that it would be consistent with GAC advice to leave the provision for Limited Public Interest Objections in the Guidebook for general purposes, but the GAC (as a whole) would not be obligated to use the objection process in order to give advice. There should not be the implementation of an entirely new objection procedure that is a complete turn-around from what is already in place, esp. when the GAC and the Board seem to have reached an accommodation. 3. Scorecard Items 1, 2.1, 12 - The paper says: "The public interest is best served by being reasonably liberal in string acceptance, lest ICANN be drawn into unfamiliar territory of content-based judgements." I am in complete agreement with this. 4. Scorecard Items 1, 2.1, 12 - The paper says: "The global Internet-using public interest is badly served in being deprived of a TLD string (and a potential community focal point) simply because of the perceived insult of a small number of national governments. The Internet does not exist to only provide information that pleases everyone." I am in complete agreement with this. 5. Scorecard Items 1, 2.1, 12 - The paper says: "As a replacement we endorse Scorecard #2.1 with the following conditions: A similar objection mechanism must exist for non-governmental organisations to launch objections (either a better-resourced branch of ALAC, a revised version of the Independent Objector, or something similar)." DISAGREE. I note this statement calls for complete removal of ONLY the objection procedure based on “limited public interest.” The objection procedures that have been developed based on communty consensus should not be replaced with the GAC proposal for String Review. The current AGB objection procedure is a necessary part of the process. We disagree that the ALAC or any other body should have an objection mechanism that is not agreed upon by the community or currently defined in the AGB. 6. Scorecard Items 1, 2.1, 12 - The paper says (point 2): "2. The GAC (and other bodies able to raise objections) should satisfy the broader community that objections it will raise -- as a global advisory body -- reflect a reasonable consensus between members and do not just reflect the whim of a small number of advocates." I support the concept that any advice from the GAC must be based on a GAC consensus position. Individual governments are able to use the public comment period and the objection procedure as a means of voicing their concern. 7. Scorecard Items 1, 2.1, 12 - The paper says (points 6 and 7): "All objection processes must be transparent; specifically, anonymous objections are explicitly NOT allowed; The Board must have ultimate decision making authority with the unimpeded right to override objection advice." I am in complete agreement with these important points. 8. Scorecard Items 1, 2.1, 12 - The paper says (point 8): "Split decisions -- in which even rough consensus between the GAC, ALAC and other stakeholders is impossible -- should weigh in favour of approving the string under objection. Globally blocking a TLD string on public interest grounds requires, in our view, consensus that the very existence of the string damages the public interest." DISAGREE. This particular point highlights the very reason that there should not be a multi-party review for the objection procedure. Finding agreement between the GAC/ALAC/Other stakeholders will impede the objection process. Objections should be filed by one party per one application, and reviewed by one evaluator. 9. Scorecard Items 1, 2.1, 12 - The paper says (point 9): "In agreeing with Scorecard #12, we also believe that it is simple common sense to be able to alert TLD applicants, as early in the application process as possible, to potential objections." DISAGREE. I oppose implementing any new procedure. The current process allows sufficient time for applicants to mediate with objectors. 10. Scorecard Items 1, 2.1, 12 - The paper says (point 9): "Applicants, having entered such good-faith negotiations with potential objectors, should be able to make minor changes to their applications in order to comply with a negotiated settlement." I DISAGREE. There should be no changes to an application after submission; to do so brings up an entire set of difficult complications -- for instance, should the changed application then be re-evaluated? 11. Theme 2 - trademarks. Generally, I have trouble with the sentence that says: "We support many of the Scorecard's name-protection measures which are consistent with the STI consensus recommendations and even a few that go beyond." Does this mean that the paper supports those GAC measures that are consistent with the STI, but not others? Or does it mean that it supports all the GAC measures, many of which are consistent with the STI? Which are which? In many of the points regarding trademarks, I DISAGREE with the positions taken by this paper In general, I support the guidebook on the following points (with reasons): -- I agree with the guidebook, that all trademarks for nations and supranations shall be accepted into the Trademark Clearinghouse. A date of acceptance cut-off will not be utilized, as this rewards bad actors from previous rounds. -- There should be a Sunrise OR IP Claims, but not both. Having both is redundant and circular, and imposes significant costs on registry operators, which will be passed onto registrants. -- Trademarks for IP Claims or Sunrise must be an exact match. Going beyond exact matches is unworkable and gives ICANN more discretionary power than any currently accepted TM law might. There shall be no requirement for post-launch IP Claims. -- Registries shall have discretion to restrict eligibility of trademarks based on objective criteria reasonably related to the purpose of the TLD such as evidence of use, or class of goods and services (e.g. .shoe could restrict Sunrise to only trademark registrations that show use in shoe-related class of goods and services). -- There shall be no requirement for post-launch Sunrise TM Claims. -- Each trademark registration must be supported by evidence of use in order to be the basis of a URS complaint 12. The paper says, in regard to the URS: "A successful complainant should have first right of refusal for transfer (#6.2.12)." DISAGREE This goes against the STI recommendation (as a side note, any time ALAC is going against community consensus, it should be noted.) In agreement with IRT/STI, I do not support the right of first refusal transfer of names to URS complainants. The Uniform Rapid Suspension service is specifically that, suspension in order to stop the resolution of a domain name that is harmful or infringing. Any domain transfer should be awarded through the UDRP. 13. Expanding the URS beyond exact matches. DISAGREE. This is very thin ice, for a few reasons. First, the obvious issues with free speech: extending the URS beyond exact matches is problematic and impedes freedom of speech, for example “wal-martsucks.tld”. Second, many brand names are parts of common words. Would the huge bank "ING" be able to object to any gerund or participle containing the letters "ing"? 14. The paper says, "In regard to Consumer Protection measures as stated in Scorecard #6.4 (except for #6.4.4, see below), ALAC strongly agrees with the GAC positions." DISAGREE. For one thing, it is inappropriate to say that the ALAC agrees or disagrees with anything absent proper consensus, let along saying that it "strongly agrees." The GAC position, I feel, comes from a lack of understanding of what a registry does; this may be true of anyone who hasn't run a registry, including some ALAC members. The GAC's positions 6.4.1 and 6.4.2 are ill-informed of the actual registry function. The GAC scorecard 4.1 states: “Amend the "Maintain an abuse point of contact" paragraph in the DAG to include government agencies which address consumer protection.” All registry operators already must provide an abuse point of contact (within the registry administration staff). The public face of this POC is an email, abuse@registry.TLD. The contact person then acts upon or notifies the appropriate party of any required action. The GAC scorecard seems to call for a listing of government agencies which address consumer protection which would be published on the registry website. This request is outside the registry operator's purview. 4.2 states: “A registry operator must assist law enforcement, government agencies and agencies endorsed by governments with their enquiries about abuse complaints concerning all names registered in the TLD, including taking timely action, as required, to resolve abuse issues." This demand is acceptable with the condition that registry operators should provide reasonable assistance to law enforcement (both civil and criminal) consistent with applicable national law. Registry operators should not be required to provide any proprietary data without a legitimate, legal request, in order to prevent violation of national privacy laws. 15. Theme 3 - Categories. The paper says, "Despite widespread community request, ICANN has not budged from its long-standing position of only two categories of applications -- "regular" and "community". This is despite the fact that GNSO policy on gTLDs allows for categorization, and indeed allows for differential pricing for different categories (another policy conveniently overlooked in all versions of the AG to date). The GAC Scorecard, in our view, simply adds one more strong voice to the need for categorization beyond what now exists. While arguments have been made -- and should be heeded -- about the concern that categorizatioin mechanisms would be subverted for financial gain (also known as "gamed"), ALAC holds the view that such concerns are not sufficient to resist implementation of new necessary categories. Even if gaming succeeds, in our view it is prefereable to let a few applications "slip through the cracks" than to deny the public service and innovation possible through creating a small number of new categories." VEHEMENTLY DISAGREE on nearly every point. Categories are implicity problematic and despite what the authors have written and what ALAC might feel on the subject, they have been rejected by the entire community time and time again. The designation of more categories beyond “Community” and “Generic” raises more problems than it could possibly solve. 16. The paper says, "In principle, we endorse the GAC position of wanting a special status for TLD names which indicate entire sectors which may be subject to regulation (such as .bank, .pharma, .lawyer). DISAGREE. I support the Board position and strongly disagree WITH allowing special status for certain regulated sectors. There are no proprietary rights to such words. The admission that “we are unclear about what form” and “how ..to verify and enforce” clearly presents the problem of creating Special Categories. These concerns are dealt with through the 5 processes already in the Applicant Guidebook, and the position taken by the paper's authors creates new rights where none existed before -- in contravention of earlier adopted ALAC positions taken with full ALAC consensus. The GAC proposal is unnecessary as the underlying concern is already addressed by the following mechanisms: (a) The GAC objection process (advice); (b) Background checks/vetting of applicants; (c) Community objection procedures; (d) Malicious activity controls; (e) IO Objections; (f) Public comment; and (g) Board’s ability to reject an application per Module 5.1. 17. Geographic Names -- broadly, I support the position taken by the paper. It says, "We agree with the ICANN Board response of relying on pre-determined names." If geographical names beyond country names are to be protected, they must come from an internationally recognized authoritative list. I note that this discussion is for protection at the SECOND level. The GAC should NOT be able to unilaterally designate a word as geographic. Many geographic names are also generic terms, as aptly described by Board member Bruce Tonkin's .MARS illustration. Does Mars the planet have a better right to mars.TLD than Mars the chocolate bar? What if the martians don't care? This problem is dealt with through the TM clearinghouse, URS and UDRP procedures. 18. Assistance for disadvantaged applicants. This is a very important topic, and my company has been active in supplying funds to developing ccTLDs because I believe that the Internet as a whole does better with wide and diverse participation. The JAS WG has established that “NEED” is the primary selective for applicant support. I fully supports the JAS WG proposal and Board's affirmation of, a matching system where providers of support and services would be matched with applicants that qualify based on need. I do NOT support the GAC proposal that applications from a specific region should be granted greater consideration for support, because this is not indicative of need, but only of geography. 19. Operational readiness. The paper states, "We would note that only the vested interests within ICANN are pushing for a massive round of simultaneous applications and approvals. We would advise a more staggered approach, with a steady timetable of approvals and delegations." DISAGREE. Apart from the gratuitous editorializing (most ICANN participants have a vested interest, including many in ALAC), this statement goes squarely against the GNSO policy and in addition flies in the face of all the facts, science, and sober representations by technical people in the community. The root is monitored by everyday by multiple parties all around the world. Delegation rate scenarios have been modeled and tested. There is no technical basis for limiting the number of new TLDs to be added to the root. The Board did note, personnel capacity will limit the possibility of processing more than 1000 new TLDs/year. As noted by Steve Crocker, adding 1000 TLDs annually to the root is similar to adding a drop of water into a liter-sized bottle. 20. Business and Market Considerations. The paper states, "ICANN should not be in the business of evaluating business models beyond the sustainability of the plans," and ""public benefit" declarations within TLD applications will be of dubious benefit, and in any case subject to substantial modification (and difficulty of enforcement) post-delegation." Completely agree. 21. Cross ownership. The paper states, "the requirement to use ICANN accredited registrars and to not self-distribute could jeopardize TLDs that will have a specific regional focus or those using less common scripts or languages" and "There should be viable ways for single registrant TLDs to operate effectively." Completely agree. 22. Due diligence on applicants. I think the Board and the GAC actually agree on this topic, although the GAC wants to have "extra" checks that they are however unable to define. I support that ICANN should make screening as effective as possible. ICANN is willing to meet with law enforcement and other experts to ensure that all available expertise is focused on this issue. (ICANN notes however that there is no consistent definition of criminal behavior across multiple jurisdictions, and the existing proposed Applicant Guidebook consciously targets "crimes of trust".) I agree with ALAC that drug crimes seem completely off-topic in this context. References: [A] http://www.atlarge.icann.org/announcements/announcement-19apr09-en.htm [B] https://community.icann.org/display/atlarge/Additional+ALAC+Statement+on+Dra... [C] ALAC position on 2003 sponsored TLDs. http://www.dnso.org/clubpublic/gtld-com/Arc00/msg00039.html [D] Blog post by Antony Van Couvering. http://www.namesatwork.com/blog/2008/10/30/icanns-morality-memo [E] "Statement on New gTLDs Applications Process v2," https://st.icann.org/alac-docs/index.cgi?statement_on_new_gtlds_applications...