[Gnso-igo-ingo-crp] FW: [council] Board reply letter on IGO/RC issues and proposal on IGO acronyms protection from the IGO "small group"

Fri Oct 7 13:49:57 UTC 2016

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 at 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).
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> 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/
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> On Fri, Oct 7, 2016 at 8:43 AM, George Kirikos <icann at 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.jpg
>> 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 at 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 at gnso.icann.org> on behalf of Mary Wong
>>> <mary.wong at icann.org>
>>> Date: Thursday, October 6, 2016 at 17:02
>>> To: GNSO Council List <council at gnso.icann.org>
>>> Cc: Steve Crocker <steve.crocker at board.icann.org>, Chris Disspain
>>> <chris at disspain.uk>, "bruce.tonkin at melbourneit.com.au"
>>> <bruce.tonkin at melbourneit.com.au>, Markus Kummer
>>> <markus.kummer at board.icann.org>, Becky Burr <Becky.Burr at neustar.biz>,
>>> "board-ops-team at icann.org" <board-ops-team at 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 at icann.org
>>>
>>> Telephone: +1-603-5744889
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
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