[Gnso-newgtld-wg-wt5] Proposed Agenda - Work Track 5 - 7 August 2019 at 20:00 UTC

Heather Forrest haforrestesq at gmail.com
Wed Aug 7 11:20:18 UTC 2019


Dear Katrin, all,

I do not support the changes to the AGB that are proposed here, because I
do not believe that there is a sufficient rationale for making these
changes. Among the many things about which we disagree in WT5, I hold onto
our shared understanding that the GNSO Council, the ICANN Board, and the
broader community will demand that we provide a clearly articulated,
reasonable rationale for any changes to the AGB. There isn't a clear
rationale here for eliminating an independent Geographic Names Panel that
makes arms length, neutral evaluations of applications.

The proposed change A to Module 4 imposes on all applicants a requirement
of certain countries' domestic law that has no equivalent in international
law. I'm not at all arguing against prioritisation requirements in the
domestic law of any country, and no ICANN policy can take away those rights
created under a country's domestic law. Those rights will always be
recognised in national courts, and enforceable against (and only against)
those subject to the law of that jurisdiction. ICANN is not an appropriate
body to enforce domestic law or even, taking a step back, to determine
against whom domestic law should/should not be enforced (we can imagine
disputes here in interpretation of, for example, "if the applicant for the
geoTLD is based in a country where national law gives precedent to city
and/or regional names").

The proposed change B to Module 4 likewise gets ICANN into the business of
deeming one party (larger population) as having more right than another
party (smaller population). Again, problems of interpretation are
inevitable (ie, where are the boundaries when counting population, etc),
and more importantly, this imposes a prioritisation that is mandated in
only some domestic laws on all applicants, including those who are not
otherwise subject to those laws. ICANN policy should, of course, not impede
the enforceability of domestic law, but it is not ICANN's job to be the
enforcer. We can analogise here, love it or not, to the EPDP - the pre-GDPR
WHOIS protocol embedded in the RAA and RRA made it impossible for
contracted parties subject to the GDPR to comply with that law. The EPDP's
job is not to develop a policy that enforces GDPR, but rather to develop a
policy under which it is possible for those parties subject to that law to
comply with both ICANN contractual requirements and that law - it isn't
ICANN's role to determine who is subject to the GDPR, but simply to make
that compliance possible under the ICANN contractual framework.

I am concerned that we have now moved so far away in WT5 from the original
2007-2008 principles of the GNSO, which upheld what was even then a
longstanding tradition in ICANN policy of not putting ICANN in the position
of having to make prioritsation decisions, ie, not determining one party as
being more worthy than another. We struggled with concepts like auctions
and so forth in 2007-2008 and in the years since to resolve conflicts, but
the driving force behind those ideas was always to provide an equal and
fair opportunity unless international legal principles said otherwise. The
specific body of international law on geographic names has not changed
since then, so I do not feel that we are in a position to deviate from
those now, as regards this proposal or indeed any of our recommendations in
WT5.

Best wishes,

Heather Forrest

On Wed, Aug 7, 2019 at 3:28 AM Katrin Ohlmer | DOTZON GmbH <
ohlmer at dotzon.com> wrote:

> Dear All,
>
>
>
> as announced, I would like to provide the proposal of the geoTLD group on
> the topic 4 „Changes to string contention resolution“:
>
>
>
> *Update Applicant Guidebook, Chapter 2.2.1.4.4 with:*
>
> If an application for a string representing a geographic name is in a
> contention set with applications for identical strings that have not been
> identified as geographical names, the string contention will be resolved
> using the string contention procedures described in Module 4.
>
>
>
> *Update Applicant Guidebook, Module 4. with:*
>
> A// In case there is contention for a string where one application intends
> to use the string as a non-capital city name or designated the TLD to
> targeting it to a geographic meaning, preference should be given to the
> applicant who will use the TLD for geographic purposes if the applicant for
> the geoTLD is based in a country where national law gives precedent to city
> and/or regional names.
>
>
>
> *RATIONALE: This would reflect national law e.g. in countries like
> Switzerland and Germany, where e.g. city names have more rights that
> holders of the same name.*
>
>
>
> B// If there is more than one applicant for an identical string
> representing a geographic name, and the applications have requisite
> government approvals, the applicant with the larger no of inhabitants will
> prevail over the smaller one. As the criteria „size“ has been used in the
> CPE criteria, it is apparently a well-accepted criteria.
>
>
>
> *RATIONALE: This would reflect the current rule of the Applicant Guidebook
> „capital city has priority over smaller city.*
>
>
>
> I’m happy to explain our thoughts until our call, individually or on the
> list.
>
>
>
> Kind regards
>
> Katrin
>
>
>
>
>
> DOTZON GmbH - digital identities for tomorrow
> Akazienstrasse 28
> 10823 Berlin
> Deutschland - Germany
> Tel: +49 30 49802722
> Fax: +49 30 49802727
> Mobile: +49 173 2019240
> ohlmer at dotzon.consulting
> www.dotzon.consulting
>
> Besuchen Sie uns auf LinkedIn
> <https://de.linkedin.com/company/dotzon-gmbh>.
>
>
> DOTZON GmbH
> Registergericht: Amtsgericht Berlin-Charlottenburg, HRB 118598
> Geschäftsführer: Katrin Ohlmer
> Sitz der Gesellschaft: Akazienstrasse 28, 10823 Berlin
>
>
>
> *Von:* Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org> *Im
> Auftrag von *Emily Barabas
> *Gesendet:* Dienstag, 6. August 2019 12:14
> *An:* gnso-newgtld-wg-wt5 at icann.org
> *Betreff:* [Gnso-newgtld-wg-wt5] Proposed Agenda - Work Track 5 - 7
> August 2019 at 20:00 UTC
>
>
>
> Dear all,
>
>
>
> Please find below the proposed agenda for the Work Track 5 call tomorrow,
> 7 August 2019 at 20:00 UTC for 90 minutes:
>
>
>
>    1. Welcome/Agenda Review/SOI Updates
>    2. Closure of Discussion on Languages/Translations (see attached
>    document summarizing proposals that have been discussed on recent calls)
>    3. Closure of Discussion on Non-AGB Terms
>    4. Closure of Discussion on Changes to String Contention Resolution
>    5. Final review of public comments - Proposals 6, 7, 8, 9, 10, and 37
>
>
>    - Please see the public comment summary document beginning on page 32: https://docs.google.com/document/d/1rsyxCEBd6ax3Rb_w1kms_E9n29XL1_lw3Yp9XQ4TeCY/edit?ts=5ce64d6d#
>    [docs.google.com]
>    <https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1rsyxCEBd6ax3Rb-5Fw1kms-5FE9n29XL1-5Flw3Yp9XQ4TeCY_edit-3Fts-3D5ce64d6d&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=adDIs0WEx_lLwFfrsdovxTYY8GkRHo5ibc8SR3Npdh8&m=3BiY73bJkVd7CaVAsXrCwy6qPoNUAqdL-VMeZv9TdC4&s=JEegQK-bnMq7iB_tV6AxicCqF3GwM-h0bXIWCEMINpo&e=>
>    .
>    - For reference, full text of comments is available at: https://docs.google.com/spreadsheets/d/1WKSC_pPBviCnbHxW171ZIp4CzuhQXRCV1NR2ruagrxs/edit#gid=543808477
>    [docs.google.com]
>    <https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_spreadsheets_d_1WKSC-5FpPBviCnbHxW171ZIp4CzuhQXRCV1NR2ruagrxs_edit-23gid-3D543808477&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=adDIs0WEx_lLwFfrsdovxTYY8GkRHo5ibc8SR3Npdh8&m=3BiY73bJkVd7CaVAsXrCwy6qPoNUAqdL-VMeZv9TdC4&s=y5q5Vv5ZFLioDRFYnTxSgnZn6UYnqs9lQvfGjC8BXn4&e=>
>
>
>    1. AOB
>
> Kind regards,
>
> Emily
>
>
>
>
>
> *Emily Barabas *| Policy Manager
>
> *ICANN* | Internet Corporation for Assigned Names and Numbers
>
> Email: emily.barabas at icann.org | Phone: +31 (0)6 84507976
>
>
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