[Gnso-newgtld-wg-wt5] Proposed Agenda - Work Track 5 - 7 August 2019 at 20:00 UTC
COBrien at llflegal.com
Wed Aug 7 13:59:13 UTC 2019
I agree with Heather on this. ICANN cannot and should not be in the position of determining domestic laws.
From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org> On Behalf Of Heather Forrest
Sent: Wednesday, August 7, 2019 6:20 AM
To: Katrin Ohlmer | DOTZON GmbH <ohlmer at dotzon.com>
Cc: gnso-newgtld-wg-wt5 at icann.org
Subject: Re: [Gnso-newgtld-wg-wt5] Proposed Agenda - Work Track 5 - 7 August 2019 at 20:00 UTC
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.
On Wed, Aug 7, 2019 at 3:28 AM Katrin Ohlmer | DOTZON GmbH <ohlmer at dotzon.com<mailto:ohlmer at dotzon.com>> wrote:
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 18.104.22.168.4 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.
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Von: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org<mailto: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<mailto:gnso-newgtld-wg-wt5 at icann.org>
Betreff: [Gnso-newgtld-wg-wt5] Proposed Agenda - Work Track 5 - 7 August 2019 at 20:00 UTC
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=>
Emily Barabas | Policy Manager
ICANN | Internet Corporation for Assigned Names and Numbers
Email: emily.barabas at icann.org<mailto:emily.barabas at icann.org> | Phone: +31 (0)6 84507976
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