[Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

Wed Aug 28 15:36:34 UTC 2019

Hi Paul,

That is why I am trying to create some clarity. If we have policies in place that are seemingly not clear enough formulated – or are violating the laws of the U.S.: that’s a problem.

As it stands now if you wanted to apply for a city-name in the U.S.: you would want to acquire the letter of non-objection. And in reality people will do so by working WITH the city – not against it.

Thanks,

Alexander

From: McGrady, Paul D. [mailto:PMcGrady at taftlaw.com] 
Sent: Wednesday, August 28, 2019 6:23 PM
To: alexander at schubert.berlin; gnso-newgtld-wg-wt5 at icann.org
Subject: RE: [Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

Thanks Alexander.  Arguably, when ICANN was a government contractor it was violating the First Amendment by having these sorts of free speech restrictions in the AGB.  It would depend on whether or not a court agreed that ICANN was acting as a government actor in its new gTLD program.  It is less clear now that ICANN is operating the DNS without the legitimacy of a US government contract behind it.  

As far as Name Panels and others agreeing or disagreeing, we really have to stick with the plain language of the AGB rather than interpretations of plain language.  Otherwise, the AGB doesn’t really provide predictability on any topic.

Best,

Paul

From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org <mailto:gnso-newgtld-wg-wt5-bounces at icann.org> > On Behalf Of Alexander Schubert
Sent: Wednesday, August 28, 2019 9:22 AM
To: gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> 
Subject: Re: [Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

Hi Paul,

Seemingly all these 4 U.S. city applications answered “21(a). Is the application for a geographic name?” with “yes”!

ICANN (a U.S. legal entity) “requires” a letter of non-objection in such case!

So you are telling us that ICANN is in violation of U.S. laws? Or do you say the applicants could have denied the geo-designation? Or they could have designated themselves as GEO application – but then deny providing the required documentation?

You say:  “Official city documents are the incorporation or chartering documents”. OK. So a question to staff: Does ICANN staff (geo panel) share this view? The official city website doesn’t count as “official city document”? I am of the opinion that thre are all kinds of “official city documents” – including building permits, announcements, and whatnot.

Thanks,

Alexander

From: McGrady, Paul D. [mailto:PMcGrady at taftlaw.com] 
Sent: Wednesday, August 28, 2019 5:01 PM
To: alexander at schubert.berlin <mailto:alexander at schubert.berlin> ; gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> 
Subject: RE: [Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

Thanks Alexander.   I’ve blocked in your various questions and reply to each in turn:

So in your opinion if any U.S. city had ever conducted a “public tender” in connotation with the operation of their city name gTLD; and made winning that tender a pre-requisite for the issuance of the letter of non-objection:  They violated the 1st amendment? 

Americans don’t need a letter of non-objection from their government to speak, including the right to apply for whatever gTLD string they choose.  That right of non-objection is granted as a matter of birth or nationalization into citizenship – the government doesn’t have a right to object and so a letter of non-objection is a nonsensical item for an American to ask from their government.  It is like seeking permission to breath.  

Restrictions coming out of the ICANN process are a matter of contract whereby ICANN may choose to give certain contractual rights to governments to interfere with speech (by withholding a consent letter) but ICANN can’t grant a U.S. City the right to object to an application, as the U.S. City’s relationship to the applicant is governed by the First Amendment, not the AGB.  This is not to say that the U.S. City can’t object to inappropriate uses of second level domains, e.g. police.Boston to pretend to be the Boston PD but would have no basis to objection to police.Boston for the promotion of a reunion tour stop in Boston by Sting and his old band.

And “City of Oakland”:

*         .miami – but it is “City of Miami”: so no letter of non-objection needed?  Correct, none needed.  “Miami” is the name of Native American tribe, not the name of the city.  The City’s name, as you noted, is “City of Miami.”  A clear reading of the AGB would require the letter only for .cityofmiami.  

*         .nyc – but it is “New York City” //  “City of New York”: so no letter of non-objection needed? Correct, none needed.  

*         .vegas – but it is “City of Las Vegas”: so no letter of non-objection needed? Correct, none needed.  “Vegas” isn’t even the full name of the nickname “Las Vegas”

*         .boston – but it is “City of Boston”: so no letter of non-objection needed? ? Correct, none needed.  

Btw: 2.2.1.4.2  2.(b) states:

“The applied-for string is a city name as listed on official city documents…..”; 

I guess official websites pass as official documents, and nyc.gov seems to use NYC – right in the URL already, then all over the place on the website! oaklandca.gov – the same: Not “cityofoaklandca.gov” – and states on the splash page:  “Welcome to Oakland, California” – not “Welcome to the City of Oakland, California”.

Official city documents are the incorporation or chartering documents, not websites.  Otherwise, The City of Miami could decide to refer to itself as “Dolphinville” on its website and then attempt to block strings for .dolphinville which would be a very silly outcome.  

Best,

Paul

From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org <mailto:gnso-newgtld-wg-wt5-bounces at icann.org> > On Behalf Of Alexander Schubert
Sent: Tuesday, August 27, 2019 6:56 PM
To: gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> 
Subject: Re: [Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

Hi Paul,

So in your opinion if any U.S. city had ever conducted a “public tender” in connotation with the operation of their city name gTLD; and made winning that tender a pre-requisite for the issuance of the letter of non-objection:  They violated the 1st amendment? 

And “City of Oakland”:

*         .miami – but it is “City of Miami”: so no letter of non-objection needed?

*         .nyc – but it is “New York City” //  “City of New York”: so no letter of non-objection needed?

*         .vegas – but it is “City of Las Vegas”: so no letter of non-objection needed?

*         .boston – but it is “City of Boston”: so no letter of non-objection needed?

Btw: 2.2.1.4.2  2.(b) states:

“The applied-for string is a city name as listed on official city documents…..”; 

I guess official websites pass as official documents, and nyc.gov seems to use NYC – right in the URL already, then all over the place on the website! oaklandca.gov – the same: Not “cityofoaklandca.gov” – and states on the splash page:  “Welcome to Oakland, California” – not “Welcome to the City of Oakland, California”.

Thanks,

Alexander

From: McGrady, Paul D. [mailto:PMcGrady at taftlaw.com] 
Sent: Wednesday, August 28, 2019 1:59 AM
To: alexander at schubert.berlin <mailto:alexander at schubert.berlin> ; gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> 
Subject: RE: [Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

Thanks Alexander.  The answer is neither if the string is .oakland.  

Both cities, I believe, are named The City of Oakland.  So, if someone applied for the .thecityofoakland string, there may be a need, under the AGB, to collect letters from these U.S. municipalities that, under the First Amendment, have zero ability to preclude the applicant’s speech in applying for the string and using it however they wish (so long as they aren’t impersonating the city – unless it is for satire or political commentary, of course, then they can knock themselves out).  However, Oakland is not the official name of either city, so a .Oakland requires no government approvals.  2.2.1.4.2, 2.  States “An application for a city name, where the applicant declares that it intends to use the gTLD for purposes associated with the city name.”  (I added the yellow)  2.2.1.4.2, 2. doesn’t make any reference at all to elements which form city names, or else no one could apply for .the, .city or .of.  

Hope this helps.  

Best,

Paul

From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org <mailto:gnso-newgtld-wg-wt5-bounces at icann.org> > On Behalf Of Alexander Schubert
Sent: Tuesday, August 27, 2019 5:45 PM
To: gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> 
Subject: Re: [Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

Paul,

Policy is policy. I am not asking what is practical – I am asking what the current wording means in praxis:

The 2012 AGB 2.2.1.4.2  §4 (PDF page 69) states:

“In the event that there is more than one relevant government or public authority for the applied-for gTLD string, 

   the applicant must provide documentation of support or non-objection from all the relevant governments or public authorities.”

Does this policy element require a letter of non-objection from ALL cities with the same name? Or can you apply for Oakland, Iowa (1500 people) – then happily sell it to anybody who wants .oakland domains (e.g. people in California, where the real BIG Oakland is located).

It’s a yes or no answer.

Thanks,

Alexander

From: McGrady, Paul D. [mailto:PMcGrady at taftlaw.com] 
Sent: Wednesday, August 28, 2019 1:29 AM
To: alexander at schubert.berlin <mailto:alexander at schubert.berlin> ; gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> 
Subject: RE: [Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

Thanks Alexander.

There are 88 different cities and towns in the US alone that share the name Washington.  Springfield has 41 different locations.  Franklin has 35.  Greenville has 30.  Bristol, 29.  Clinton, 29.  Salem has 26.  Madison has a lowly 24.  Georgetown has 23.  Forgot Fairview, it has 27.  And that is the tip of the proverbial iceberg.  Both the path of running around trying to get letters from dozens of cities or the path of ICANN picking winners and losers are unworkable in the extreme.  I understand your reasons for wanting this, but it just isn’t practical.  If one of these cities has a right in law to prohibit a gTLD registry operator from adopting a corresponding string, let them file an ICANN objection.  They also could sue.  Sending an applicant for .franklin on a wild goose chase simply doesn’t make any sense.

Best,

Paul

From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org <mailto:gnso-newgtld-wg-wt5-bounces at icann.org> > On Behalf Of Alexander Schubert
Sent: Tuesday, August 27, 2019 5:11 PM
To: gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> 
Subject: Re: [Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

Dear Paul,

that’s why ICANN is explicitly requesting letters of non-objection from ALL Toledo cities (at least in my mind)! There aren’t THAT many cases where a city name is shared by several cities – but those who do: get a letter of ALL cities and you are fine.

The 2012 AGB 2.2.1.4.2  §4 (PDF page 69) states:

“In the event that there is more than one relevant government or public authority for the applied-for gTLD string, 

   the applicant must provide documentation of support or non-objection from all the relevant governments or public authorities.”

So no: ICANN should NOT decide which city is the best or largest.

My question remains: Is my interpretation of the 2012 AGB 2.2.1.4.2  §4 shared by others?

Thanks,

Alexander

From: McGrady, Paul D. [mailto:PMcGrady at taftlaw.com] 
Sent: Wednesday, August 28, 2019 12:54 AM
To: alexander at schubert.berlin <mailto:alexander at schubert.berlin> ; gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> 
Subject: RE: [Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

Hi Alexander,

Your email underscores a very important problem with seeking permission from cities in the first place.  Toledo, Spain may be tiny compared to Toledo, Ohio, but it is ancient and lovely and let’s just say its larger sister is not so much.  Why in the world would we want ICANN to be in the business of trying to decide which Toledo is the “most Toledo-ish Toledo” and how could ICANN possibly do that for every city grouping that shares a name (Cleveland, Ohio, Cleveland, Tennessee, Cleveland, Queensland, Australia, Cleveland, Georgia (the State, not the country), Cleveland, Texas, etc. etc. etc.) all in advance of the publication of the next AGB in order to provide predictability to applicants?  ICANN shouldn’t be in that business and they won’t be able to accomplish the necessary even if they wanted to.  Even if they just went by way of population (might makes right?) they would be tied up in reconsideration requests and IRPs such that the next round will open in 20 years.

This is exactly why extending special treatment for non-capital cities is a really bad idea (it’s also a bad idea for capital cities, but that is the compromise already baked in the AGB from the last round, so...).

Best,

Paul

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From: Gnso-newgtld-wg-wt5 <gnso-newgtld-wg-wt5-bounces at icann.org <mailto:gnso-newgtld-wg-wt5-bounces at icann.org> > On Behalf Of Alexander Schubert
Sent: Tuesday, August 27, 2019 4:12 PM
To: gnso-newgtld-wg-wt5 at icann.org <mailto:gnso-newgtld-wg-wt5 at icann.org> 
Subject: [Gnso-newgtld-wg-wt5] City names: "non-objection from all the relevant governments or public authorities"

I have brought this up before but got no response so far: 

Question:  Would an applicant for “Oakland” need just ONE or SEVERAL letters of non-objection (assuming he is only mentioning “Oakland , Iowa” in his application).

The 2012 AGB 2.2.1.4.2  §4 (PDF page 69) states:

“In the event that there is more than one relevant government or public authority for the applied-for gTLD string, 

   the applicant must provide documentation of support or non-objection from all the relevant governments or public authorities.”

It refers to “STRING” and not “specific geo entity”. I am interpreting it this way:
If somebody wanted to apply for “.oakland” and would explicitly recite that they target the city community of Oakland in Iowa (1,500 people) then that applicant would obviously need a letter of non-objection from Oakland in Iowa. But as AGB 2.2.1.4.2  §4 states “must provide documentation of support or non-objection from all the relevant governments or public authorities” I would say that the applicant needs also letters of non-objection from OTHER cities “Oakland” – e.g. “Oakland in California” (a real big city – really rich, too).

Reason I am bringing this up:
It can’t be that profiteers acquire a letter of non-objection from some “tiny place” that calls itself “city” – when in reality of course hopes that the residents of the BIG CITY will register domains!

Thanks,

Alexander

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