[council] Fwd: Draft Framework for Closed Generic gTLDs

Fri Jun 9 16:32:37 UTC 2023

Many thanks, Sebastien and special thanks to John for leading this
process.  Clearly a great deal of work has been done and a great deal of
thought has gone into the discussions.  Also thanks to staff for the very
careful and detailed documentation.

I have three "10,000 foot view" initial observations regarding this work:

(1) There are aspects of the description of what constitutes a "closed
generic" that strike me as a possible intent to apply this framework to
strings which actually represent strings with eligibility requirements
rather than strings which are truly "closed".  In other words, is there a
way to clarify that an application for a string which merely contains
eligibility requirements - e.g professional licensing requirements - is not
an application for a "closed generic" but fits in the "safeguard"
category?    In other words, is it clear that the existence of eligibility
requirements in an application does not make the applied-for string a
"Closed Generic"?

(2) The framework states that if it is not agreed, no policy work will
ensue and the ICANN Board will need to decide on the policy for Closed
Generics.  This would require the ICANN Board itself to set a definition of
"Closed Generics" and would also open ICANN to considerable risk in
relation to potential Accountability Mechanism procedures alleging
violation of the ByLaws.  Examples are:

(a) ICANN says there is no MSM policy on Closed Generics and finds that
they are not in the global public interest if no public interest policy
guardrails exist.  Applicants for Closed Generics (including those already
suspended from the 2012 round) file Request for Reconsideration on the
grounds that Applicant's Human Rights for freedom of expression and
property rights have been violated.  (This has already been mentioned in
Council.)

(b) ICANN Board votes to override GAC Advice and says Closed Generic
applications are permitted based on the underlying principle of the new
gTLD program of Applicant Freedom of Expression.  Representatives of end
users file Request for Reconsideration on the grounds that ByLaws are
violated because individual registrant Freedom of Expression (Article 19)
is restricted and the policy is anti-competitive and therefore not in the
Global Public Interest.

The above considerations are one of the reasons I have asked for a more
thorough discussion on the Human Rights template documents.  In this
regard, I believe that any EPDP on Closed Generics will have to make a
finding that the policy does not violate the ICANN ByLaws - e.g. in
relation to the Human Rights Core Value - or get legal advice to that
effect. It's clear that without that type of finding, the Board will have
risk management concerns over Accountability procedures - as they currently
do in relation to Registry Voluntary Commitments.

 (3) As written, it appears the Closed Generic framework has the potential
to hold up the next round.  I believe a better approach would be for the
community to
(a) clarify that specifying  legitimate eligibility requirements for a
generic string is not the same thing as applying for a "closed" generic.
(b) ask the Board to authorize proceeding to the next round while MSM
policy work on truly "Closed" generic applications continues in the form of
an EPDP (as recommended by Council Leadership) with applications for Closed
Generics suspended until such policy work is complete.  When the EPDP is
complete, there would be new AGB provisions that would apply to new
applications for Closed Generics and existing applications would need to be
amended to fit those requirements.

Looking forward to further discussion.  See you all Sunday!
Thank you,
Anne

Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso at gmail.com

On Fri, Jun 9, 2023 at 6:42 AM Sebastien--- via council <
council at gnso.icann.org> wrote:

> Dear Council Colleagues,
>
> Please find the draft framework on closed generics as received last night.
>
> Please review as it will be part of our discussions on Sunday.
>
> Kindly,
>
> Sebastien Ducos
> GoDaddy Registry / Senior Client Services Manager
> Level 8, 10 Queens Road, Melbourne, Australia VIC 3004
> Office: +61 3 9886 3710 Mobile: +61 449 623 491 / registry.godaddy
>
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> ------------------------------
> *From:* Melissa Peters Allgood <melissa.allgood at icann.org>
> *Sent:* Thursday, June 8, 2023 11:11 pm
> *To:* Sebastien Ducos <Sebastien at registry.godaddy>; DiBiase, Gregory <
> dibiase at amazon.com>; John McElwaine <john.mcelwaine at nelsonmullins.com>;
> Jonathan Zuck <JZuck at innovatorsnetwork.org>; Maureen Hilyard <
> maureen.hilyard at gmail.com>; Joanna Kulesza <jkuleszaicann at gmail.com>
> *Cc:* Mary Wong <mary.wong at icann.org>; Christian Wheeler <
> christian.wheeler at icann.org>
> *Subject:* Draft Framework for Closed Generic gTLDs
>
> Caution: This email is from an external sender. Please do not click links
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>
>
> Hello,
>
>
>
> On behalf of the participants of the Closed Generics Dialogue, I am happy
> to share the attached Draft Framework for Closed Generic gTLDs. There are
> two sessions scheduled at ICANN77 for community consultation, discussion
> and feedback.
>
>
>
> Many thanks,
>
> Melissa (on behalf of the Policy staff support team)
>
>
>
>
>
> Melissa Peters Allgood
>
> Conflict Resolution Specialist
>
> Internet Corporation for Assigned Names and Numbers (ICANN)
>
>
>
> Telephone:  +1 202 570 7240
>
> www.icann.org
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