[Gnso-newgtld-wg] Thoughts on PICs / RVCs (LONG NOTE)

McGrady, Paul D. PMcGrady at taftlaw.com
Fri Dec 11 12:12:08 UTC 2020

Hi All,

Well, clearly these are brand new ideas from Kathy that have never been discussed by the working group or put out for public comment.  We have no time to consider the merits (if any) of  such sweeping changes to the entire ICANN ecosystem with exactly one substantive call left.  Additionally, the sweeping changes are unnecessary as even a casual review of the Bylaws indicate no issues.  Below is an informal position developed through kicking this around on a recent IPC call (it can’t be considered a formal position, since the sweeping, last minute ideas were introduced with no time left in the PDP timeline to respond to them formally).  We hope this is helpful.


1. ICANN can enter into and enforce PICS in service of its Mission.   1.1 (d) B (iv) “(iv) ICANN shall have the ability to negotiate, enter into and enforce agreements, including public interest commitments, with any party in service of its Mission.”

2. ICANN is not “imposing” rules and restrictions on parties by acceptance of PICs and RVCs.  RVCs don’t constitute “regulation” of any type, much less content regulation.  (refer to history of Accountability Workstream 1 ).  The ByLaws provision re “imposing” rules and restrictions in 1.1 (c)  states as follows: . (c) ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide, outside the express scope of Section 1.1(a). For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority.  This language makes it clear that ICANN does not intend to act as a government regulator.  It does not prohibit adoption and enforcement of PICs.

The ByLaws clearly state that all previously-adopted PICs are in force and may be renewed going forward. See 1.1 (d) which states as follows:

(d) For the avoidance of doubt and notwithstanding the foregoing:
(i) the foregoing prohibitions are not intended to limit ICANN’s authority or
ability to adopt or implement policies or procedures that take into
account the use of domain names as natural-language identifiers;
(ii) Notwithstanding any provision of the Bylaws to the contrary, the terms
and conditions of the documents listed in subsections (A) through (C)
below, and ICANN’s performance of its obligations or duties
thereunder, may not be challenged by any party in any proceeding
against, or process involving, ICANN (including a request for
reconsideration or an independent review process pursuant to Article
4) on the basis that such terms and conditions conflict with, or are in
violation of, ICANN’s Mission or otherwise exceed the scope of
ICANN’s authority or powers pursuant to these Bylaws (“Bylaws”) or
ICANN’s Articles of Incorporation (“Articles of Incorporation”):
(1) all registry agreements and registrar accreditation
agreements between ICANN and registry operators or
registrars in force on [1 October 2016]1, including, in
each case, any terms or conditions therein that are
not contained in the underlying form of registry
agreement and registrar accreditation agreement;
(2) any registry agreement or registrar accreditation
agreement not encompassed by (1) above to the
extent its terms do not vary materially from the form of
registry agreement or registrar accreditation
agreement that existed on [1 October 2016];
(B)any renewals of agreements described in subsection (A) pursuant
to their terms and conditions for renewal;

The fact that even voluntary PICS may be renewed going forward confirms without a doubt that they are not outside of ICANN’s power under the new ByLaws.  Thus, adoption and enforcement of voluntary PICs (RVCs) is not ultra vires.  Unfortunately the recently proposed “guardrails” around the adoption of voluntary PICs and Registry Voluntary commitments would in fact make ICANN a regulator of content, making ICANN the judge of a Registry’s Human Rights compliance and making ICANN (rather than the Registry) the arbiter of whether a particular RVC addresses content.  In other words, the guardrails proposed increase the danger that ICANN would be acting as a content regulator.

3. No revision to the ByLaws is necessary for ICANN to accept and approve the PICs and RVC policy developed by the WG.  The ICANN ByLaws clearly state in the Mission section that the PDP process acts as a “guiding light” in  the development of policy that relates to ICANN’s Mission.  Current ByLaws Section 1.1. (a) states:
Specifically, ICANN:
(i) Coordinates the allocation and assignment of names in the root zone
of the Domain Name System (“DNS”) and coordinates the
development and implementation of policies concerning the
registration of second-level domain names in generic top-level
domains (“gTLDs”). In this role, ICANN’s scope is to coordinate the
development and implementation of policies:
• For which uniform or coordinated resolution is reasonably
necessary to facilitate the openness, interoperability, resilience,
security and/or stability of the DNS including, with respect to
gTLD registrars and registries, policies in the areas described in
Annex G-1 and Annex G-2; and
• That are developed through a bottom-up consensus-based
multistakeholder process and designed to ensure the stable and
secure operation of the Internet’s unique names systems.

During its deliberations, the Sub Pro Working Group majority implicitly determined that the recommended system of PICs and RVCs is reasonably necessary to facilitate the openness, resilience, and stability of the DNS.   The policies developed are perfectly aligned with the scope of the Mission and do NOT constitute governmental content “regulation”.  In fact, PICs and RVCs are not about content at all. They are about resolving potential disputes that might otherwise lead to litigation and/or a chilling effect of preventing the launch of a TLD.  This means that the system of PICs and RVCs will serve ICANN’s Mission to preserve and support security, stability, and resiliency.  Furthermore,  all voluntary PICs and RVCs will be open for public comment and super transparent.  ICANN has the power and even a duty to enforce PICs that shore up security, resiliency, and stability as determined via PDP recommendations unless such recommendations are voted down by a 2/3 majority of the Board.  In addition, if RVCs are not entered into and enforced within the ICANN system, transparency is defeated because back room deals can still be made as a matter of private contract law. PICs and RVCs keep these commitments out in the open.

4.  If ICANN is concerned about the burden of enforcement, it can refer RVCs to an independent panel that ICANN does not pay and cannot override, just like UDRP.  The RVC-DRP can be created in a way to allow ICANN to step back from any ICANN.org determination re RVC compliance.



Paul D. McGrady, Partner
Intellectual Property/Trademark/Domains/Privacy/Social Media
Direct: 312.836.4094 | Office Ext: 34094
Taft Office: Chicago

This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Jeff Neuman
Sent: Wednesday, December 9, 2020 8:13 PM
To: trachtenbergm at gtlaw.com; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Thoughts on PICs / RVCs (LONG NOTE)

Thanks Marc.  That may be true (ICANN not wanting to be in that role), but if this is something we believe should happen, then we should state as such.  The issue is that there is no other party that would be in a position to implement the decision.  In other words, if the parties in example 1 (brand owner and applicant) agree in advance that one of the potential remedies for the violation of the voluntary commitment would be an issuance of a letter of breach     (which must be cured) of their registry obligations.  Lets say they also agree that failure to “cure the breach” would result in the loss of the registry.  The only party that would be in a position to “implement” the remedy is ICANN itself.

What are the other options?

[cid:image002.png at 01D6CF84.6AF45B00]

Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>

From: trachtenbergm at gtlaw.com<mailto:trachtenbergm at gtlaw.com> <trachtenbergm at gtlaw.com<mailto:trachtenbergm at gtlaw.com>>
Sent: Wednesday, December 9, 2020 8:20 PM
To: Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: RE: Thoughts on PICs / RVCs (LONG NOTE)


With respect to your use cases, I don’t think ICANN will be receptive to 1.f and 2.d (i.e. that they implement the decision by the independent third party) as that just opens up ICANN to potential disputes and litigation.

Best regards,

Marc H. Trachtenberg
Chair, Internet, Domain Name, e-Commmerce and Social Media Practice
Greenberg Traurig, LLP
77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
T +1 312.456.1020
M +1 773.677.3305
trac at gtlaw.com<mailto:trachtenbergm at gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/>  |  View GT Biography <https://www.gtlaw.com/en/professionals/t/trachtenberg-marc-h>

[Greenberg Traurig]

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Jeff Neuman
Sent: Wednesday, December 9, 2020 2:23 PM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Thoughts on PICs / RVCs (LONG NOTE)


I know there have been a lot of e-mails on this subject in the last week or so.  I wanted to give you some perspectives that we discussed at the leadership level to see if we can find some common themes and then we can see if any language in our report needs to change (which I am not convinced there will need to be substantial changes).  This is my (Jeff Neuman) summary to move the discussion along.

So, here is where I think we are on principles:

  1.  Existing PICs used as PICs in New Registry Agreements:  We believe that the existing PICs – worded substantially the same as they were in 2012 – are ok under ICANN’s Bylaws as they are specifically “grandfathered” in.

  1.  Domain Name Eligibility Rules:  We all seem to be on the same page that eligibility rules for the registration/renewal (but not necessarily usage) can be included in PICs/RVCs under ICANN Bylaws.

  1.  Voluntary Registry Commitments:

     *   Commitments made by Registries without ICANN Enforcement

                                                    i.     Registries and Registrars have reserved their rights to take down domain names for phishing, pharming, malware, and other forms of domain name abuse.  With respect to Registries, some have built these directly in as PICs while others have just built this into their Registry-Registrar Agreements (and some do both).  These types of PICs / RVCs do not seem to present any issue under the ICANN Bylaws (in our view).

                                                   ii.     We also believe that it is fairly common for registries to have policies that allow them to take down any domains used in connection with illegal activity, child exploitation, fraud, the sale of illegal pharmaceuticals, etc.

                                                  iii.     Because these do not require ICANN enforcement, we see no reason how or why this would present an ICANN Bylaw issues.  Conversely, we see no reason why we (through a PDP) would have any ability to restrict the ability of a registry to impose these types of commitments on their registrants (through registrars or directly).  So while we appreciate Kathy’s concern about a Registry’s ability to take down domain names, we do not believe that we are in a position to either require registries to take down names based on content or to prohibit them from doing so either.  Both could be considered forms of regulation (imposing rules on what a registry has to do or what it may not do).

                                                  iv.     Real Example Today.  .gay.  The Registry Operator for .gay (Top Level Design) want to have a safe space for the LGBTQ community.  That community, as most of you know, has historically been the subject of hate speech, violence, bullying, etc.  Having a safe space for the gay community according to the registry is its differentiator and is absolutely necessary.  It has an incredibly strict Rights Protections Policy (https://www.ohhey.gay/gay-cares<https://urldefense.com/v3/__https:/www.ohhey.gay/gay-cares__;!!DUT_TFPxUQ!Qi5DM39VSsHFTOKBE-yGg52J_tO_YfjEOO0qejDn038YnywJTzDpdsi_SJ9GdXiBe6A$>) that prevents Registrants from (i) inciting or promoting violence against others, (ii) Bullying, engaging in cyber bullying or inciting others to bully, (iii) Harassing, or encouraging others to harass or harm others, (iv) Stalking, (v) Abusive intent to cause fear or threaten violence, (vi) Hate Speech, (vii) Or activity intended to organize, coordinate, or otherwise enable one of the above.  It also reserves the right to take down any sites that do any of the above at its sole discretion.

     *   Commitments made by Registries that may require ICANN Enforcement in some capacity

Some Registries will want to make voluntary commitments in response to public comments, Government early warnings, objections, GAC Advice, etc. We do not see an issue with having these commitments reflected in Registry Agreements even if they fall outside of ICANN’s core mission IF in the case where the commitment does not fall within ICANN’s mission, neither ICANN itself nor any third party under ICANN’s control is involved in the decision as to whether the commitment itself has been violated.  Where an independent third party finds a violation of the commitment, ICANN should be able to rely on that third party decision and enforce a pre-arranged contractual remedy, which could include sanctions and/or termination of the Registry Agreement.

Examples / Use Cases:

1.      If an Applicant applies for the TLD “.dictionarywordthatisalsobrandx” and Brand X objects to the application.  Applicant agrees with Brand X that it will not use the TLD in an infringing manner to Brand X.   In exchange for that Agreement, Brand X agrees to drop its Objection IF the Applicant agrees to put this commitment into its Registry Agreement in the form of an RVC.

a.      As a PDP Working Group we have often said that it is our preference for disputes, objections, etc. to be worked out between the parties where this is possible.  This is in line with our desire to see future expansion of the TLD space and encourage innovation and competition.

b.      As a result, this type of private resolution should be encouraged.

c.      The question, however, is whether ICANN could enforce this commitment.

d.      After our discussions with the ICANN Board liaisons and the comments we received by the community, the real concern was that ICANN did not believe it could be put in a decision to make these types of decisions (namely in this case whether Applicant’s use of the TLD violates its commitment to Brand X).

e.      If the Applicant and Brand X agree that any disputes involving their “settlement” are resolved by an independent third party (not ICANN) and the costs are borne by the parties (as opposed to ICANN), this should not present a problem.

f.       If ICANN implements the decision by the independent third party (which the Applicant agreed in its Registry Agreement to allow ICANN to do), this too should not present a Bylaws issue.

g.      The key point here is that ICANN itself is not imposing the restrictions on the Applicant and therefore should not be violating its own Bylaws.

2.      What if an Applicant applies for .ideaexchange?  The Applicant wants to run the TLD as a place where registrants can put their open source ideas on the Internet and allow others to use their ideas in connection with whatever they want.  Comments are filed by businesses, governments, intellectual property owners and others concerned that this will be a space where users will exchange intellectual property that they do not own.  Lets also assume that the Independent Objector files an objection as well.  Assume Applicant never intended that and agrees that it will have a policy whereby Registrants agree that they will not use the TLD to distribute any intellectual property that is not owned by them.  And the Applicant also reserves the right to take down any names that use the TLD in violation of this policy.  To resolve the comments filed by governments, businesses, etc., the Applicant voluntarily agrees to have an RVC that states this policy and the takedown processes.  Each of the commenters and the Independent Objector agree that this would settle the matter and if documented in the Registry Agreement, they would drop their challenges.

a.      We believe that having these comments resolved in an amicable manner should be encouraged.

b.      Because this new policy has to be documented somewhere, the only real place it can be documented is as an RVC in the Registry Agreement.

c.      ICANN should not be the arbiter of whether there is a violation of this policy. This would certainly arguably be beyond its mission.

d.      However, if the arbiter of any disputes is an independent third party, not paid by ICANN, etc., then this would seemingly be ok even if it is agreed by the Applicant to follow the third party decision and to allow ICANN to impose the appropriate remedy.

Bottom Line:  I believe that so long as ICANN is not the ultimate decision maker in whether a policy that may arguably be outside of its mission, there should be no issues with having new PICs and/or Registry Voluntary Commitments.  If this indeed is the case, then we would just need to add a recommendation that (a) independent third parties must be used to resolved any potential violations of the PICs / RVCs, and (b) Applicants would need to agree in a Registry Agreement to be bound by the decision of the third party and to allow ICANN to impose sanctions / penalties.

[cid:image004.png at 01D6CF84.6AF45B00]

Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>

If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster at gtlaw.com<mailto:postmaster at gtlaw.com>, and do not use or disseminate the information.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20201211/73a6a804/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 12607 bytes
Desc: image002.png
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20201211/73a6a804/image002-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 17689 bytes
Desc: image003.png
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20201211/73a6a804/image003-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.png
Type: image/png
Size: 9604 bytes
Desc: image004.png
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20201211/73a6a804/image004-0001.png>

More information about the Gnso-newgtld-wg mailing list