[Gnso-newgtld-wg] Finishing up PICs

Thu Dec 17 19:39:54 UTC 2020

Jeff,The Guardrails are the Bylaws.  Pure and simple. They are
ICANN's commitment to stay outside of content (Bylaws 1.1) and operate
consistent with internationally recognized human rights (Bylaws 1.2)
and respect the policy procedures in which we all engage (in which
this PDP WG operates). As an individual you have fought long and hard
for the private PICs which you created for .BIZ when you wored at
Neustar. I know you worked hard for your former employer.  But the
2016 Bylaws and the .ORG battles commit ICANN to a higher standard. 
We are bound by that standard. We have talked about that standard, and
our Bylaws, at length. We have heard from our Board liaisons that they
are worried on this issue. They told us that ICANN cannot enforce that
which does not fall under its mission.  That is true We are very
close. I'm asking us to tie up one last loose end. But it's an
important one.  The vast, vast majority of all of the private
PICs/RVCs we want to protect fall under the Guardrails - the hundreds
of  GAC early warnings from Round 1, the GAC Advice from Beijing, the
settlement of Community Objections in Round 1 (I did one; maybe the
only one then).I want your legacy and that of Cheryl's to be solid on
this PDP which has lasted so long and where you, and all members, have
worked so hard. Please step back from your deep personal involvement
on this issue. Telling ICANN that the working group says "anything
goes" in RVCs is not true, and not right. We are all bound by ICANN's
2016 Bylaws.  None of us is above the law; we are not above the
Bylaws. This seems like a pretty easy fix, Jeff. Best, Kathy-----
Original Message -----
From: "Jeff Neuman" 
To:"Kathy Kleiman" , "gnso-newgtld-wg at icann.org" ,
"langdonorr at gmail.com" 
Cc:
Sent:Thu, 17 Dec 2020 19:10:50 +0000
Subject:RE: Finishing up PICs

	Kathy,

	***View as the Co-Chair - I do not believe the guardrails you have
proposed have support within the working group.  The rules/guardrails
you have proposed represent a drastic departure from what the Working
Group has discussed, that I do not believe it is realistic to think
that they can be adopted at this point.   Other members of the
Working Group have supported the PICs and RVCs and have also supported
the notion that they can be done in compliance with the Bylaws
provided that we do not put ICANN in the position of determining
whether any content based commitment was actually violated.  That
adjudication may be beyond the scope of ICANN’s mission.  But if
the actual adjudication is done by a third party and the registry
agrees to be bound by the decision of that unrelated third party, then
the Working Group members have weighed in that this seems in line with
the Bylaws.

	We will discuss this further.

	__________________________

	****Personal View Follows**** Taking Co-Chair hat off – the
following represents only my opinion.  If the Working Group takes an
opposing view, then as co-chair I will follow that.

	* I personally disagree with the overbroad guardrails.  Take the
.gay registry as an example.  The .gay registry has a very tight
anti-bullying / anti-harassment policy and reserves the right to take
down sites that it finds violating that policy.  Their goal is to
present a safe space where a group of people that have historically
been (and in a lot of cases still are) the subject of persecution,
discrimination, harassment and bullying. The registry wants a space
where its registrants and end users feel safe to belong, participate,
celebrate, and just be themselves.  If they want to commit to a
content based policy, then who are we to tell them that they cant.

	* I believe I was at that American University event, and even
explained then that registries aim to make TLDs a brand.  If they
want to have policies that distinguish their TLDs from others, even if
related to content, then why should they be forbidden from doing so. 
I think I raised the example of Anti-abuse policies.  When Neustar in
2008 or 2009 (when I was there) adopted an anti-abuse policy stating
it would take down names using for phishing, pharming, malware, etc.,
it did so because it was starting to appear on ISP block lists for not
taking that action.  Legitimate registrants were having their e-mails
blocked because the registry wasn’t taking action.  The .biz brand
was taking a huge dip  We made the bold decision and actually became
the first registry to adopt an anti-abuse policy addressing these
behaviors.  I believe the EFF and others made the same arguments you
were making.  But the registry cleaned up its act, got taken off
block lists and became (at the time) one of the safest TLDs.  The
brand became more respectable and registrants emails were again
getting through.    Over time, you, the EFF and others came to
accept anti-abuse monitoring and now it is employed by virtually every
registry and registrar.

	Jeffrey J. Neuman

	Founder & CEO

	JJN Solutions, LLC

	p: +1.202.549.5079

	E: jeff at jjnsolutions.com [1]

	http://jjnsolutions.com

	FROM: Kathy Kleiman  
SENT: Thursday, December 17, 2020 1:43 PM
TO: gnso-newgtld-wg at icann.org; Jeff Neuman ; langdonorr at gmail.com
SUBJECT: Finishing up PICs

	 All, 

	 Let’s remember that this is a contract between ICANN and the New
gTLD Registries.  It is not a Registry-Registrar Agreement or a
Registrar-Registrant Agreement.  Accordingly, everything in it must
be legit under ICANN’s Bylaws. We want our ICANN Board Members,
including Becky, to sleep at night.  

	 To do so, terms that are put into an RVC must fall within terms to
which ICANN, as a signatory to this contract, must agree. Again, this
is *ICANN’s contract.* There are many things we would not put into
the vPICs/RVCs therefore, even though they may happen. Like some
cooperation with local law enforcement and providing data on users and
use. It may happen; it’s not in our contracts or blessed or enforced
by ICANN. 

	 Accordingly, to the end of Recommendation 9.12, we must add
something about the requirements of the RVC.  A registrant cannot be
required to paint the moon pink, and the PICs should not be allowed to
push ICANN outside its mission, mandate, scope and core values. These
are ICANN commitments to all of us, and to the world, in its Bylaws.
_Accordingly we must add:  RVCs will not address the contents of
websites or apps that use domain names, they will be consistent with
ICANN’s Human Rights Core Value, they will not allow the registry
arbitrary discretion to suspend a domain name, and they will not be
used to create new policies that did not come through ICANN processes.
  _

	 These limitations are substantive – they will keep the RVCs within
the bounds of what ICANN is allowed to sign and what ICANN is allowed
to do.  The Attorney Generals do not want to see a spate of new
contracts from California public interest corporation coming without
principles and guardrails for what one party, in its self-interest,
can impose on other parties, particularly those who are weaker – a
registry imposing arbitrary and unfair terms on its registrants (note:
unfair RVCs _did not, _in Round 1, come through the public processes
we are working hard to protect, including GAC Early Warnings, GAC
Consensus Advice, and settlements of Objections e.g., Community, Legal
Rights, etc).   

	 We need to finish up 9.12 with the additions above.  RVCs will no
longer be the dumping ground or the “kitchen sink” as they were in
2013-2014. This is critical for ICANN’s integrity, and for this I
quote, as I did in my March 11, 2020, CircleID article: Becky Burr,
then and still an ICANN Board member, speaking in her personal
capacity at an event at American University Washington College of Law
in February 2019, ICANN and New gTLDs, DESCRIBING THE ROUND 1 PRIVATE
PIC PROCESS: "_I HOPE WE NEVER SEE ANY LIKE THAT [AGAIN]", "THE
PROCESS BY WHICH THAT HAPPENED WAS APPALLING," "AND MOST REGISTRIES
AND REGISTRARS WERE APPALLED BY THAT PROCESS AS WELL." "A SUBSET OF…
REGISTRY APPLICANTS CAME IN AND MADE ... COMMITMENTS THAT WERE LIKE,
LITERALLY, EVERYTHING IN THE KITCHEN SINK."_  [emphasis added]

	 NO MORE “KITCHEN SINK,” AND WE’RE DONE.   

	 Best, Kathy

Links:
------
[1] mailto:jeff at jjnsolutions.com

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