[Gnso-newgtld-wg] Finishing up PICs

McGrady, Paul D. PMcGrady at taftlaw.com
Thu Dec 17 20:08:32 UTC 2020


I agree with Jeff.  It is very late in the process (too late) to be introducing these so-called guardrails.  If the guardrails are the Bylaws, as Kathy suggests, there is no need to include them because the Bylaws are in place and nothing this WG does can change the Bylaws.  If the so-called guardrails are not already in the Bylaws, we just don’t have time to entertain sweeping ideas like these introduced at 11:59:59 in the process.

As for Jeff and Cheryl’s legacy, all I will say is that I am confident their legacy is sound and their intense work over these years is appreciated.


From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Kathy Kleiman
Sent: Thursday, December 17, 2020 1:40 PM
To: Jeff Neuman <jeff at jjnsolutions.com>; Kathy Kleiman <kathy at kathykleiman.com>; gnso-newgtld-wg at icann.org; langdonorr at gmail.com
Subject: Re: [Gnso-newgtld-wg] Finishing up PICs

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 -----
"Jeff Neuman" <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>

"Kathy Kleiman" <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>, "gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>" <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>, "langdonorr at gmail.com<mailto:langdonorr at gmail.com>" <langdonorr at gmail.com<mailto:langdonorr at gmail.com>>

Thu, 17 Dec 2020 19:10:50 +0000
RE: Finishing up PICs


***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.

a.      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.

b.      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: +1202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>

From: Kathy Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>
Sent: Thursday, December 17, 2020 1:43 PM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>; Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>; langdonorr at gmail.com<mailto:langdonorr at gmail.com>
Subject: Finishing up PICs


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

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