[Gnso-newgtld-wg] Current Thinking on Closed Generics

Sun Jul 26 14:47:52 UTC 2020

Alex,

Just to clarify, while I agree that ICANN's mission includes a public interest aspect, and in particular ensuring that the policy-making process ascertains the public interest and Introducing and promoting competition in the registration of domain names where beneficial to the public interest, that this does not mean that every aspect of ICANN policy must be in the public interest.  It also doesn't mean that every string must be in the public interest. I have never heard anyone say this before and have only heard  people say this in connection with closed generics.  Are fully open strings necessarily in the public interest? I could argue that they are not as they are subject to use for DNS abuse, fraud, criminal acts, etc.

Also, taking this public interest mandate to its logical extreme that would mean that any changes or restrictions on registration or use of a string must also be in the public interest, but I have never heard anyone suggest that this should be the case.

Similarly, if this public interest mandate applies to every aspect of ICANN policy what about things like the RRA and RA - must these and are these in the public interest? I have never heard anyone argue that they are required to be due to ICANN's public interest mission or the public interest aspects of the bylaws.  I could argue that these contracts are not in the public interest not in many ways.

Finally, even the public interest aspect ICANN's mission statement in the bylaws has carveouts/exceptions/limitations on when things should be in the public interest, including "where [it's] practicable" and as we have argued (and as evidenced by responses on this list), a public interest test for closed generics is not practicable.

Best regards,

Marc H. Trachtenberg
Shareholder
Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
Tel 312.456.1020
Mobile 773.677.3305
trac at gtlaw.com<mailto:trac at gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/>

[Greenberg Traurig]

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Alexander Schubert
Sent: Sunday, July 26, 2020 8:16 AM
To: gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Current Thinking on Closed Generics

*EXTERNAL TO GT*
Hi Jeff,

We had literally years of discussion about closed generics. Only recently we "suddenly discovered" (or agreed on)  that indeed ICANN (through its bylaws) has clearly tied the expansion of the DNS to a public interest goal.
I suggest that we quote the relevant passages of the bylaws which clearly mandate a public interest goal:

Section 1.2. COMMITMENTS AND CORE VALUES
(b) CORE VALUES

(ii) Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent;

(iv) Introducing and promoting competition in the registration of domain names where practicable and beneficial to the public interest as identified through the bottom-up, multistakeholder policy development process;

Especially Section 1.2 (b)(iv): "Introducing and promoting competition in the registration of domain names where practicable and beneficial to the public interest..."

For the longest time there was a lot of confusion around this question and some in this WG even clearly questioned whether the new gTLD program was in fact tied to any public interest goal at all. I feel it is our duty to point this finding out - as we ourselves did not know till recently. Unless of course somebody thinks we aren't bound to the bylaws.

I would also like that we clarify whether or not the Kurt Pritz group proposal eliminates SPEC13 altogether (what would be the purpose of Spec 13 if we decide that any string can be applied for as closed gTLD?). So in case Spec 13 becomes superfluous with that proposal: we clearly have to state that as SPEC13 is a huge portion of our policy - and would just simply go away. At least that's my understanding.

We in this WG couldn't come up with any consensus. The likelihood that the community does it kind of zero in my mind. So in the likely event that the comment period doesn't clarify positions: what then? We continue to not address the issue?

Here my suggestion: We have to suggest something to the community. We have nothing as of right now. At bare minimum we could voice agreement on the fact that the ICANN bylaws are clearly binding the new gTLD program to a public interest goal. That such public interest goal will of course remain in place even if we fail to suggest concrete policy advice. That all applicants who potentially plan to apply for closed generics:

  *   Are aware that it didn't work out in 2012
  *   That there is no evidence whatsoever that GAC's or the board's position in this regard has changed at all (can we get a current position on this?)
  *   That there is an agreement within the GNSO WG that indeed closed generics will have to follow a public interest goal (subject to interpretation)

If some applicant assumes that their ".genericterm" application will serve the public interest then they stand the risk that GAC, the community or the board disagree. I want that applicants (the digital branding departments of big corporations) are at least aware (and their consultants have to make them aware) that just because closed generics aren't governed you can't expect to get such application confirmed without problems.

Thanks,

Alexander

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Jeff Neuman
Sent: Samstag, 25. Juli 2020 19:30
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Current Thinking on Closed Generics

All,

I wanted to throw something out for consideration by the group in the interests of getting to the draft final report.  We are already a week or two behind and I am worried that we could get much further behind and ultimately not meet our end of year date.  So, I am laying this out on the line as a proposal.  This is not a definitive plan, but something to think about.

  1.  For the Draft final report, we state that there is No Agreement on the issue of Closed Generics and keep the paragraph in the draft the way it is today.
  2.  In addition to the text that is already in there, we now have two proposals, one from George et al., and one from Kurt, et al.  What if we give everyone an additional week to come up with any proposals on Closed generics they would like to float out for public comment.
  3.  We publish those proposals for public comment being very specific that they are individual proposals and do not have any level of support within the working group.  We may even not want to attach names to the proposal so as to try not and bias the comments we get in.  We can of course discuss this last point.
  4.  We solicit comments on all of the proposals.
  5.  While the public comment period is going on, we continue to discuss the proposals as a Working Group to see if we can reach any sort of consensus on this issue.
  6.  We make it very clear in our report that absent reaching consensus within the Working Group on any of these proposals, taking into consideration public comments of course, that in the final report, we will go with the language that is in the Draft Final Report (without any of the individual proposals); namely, No Agreement.

Why do this?

  1.  We need to be realistic with ourselves as well as the community that to date there is no agreement on how to move forward.
  2.  We also need to give the community a chance to look at the various options people in the working group have proposed so that they can think about these as well (regardless of whether one group of people like it or not).
  3.  At the end of the day, we will need to demonstrate to the GNSO Council and the Board that we attempted every possible way to reach consensus on a compromise.
  4.  And finally there are 40+ other topics that we have come to some sort of final resolution on and there is no reason to delay everything even more for these last few issues.

What does this mean for us?

i)                    On the call on Monday, we will discuss this path of moving forward.

ii)                   This means that we do not need to use up time on the call discussing the two existing proposals for which I am sure we could spend hours going back and forth and likely end up on Monday exactly where we are now.

iii)                 It also means that others have a week to submit their own proposals.  I personally have some ideas that I may put into a proposal that I may submit (not as a co-chair, but personally speaking).   This may give us another reason to not attach names to the proposals so that if I submitted a proposal it wouldn't be associated with the "co-chair".

iv)                 We work on finalizing the draft report sections on Predictability and Mechanisms of Last Resort this week as well as the Preamble and "Cant Live With" Package 7.

v)                   This would enable us to stay only a week or to behind.

Thoughts?

[cid:image003.png at 01D66331.C6EBFC70]

Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
https://urldefense.com/v3/__http://jjnsolutions.com__;!!DUT_TFPxUQ!X9Skxw1oBJrhtp1zI_NRGhwXvrUK6ys7-5NcBWwWBSH7Khkz2qkTc_-QxumMT-xRoqyXDw$ <https://urldefense.com/v3/__http:/jjnsolutions.com__;!!DUT_TFPxUQ!VTb-D9lHHFcJIPHctmD0ytjRHV4xkVROKkLkK3aNyd43bC8zKgsoOj1Ydv6ZTiEEVsI$>

----------------------------------------------------------------------
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, 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/20200726/bff25cf9/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 6399 bytes
Desc: image002.jpg
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20200726/bff25cf9/image002-0001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.png
Type: image/png
Size: 113 bytes
Desc: image004.png
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20200726/bff25cf9/image004-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 14101 bytes
Desc: image003.png
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20200726/bff25cf9/image003-0001.png>