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[council] FW: Rec6 CWG Response to the Board Request

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  • Subject: [council] FW: Rec6 CWG Response to the Board Request
  • From: Margie Milam <Margie.Milam@xxxxxxxxx>
  • Date: Tue, 11 Jan 2011 10:36:44 -0800
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  • Thread-topic: Rec6 CWG Response to the Board Request

Dear Councilors,

For your information and discussion at Thursday's Council meeting, please find 
below the Rec6 CWG's response to the Board related to the CWG Rec6 Report.

Best Regards,


Margie Milam
Senior Policy Counselor

From: Gomes, Chuck
Sent: Friday, January 07, 2011 6:16 PM
To: 'Peter Dengate Thrush'; John Jeffrey
Cc: Kurt Pritz; Cheryl Langdon-Orr; Frank March; Heather.Dryden Dryden
Subject: Rec6 CWG Response to the Board Request

<<Rec6 CWG Response 010711 Final.doc>>


Please find attached and copied below the New gTLD Recommendation 6 Community 
Working Group (Rec6 CWG) response to the request from the ICANN Board in its 10 
December 2010 meeting in Cartagena.

Chuck Gomes, Co-Chair, Rec6 CWG

3108 Ponte Morino Drive, Suite 117, Cameron Park , CA 95682

Office: +1 530 676-1100; Mobile: +1 703 362-8753

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7 January 2011

Mr. Peter Dengate-Thrush


ICANN Board of Directors

cc:     John Jeffrey, ICANN Secretary

Re:     Rec6 CWG Revised Recommendations and Clarifications

Dear Peter:

This correspondence is a formal response to the ICANN Board's Cartagena 
Resolution (2010.12.10.21) requesting that the Rec6 CWG provides its final 
written proposal with regard to three specific issues by 7 January 2011.

The Rec6 CWG hereby submits the following clarifications for the Board's 
consideration.  Note that the three areas for which clarification was requested 
in the Board motion are shown in bold font followed by the CWG responses in 
normal font.  In addition, the CWG added a fourth area of comments at the end 
that also has a header in bold font and is submitted for possible Board 

(1)     The Roles of the Board, GAC, and ALAC in the Objection Process

With regard to the first issue (the roles of the Board, GAC, and ALAC in the 
objection process), we need to provide clarification regarding the 
circumstances under which the CWG suggests that the Board would vote regarding 
an application that is subject to a Rec6 Objection:

-       clarify the circumstances under which the Board would vote with regard 
to an Rec6 objection and/or with gTLD applications generally,

Based on the written responses to the pre-Cartagena questions from the ICANN 
staff, as well as the various discussions during the Cartagena meeting, the CWG 
has recommended that the Board would have to specifically approve any 
recommendations from third party experts to reject a TLD application based on a 
Recommendation 6 objection.  The CWG has not suggested, however, that the Board 
be required to take a vote on specific Recommendation 6 objections where the 
third party experts reject such an objection.  Nor did the CWG suggest that the 
Board be required to approve every new gTLD string.


-        if there is consensus on it, clarify the intended role of the expert 
panel (i.e., dispute resolution provider, mediator, advisor or other).

A consensus of the CWG recommended that the ICANN Board may "contract 
appropriate expert resources capable of providing objective advice."  The CWG 
did not recommend that the Board should be a trier of fact or should hear in 
the first instance every Rec6 objection with a requirement that it should make 
a determination on the merits in every case.

The CWG did not reach consensus over the actual form or weight of the expert 
advice (e.g., whether the expert panel should be a dispute resolution provider, 
mediator or advisor).  Some members of the CWG take a broader definition of 
dispute resolution panel than others.  Some members think that the experts 
should not hear from the objector and the applicant at all - whether in a trial 
setting or written advocacy - others disagree and support an adversarial 

There was Strong Support, but not Consensus, that the experts should be able to 
look at the context of the application or applicant in evaluating a 
Recommendation 6 objection - others disagree and believe that the experts 
should conduct their analysis on the basis of only the string.

While the CWG did not reach consensus on these issues, it did explicitly remove 
all reference to the specific term "dispute resolution" in its recommendations, 
and made no requirement that the experts engage in an adversarial process 
between applicant and objector.

Furthermore, the CWG did achieve Strong Support (though not Consensus) for not 
calling the evaluation process one of "dispute resolution," and requiring that 
the experts' skills be in legal interpretation of instruments of international 

(2)     The Incitement to Discrimination Criterion

With regard to the incitement to discrimination criterion, we need to confirm 
the specific language revisions the CWG requests with regard to the "incitement 
to or promotion of" portion of the criterion.   After the discussion in 
Cartagena, does the CWG continue to request that the standard be "incitement 
and instigation" or is some other language preferable?   In addition, the CWG 
could also state whether it still believes that the standard should be expanded 
to include the list of additional discrimination grounds that were referenced 
in the CWG Report:-

*     CWG to confirm the specific language requested with regard to the 
"incitement to or promotion of" term in the original standard.  After the 
discussion in Cartagena, does the CWG continue to request that the term be 
"incitement and instigation" or is some other language preferable?

In its report dated 21 September, 2010, the CWG recommended that "incitement 
and instigation" be used in the criteria for discrimination.  In ICANN's 
explanatory memorandum on this issue dated 12 November 2010, it provided a 
rationale of why "incitement to or promotion of" is a more appropriate 
standard.  Based on the ICANN response, the discussions in Cartagena during 
which several CWG members stated that they no longer agree with the 
recommendation, and some admitted confusion over the legal impact of the word 
choice; we recognize that these terms may have well-defined, but possibly 
varied meanings in different courts. Overall, however, these are terms that are 
widely used in the international law and international criminal law context. 
The substantive difference between 'incitement to and promotion of' and 
'incitement and instigation' concerns the bar that we wish to set; in the first 
instance this bar is lower, whilst in the second the bar is substantially 
higher. The CWG may no longer have a consensus on this issue.  As such, expert 
clarification should be made to the Board on the varying interpretations of the 
different criteria.

With that said, many members of the CWG still argue that a higher standard than 
"incitement to or promotion of" would be appropriate.

*      the CWG needs to reiterate consensus on the standard including an 
expanded list of additional discrimination grounds that were referenced in the 
CWG Report.

Two consensus recommendations of the CWG were to extend the list of potential 
discriminations also to include discrimination based on age, disability, actual 
or perceived sexual orientation or gender identity, or political or other 
opinion.  The CWG also suggested by a full consensus that such discriminations 
must rise to the level of violating generally accepted legal norms recognized 
under "principles of international law."  As such, any additional 
discriminations listed in the second prong still must be found to be in 
violation of principles of international law.

We do not believe that recognizing additional discriminations would 
significantly broaden the types of objections brought.  The CWG does not 
believe that any additional research needs to be conducted on whether such 
additional classes are protected under international law today.  It has been 
brought to the CWG's attention that these additional discriminations have some 
protection under international law.  If they are recognized today, then the 
Board and the experts would rely on them.  If they are not at that level yet, 
then they won't.  Importantly, such additional discriminations might become 
more recognized at some future date and the process should be fluid enough to 
take them into account at such time.  The suggestion in Cartagena of a 
catch-all discrimination criteria - such as "any other discriminations that are 
generally recognized under international law" - seems to be acceptable to many 
of the CWG members.  Other CWG members prefer listing all of the 
discriminations suggested by the CWG, or only the catch-all criteria, thereby 
avoiding a sense of prioritization among discriminations.

(3)     The Fees for GAC and ALAC-instigated Objections

With regard to the fees for GAC and ALAC-instigated objections, we need to 
identify what (if any) fees should be charged and where the funds should come 
from, and any other restrictions or additional steps that the CWG suggests for 
dealing with GAC and ALAC-instigated objection:-

*      what fees should be paid by ALAC and GAC (if filing and dispute 
resolution fees are waived, are the number of free objections limited)

*       by what process is an ALAC and GAC objection formed and approved?

A full consensus of the CWG recommended that fees be lowered or removed for 
objections from the GAC or ALAC.  It is the CWG's sentiment that ICANN should 
provide the ACs appropriate funding for such objections if there is a cost to 
object.  In the CWG clarifying document filed just prior to the Cartagena 
meeting, the CWG felt that it was outside its scope to comment on the process 
for the GAC or ALAC to lodge objections.  The CWG assumed that any Rec6 
objections put forth by the GAC or ALAC would be approved according to their 
own internal processes, taking into account accountability and transparency 
principles and consensus-based decision making.

In addition to the above use of the "Community Objection" process by the ALAC 
and GAC and assuming that the Independent Objector (IO) function is maintained 
in the processing of new gTLD Applications, then an alternate pathway for AC 
objections to be considered would be for the IO to take up such formally 
prepared objections from the ALAC and/or GAC and subject them to the same 
standards of check and balances, and transparency and accountability criteria, 
as any other IO instigated objection process as if they were self instigated by 
an AC.

(4)     Other CWG Recommendations Not Specified by the Board

The CWG would like to make another recommendation related to the IO mentioned 
above, although the support of which has not been subject to a formal call of 
its members.  It is a key principle that the IO should operate in a transparent 
and accountable manner, and that appropriate safeguards are in place to ensure 
that it operates in the public interest.  For example, the IO should facilitate 
legitimate Recommendation 6 objections, and neither trigger nor create 
objections entirely on its own that cannot be traced back to any party.  At a 
minimum, there should be at least one party that has claimed publicly that it 
would be harmed by the creation of a TLD before the IO can object to it in an 
effort to reject such an application.  The IO is not meant to facilitate secret 
objections, but should operate with transparency.  The IO should be a tool for 
those who cannot maneuver the difficult objection procedures or for those who 
are not in a position to fund such objections, rather than an opaque means to 
kill a proposed-TLD that otherwise isn't subject to public objection.

Finally, CWG Recommendation 1.2 suggested that ICANN change the name of a 
Recommendation 6 objection from "Morality and Public Order."  While the CWG did 
not achieve a consensus on an alternative name, we do note that the name 
selected in the Proposed Final Applicant Guidebook - "Limited Public Interest 
Objection" was not polled by the CWG and "Public Interest Objections"  was 
ranked only third of five names polled.


Rec6 Community Working Group

Attachment: Rec6 CWG Response 010711 Final.doc
Description: Rec6 CWG Response 010711 Final.doc

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