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

["Tim Ruiz" <tim@xxxxxxxxxxx>]

So is our upcoming discussion now moot?


Tim

> -------- Original Message --------
> Subject: [council] FW: Rec6 CWG Response to the Board Request
> From: Margie Milam <Margie.Milam@xxxxxxxxx>
> Date: Tue, January 11, 2011 12:36 pm
> To: "council@xxxxxxxxxxxxxx" <council@xxxxxxxxxxxxxx>
> 
> FW: Rec6 CWG Response to the Board RequestDear Councilors,
>  
> For your information and discussion at Thursday&#8217;s Council meeting, 
> please find below the Rec6 CWG&#8217;s response to the Board related to the 
> CWG Rec6 Report.      
>  
>  
> Best Regards,
>  
> Margie
> __________
>  
> Margie Milam
> Senior Policy Counselor
> ICANN
> __________
> _____________________________________________
> 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
>  
> Peter,
> 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
> Chairman
> 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&#8217;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&#8217;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 consideration.
> (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.    
> and  
> -        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 
> &#8211; whether in a trial setting or written advocacy &#8211; others 
> disagree and support an adversarial process.  
> 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 &#8211; 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 law.
> (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 
> &#8220;incitement to or promotion of&#8221; portion of the criterion.   After 
> the discussion in Cartagena, does the CWG continue to request that the 
> standard be &#8220;incitement and instigation&#8221; 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 
> &#8220;incitement to or promotion of&#8221; term in the original standard.  
> After the discussion in Cartagena, does the CWG continue to request that the 
> term be &#8220;incitement and instigation&#8221; 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 &#8216;incitement to and 
> promotion of&#8217; and &#8216;incitement and instigation&#8217; 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 &#8211; such as "any other 
> discriminations that are generally recognized under international law" 
> &#8211; 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&#8217;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&#8217;t 
> subject to public objection.  
> Finally, CWG Recommendation 1.2 suggested that ICANN change the name of a 
> Recommendation 6 objection from &#8220;Morality and Public Order.&#8221;  
> 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 &#8211; 
> &#8220;Limited Public Interest Objection&#8221; was not polled by the CWG and 
> &#8220;Public Interest Objections&#8221;  was ranked only third of five names 
> polled.
> Sincerely,
> Rec6 Community Working Group
> 
>