Re: [council] potential annex to Jeff's draft letter

[Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>]

Dear Brian,
> oThe rather broad scope of the current IGO INGO PDP, which considers 
> "whether there is a need for special protections at the top and second 
> level" of all gTLDs, has the practical effect of second guessing GAC 
> advice with respect to international legal norms and public policy.  
> In other words, whether intentional or unintentional, the impact of 
> the instant PDP is to challenge, or at least question, not only the 
> GAC's proposed criteria for protection, but also the GAC's 
> determination to advance protection for the specific two organizations 
> that meet that criteria.
Under this scope, the PDP would not only examine the need for special 
protections in new gTLDs but also under the existing ones. One may argue 
whether this is necessary or distracting (see the next point), but I do 
not see it as directly challenging the GAC advice.
I personally would have preferred a more direct reference to the level 
of protections required. After all, the term "special protections" is 
not particularly conclusive as to what these protections are actually 
supposed to be, and also the GAC has been rather opaque on what kind of 
protections they envision. It is the duty of the GNSO to fill the GAC 
advice with life and I agree that the language describing the scope of 
the PDP should have been more clear on that.
> oPlease bear in mind that the GAC was careful to propose protections 
> for Red Cross designations, Olympic words and a finite list of IGO 
> acronyms */_for new gTLDs only_/*.  I cannot recall anyone ever 
> recommending or requesting such protection in all existing gTLDs as 
> well.  Thus, the Council's response to the GAC needs to fully explain 
> any underlying rationale for the unilateral decision to broaden the 
> scope of the instant PDP well beyond GAC advice to include existing gTLDs.
While I also cannot recall any such request or recommendation, I fail to 
see why new gTLD should be treated differently from existing gTLDs. If 
it is determined that a form of special protection is necessary, why 
would such a need not also apply to existing TLDs?
> oThe Council's current draft response to the GAC seems to suggest that 
> the GNSO's primary remit of policy development relating to the IOC/Red 
> Cross is "to determine what, if any, exceptions (i.e. for 
> pre-existing, non-commercial, and/or geographical use) should apply in 
> the domain name context---particularly at the second level and in both 
> new and existing TLDs."  If this is ultimately our position as a 
> Council, then I believe it is best to gently back away from the 
> current PDP, at least with respect to the Red Cross designations and 
> Olympic words, in favor of something much more expeditious and narrow.
Would it not be the job of the PDP to make exactly that determination as 
part of their deliberations?
> oThe proposed definition of "policy" in the letter is overbroad, 
> subjective and particularly inappropriate in light of the recent 
> policy versus implementation discussion framework published by ICANN 
> policy staff.  I believe it is better to simply admit that there is no 
> bright line test and recognize that this issue is ripe for further 
> discussion within the ICANN community.
I would not call it inappropriate just because there is no clear line in 
the sand.


Best,

Volker Greimann