KK, all I can say is thanks! On Wed, Jul 21, 2010 at 5:28 PM, Konstantinos Komaitis < [log in to unmask]> wrote: > Thanks for this Mary. I also attach the comments I wrote on behalf of > NCSG for the URS, PDDRP, Trademark Clearinghouse and MAPO. Mary perhaps we > can compile those comments and send them as one. If you don’t agree with > what is written, I can post it on my behalf. > > Thanks > > KK > > PS: apologies for the lateness in submitting these. > > > > Dr. Konstantinos Komaitis, > > Law Lecturer, > > Director of Postgraduate Instructional Courses > > University of Strathclyde, > > The Law School, > > The Lord Hope Building, > > 141 St. James Road, > > Glasgow, G4 0LT > > UK > > tel: +44 (0)141 548 4306 > > > http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-Regulation-isbn9780415477765 > > Selected publications: > http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038 > > Website: http://domainnamelaw.ning.com/ > > > > > > *From:* NCSG-NCUC [mailto:[log in to unmask]] *On Behalf > Of *Mary Wong > *Sent:* Wednesday, July 21, 2010 12:00 PM > *To:* [log in to unmask] > *Subject:* Draft public comments on DAGv4 (background checks, MAPO, > Independent Objector) > > > > Apologies for the last minute circulation of this rather brief draft > comment - I've not been able to pull together anything better, unfortunately > :( Since the comment period for DAGv4 closes today, however, I thought I > should send what little I've got to the list for comments/feedback. > > > > I've drafted it as a submission from NCSG, but if there are objections or > concerns from anyone, I'm happy to file it as a personal comment. It can > also be combined with what Wendy and others have worked on, w.r.t. other > aspects of DAGv4. > > > > Here goes - > > > > "The NCSG wishes to comment on several specific aspects of version 4 of the > draft Applicant Guidebook; viz., Module 2 (Evaluation Procedures) regarding > Background Checks, and Module 3 (Dispute Resolution) regarding Morality & > Public Order objections and the role of the Independent Objector. All page > and section references are to the redlined version of the draft Applicant > Guidebook. > > > > (1) Background Checks (Module 2) > > > > While it is understandable that a certain level of background check on an > applicant may be desirable, the current suggestions go beyond what would > seem to be reasonable and necessary. > > > > First, the least intrusive check that can be done should be that on the > applicant itself (i.e. the entity applying for the potential new gTLD), in > relation to its financial, technical and operational capabilities (in > keeping with the other requirements of the Guidebook). To the extent > that this makes it necessary to also conduct a check on the applicant's > management, this should be limited to officers, directors and majority > shareholders of the applicant. It is unclear what the word "partners" (pg > 2-1, Section 2.1) means in this context, as the legal meaning of the word is > different from the broader, more general meaning in ordinary use. > > > > Secondly, some of the grounds upon which a background check are to be based > appear overly vague and/or disproportionate to the objectives of this type > of background check. For instance, would a check on whether an entity or one > of its directors engaged in "terrorism" come back positive because that > entity or person has been charged in one national court with abetment of a > terrorist act according to just that one country's definition of terrorism? > Does ICANN limit terrorism to mean constituting a security threat to > critical Internet infrastructure, and according to whom? > > > > While the scale of serious matters such as terrorism (however defined) and > war crimes (another highly-charged phrase) cannot be denied, how would those > issues affect the deployment of new gTLDs and the operation of the DNS, such > that it is appropriate for ICANN to deny an application on those grounds? > One can perhaps agree that a company that has been found to have engaged in > "corporate fraud and financial regulatory breaches" may not be an > appropriate new gTLD registry operator, but these are purely financial and > operational issues that are directly linked to the capacity of a potential > new gTLD registry operator. > > > > Thirdly, the question of whether an applicant (or its officers, directors, > shareholders and partners) engaged in "intellectual property violations" (pg > 2-2) does not seem to belong in the same category of serious concerns as the > other grounds listed as subjects of background checks. If ICANN wishes to > ensure that serial cybersquatters and other, proven cases of abusive > trademark users will not be allowed to operate a new gTLD, then this > category ought specifically to be limited to just these particular cases > (and not, for instance, extended to someone who unknowingly infringed a > copyright at some point in his life). > > > > Fourthly, even though the decision whether or not an applicant has passed a > background check is made on a "case by case basis" (pg 2-2), the draft as it > stands gives ICANN (and, for that matter, the entity conducting the > background check) broad discretion to consider many more factors than those > listed and to make a decision. > > > > There is also no provision for informing the applicant either that it (or > one of its officers, directors etc.) has triggered any alarm bells in the > course of the background check, or even that it has failed because of a > negative background check. Further, there is no provision for any appeal or > review of a decision to disallow the application to go further because of a > failed background check. > > > > The NCSG recommends that ICANN review the background check provisions. To > the extent that community feedback indicates that a background check of any > kind is desirable, we recommend that these be strictly limited to, at most, > cases of proven financial irregularity or fraud, and possibly clear-cut, > proven cases of cyber-squatting. > > > > (2) Morality & Public Order Objections (Module 3) > > > > Many members of the NCSG continue to oppose the inclusion of a Morality and > Public Order ("MAPO") objection in the new gTLD process. This objection is > based on the belief that (a) there are no truly global standards for MAPO; > (b) the laws, customs and norms of public international law are > inappropriate and do not fit into a private party transaction (as ICANN's > dealings with new gTLD registries would be); (c) the existing public > international law mechanisms for dealing with alleged infractions of > international treaties that touch on MAPO issues are entirely different in > objective, operation and effect from the dispute resolution panels > contemplated by ICANN; and (d) MAPO issues likely fall outside of ICANN's > mandate. > > > > NCSG reiterates its call for ICANN to publicly release the research it > commissioned from the various jurists and international law experts (such as > were referenced in ICANN's earlier Explanatory Memorandum on MAPO), so that > the community can openly evaluate the need for a MAPO objection process at > all as well as the grounds upon which ICANN is currently recommending that > such a process be based. > > > > NCSG also calls ICANN's attention to the recent formation of a joint ACSO > group tasked with discussing the MAPO issues, and recommends that any > further action on MAPO be taken only with reference to the work to be done > by that group. > > > > In the absence of any further information forthcoming regarding ICANN's > reasons for including the current grounds for MAPO objections > and consultation with the joint ACSO group, most NCSG members remain opposed > to the inclusion of any process relating to MAPO objections at all. > > > > (3) Independent Objector (Module 3) > > > > NCSG is concerned at the lack of specificity in both versions 3 & 4 of the > Guidebook concerning the accountability of the Independent Objector ("IO"). > While we favor the concept of such an office, we note that the very freedom > currently recommended for the IO also means that he/she does not have to act > in consultation with any community, nor is he/she obliged to receive public > comments (pg 3-6). > > > > Further, while the IO is supposed to be an independent contractor to (and > not a full-time employee of) ICANN, his/her budget will necessarily emanate > from ICANN. The recommendation that the IO has potentially limitless > renewable terms (pg 3-6) is therefore a matter of concern. > > > > In addition, there is no process for any person or community who are > aggrieved or harmed by the IO's decisions and actions (or inactions, as the > case may be) to object or appeal. While it is reasonable to believe that a > responsible IO will not file a trivial or illegitimate complaint, there > is currently no redress for anyone or any group who believe themselves > prejudiced by a decision of an IO not to act, especially in cases where a > particular person or community may, for reasons such as political > suppression or financing, be unable to raise objections on their own. > > > > NCSG's concerns about the IO are particularly magnified given the IO's > mandate to file MAPO objections. > > > > NCSG recommends that, at the very least, specific provisions relating to an > appeal and review process for the IO and his/her conduct, as well as either > non-renewable tenure or a maximum number of terms, be included in the final > Guidebook. > > > > Thank you for the opportunity to comment on the latest version of the draft > Applicant Guidebook. We look forward to an accurate and timely summary and > analysis of all comments received in this round, and to speedy resolution of > the issues highlighted through this comment process and period." > > > > > > > > *Mary W S Wong* > > Professor of Law & Chair, Graduate IP Programs > > Franklin Pierce Law Center > > Two White Street > > Concord, NH 03301 > > USA > > Email: [log in to unmask] > > Phone: 1-603-513-5143 > > Webpage: http://www.piercelaw.edu/marywong/index.php > > Selected writings available on the Social Science Research Network (SSRN) > at: http://ssrn.com/author=437584 > > > > > [image: Pierce Law | University of New Hampshire - An Innovative > Partnership] <http://www.piercelaw.edu/> >