[ga] ccTLD dialogue with Joe Sims (wasRe: your comments

["Peter Dengate Thrush" <barrister@chambers.gen.nz>]

----- Original Message -----
From: "Joe Sims" <jsims@JonesDay.com>
To: <barrister@chambers.gen.nz>
Cc: <ga@dnso.org>
Sent: Friday, May 31, 2002 12:35 AM
Subject: your comments


>
>
> It is certainly true that some ccTLDs have been very supportive, and it is
> also true that many ccTLDs will say privately that they do not support the
> more radical statements of their "leaders,"

Go on, surprise me! With 242 ccTLDs, and the diversity of the whole world
internet community involved, you were expecting what, unanimity?
Welcome to the world (outside the US, that is,) Joe! Do you know how big the
Asia Pacific region alone is?

>but as far as I can tell, your
> position has been that the cc's that you speak for will come into ICANN
> only if ICANN agrees that they get to have a veto over any ICANN policies
> that they don't care to follow.

Its much simpler than that. ICANN wasn't set up to, and can't make policies
for registries which are subject to their national laws. An ICANN-made
policy may simply be illegal in their country. Think about privacy and the
EU for a quick example.

And this approach is the same as the RIRs have adopted.

We have a policy making process in my country - its time consuming, because
damn it, we have to listen to all those kooks and nuts you would rather
preclude. But eventually we get there - balancing requests from IP interests
with privacy, individuals with others and all under the watchful (but
supportive eye ) of the Government. There's no way having gone through that
we are going to change a policy because ICANN (in its present state) says
so.

>  We might be able to agree that all parties
> could have performed better over the last years, and by that I mean all
> parties -- the GAC, cc administrators, ICANN staff and Board, and
> individual national governments.  But there is still a core issue:  do the
> operators of these particular TLD registries have any obligation to the
> global Internet community, in addition to their obvious responsibilities
to
> their local Internet community?

Yes, they do. And they have been meeting it for longer than the existence of
ICANN, and will continue to if ICANN fails and will continue to do so while
ICANN 2 develops.

 Recall the cctld speakers at the security forum in LA last year as a quick
example. They take their obligations - which they see largely as maintaining
connectivity- as seriously as they always have.

>If they do, ICANN is the vehicle for
> establishing policies that reflect that obligation to the global
>community.

Possibly, and that's why any of us are here, but not in its current form,
and
not with its previous attitudes. You did not respond to my reference to the
decisions in Montevideo, but Patricio Poblete has also reminded you of
them -what don't you get?

> This has been the position of the staff, and the Board, and the GAC, from
> the beginning, and until this principle is accepted, it seems unlikely
that
> we will make much progress.  From your posting and its continuing
criticism
> of the GAC principles, I don't see much sign of progress.

The GAC principles are highly contentious and in my view and others just
plain wrong in their declaration that the internet naming system is a public
resource. How does the USG regard that claim, for example? Does Congress
accept that the DNS is now part of the world common?
This is a fascinating debate that the Board has, quite deliberately, never
engaged in. It has never been the position of the Board. Misleading of you
to try and position these issues as an alliance between the board, staff and
GAC against the cctlds.

It would have major ramifications on the role of governments in ICANN, if
the DNS were to have the same status as, say, the high seas, especially as a
party separate from any role they may have as the possible legislative
authority over the personages and assets of the cctld managers.

>  Nevertheless, I
> look forward to your upcoming meeting, and hope that it will help bring
> closure to what has to date been an unproductive debate.
>

To be fair, there has been almost no debate. There have been some assertions
thrown out- (Louis' comments about contracts in Cairo, come to mind) and
then long periods of silence.

I suggest we move this
relatively historic exchange over to the cctld-discuss list, where there is
an opportunity for debate.

In a later post Joe Sims said:

>I appreciate the clarification.  And you have certainly highlighted some
>issues that are important to some people.  The issue of cc's that act like
>gTLDs is a particularly relevant issue; if a cc registry is going to
>aggressively solicit name registrations from people all over the world,
>shouldn't it have to meet the same minimum standards as do gTLDs?

No. Why should it?
Decisions made by cctlds are the subject of the process of the local
internet community, and might be an expression of direct national government
directions. ICANN has -lets say it together -no role in the making or
managing of sovereign national policy.

>Such
>things as escrow requirements to protect against failure, dispute
>resolution procedures or something equivalent to guard against
>cybersquatting, whois systems that actually work so people can find our who
>to contact when an issue arises  -- stuff like this?

No. These things, in a cctld, have nothing to do with ICANN. These are
issues for the LIC, and
because they are in the main subject to clear and identifiable national law,
there is an available remedy for any problem which a registrant might
encounter. How presumptuous to think that ICANN should or could play any
role in this. Its not ICANN's job to protect the people of a cctld from
failure of its registry. Its simply absurd to suggest that its ICANN role to
provide a dispute resolution process, not the national legal system.
And if there's a gap in the national laws, there are national remedies.

Cybersquatting in a cctld cannot have anything at all to do with ICANN,
whose mission is technical management of names and numbers, not to protect
intellectual property rights.

Next, lets agree that the most concerning area of mission creep possible is
to allow ICANN 2 to divert itself from technical names and numbers
management to intellectual property, anti trust and other commercial issues.

>It is one thing to
>argue that a ccTLD that restricts registrations to its nationals or
>residents of the country of its charter should have the "right" to do what
>it wants on these points, since those adversely affected always have
>recourse to the national government, local courts, etc.  But when the
>registry decides to take advantage of the stable global DNS to attract
>registrants that, as a practical matter, do not have those protections, and
>can do so only because the rest of the world is working together through
>ICANN to maintain the global infrastructure that permits that behaviour,
>that seems to me to be a different situation altogether.  As I understand
>the ICANN position, there is no desire to interfere in any way with local
>policy development; that should be up to the local community.  But when the
>registry takes actions that have global implications or effects, it should
>be subject, as are all other similarly situated registries, to the global
>policy development process.

That's a complicated re-statement of the same mistaken belief.
The cctlds have always cooperated in matters of interoperability and
stability.  If anything, it is the ICANN/IANA refusal to update the cc
database that has done more than any one to threaten that.

I agree with you completely, if by the above you are referring to stability
and interoperability issues. No one should be allowed to play in the sand
pit in a way that spoils it. But you are not talking about such issues, I
suspect. I suspect you are talking about US competition-type laws, and other
business consequences of such use, which are not ICANN issues at all.

It has nothing to do with ICANN's mission of technical management of names
and numbers to provide consumer protection to registrants in those cctlds
that may lack what you regard as appropriate consumer protection laws.
Re-stating that this is a "global implication or effect" does not make the
policy any less an purely domestic matter for the cctld concerned, nor
validate a role for ICANN in interfering by setting policy for a cctld.

This is the crucial point. This is not an ICANN matter.

The cctlds are not equivalent to the gtlds. Regulations which ICANN  passes
as the LIC for the g-space are nothing to do with the laws and policies each
cctld develops by its own processes.

Until we get this clear, the real prospects where there can be discussions
about crossover cannot begin. I for one, see much advantage in a place where
those problems that have been solved in the g-space can be brought to the
collective attention of the ccTLDs, who may well adopt similar or
complementary policies (and vice versa).  An existing example is the
adoption by several
countries of UDRP as the local DRP. I see the ccSO as the place where the
cc's will meet, and it should be to the ccSO that proposals for "crossover"
policies can be debated.

But step one is for you and ICANN to accept that the cctlds do not operate
under a licence from ICANN. They operate under a duty to their LIC.

>What I take from your post is that you want
>someone else to shoulder the burdens of preserving and protecting the
>global DNS that makes it possible for the ccTLDs to function, but to
>basically leave you alone to do with it what you please (although maybe you
>would be willing to contribute to the purely mechanical work of keeping
>your database records straight).  In antitrust economics, this is called
>"free-riding" and is generally not considered something to be admired or
>protected.

Interesting that you refer to antitrust economics. The first exercise in an
anti trust case is to identify the relevant market. The cctlds and the
g-tlds are not in the same market. Wrong model.
g-TLDs exist by virtue of an ICANN contract: cctlds act as trustees for
their LIC.

When you are willing to adopt a model like ours -where policy is made by an
entirely open membership for a nominal annual fee, with direct elections to
a council which coordinates that policy making, we might have a basis for
the similar application of laws - the so-called "parity" issue. When that
directly elected body can choose to add new TLDs, and whether to charge for
domain names, and if so, how it will spend any surpluses generated, you
might have gtlds subject to the same conditions as cctlds. I should have
thought that would have scared the shareholders of the g-tld registries
silly. Just as they will not allow you to change the rules for gtlds, rest
assured that the LICs are unlikely to change the rules of their respective
cctlds..

My regards

Peter Dengate Thrush
Senior Vice Chair
Asia Pacific TLD Association


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