GAC Plenary:  Meeting with ALAC
Tuesday, 27 October 2009
ICANN Meeting
Seoul, Korea.

>>CHAIR KARKLINS:   I apologize with the late start.  We had some
delays with the lunch.

We are starting in five minutes. 

So good afternoon, ladies and gentlemen.  It is my pleasure to
welcome ALAC in the GAC room.

I see that there is a nice mixture around the table.  And we can
roll out this debate.  We planned that we would address two issues,
two sets of issues, more precisely.  And just now with Vanda, we
agreed we would start with the new gTLDs.  And after about 45
minutes, we would switch to AoC, which is Affirmation of Commitments.

These two issues we have been planning to talk through.

If that would be okay, then I would like to give the mike to Vanda.

>>VANDA SCARTEZINI:   Okay.  Thank you, Janis.  Thank you for having
us here.

I guess it's a very good improvement to have this participation,
joint participation with ALAC and GAC.  And this is very important
for us.

I believe that we could start a little bit talking about the new
gTLDs and how this in some way impacts us.

I guess there is a lot of points that ALAC is thinking about in
working on these issues.  And I would like to raise one that is very
concern of us.  That is, till now, all this discussion about the
cross-relation in domain of registries and registrars, you know, the
vertical issues, haven't taken into account the point of view of the
registrants.

So we don't see and haven't heard till now what is the impact in the
registrant side.

So this is --  My point is, we need to ask in some way to the board
that we need to have more (inaudible) on that, to make sure that the
decision they're going to take will consider also the registrant side.

So I believe that we have heard yesterday a very interesting debate.
Even the model of the debate was very good.  But we haven't heard
nothing about the registrant side and the impact, the economics about
that that gives some idea how will be impacted all the registrants
around the world.

So just to warm up.

>>CHAIR KARKLINS:   Thank you, Vanda.

As you know, in Sydney, GAC promised to comment on DAG version 2. 
And in -- on the 18th of August, the GAC submitted the letter,
substantive letter, substantive comments to version 2 to the board. 
And in this letter, we voiced some concerns on a number of issues. 
And I would just go through the titles, which would indicate what
issues are of concern of the Governmental Advisory Committee.

And first and foremost, the concern of impact of increase of the
root zone to the stability and reliability of Internet.  And before
this meeting, before this session, we had a very interesting session
with the representatives of SSAC/RSSAC, and we addressed the issue of
root scalability.

Another subject of concern which could be considered as overarching
is whether benefits from a limited opening of the root or of the G
space would outweigh potential harms this opening would bring and
whether there is a market demand and whether that demand is proven by
empirical data.

And the third subject of concern is a competition in the G space. 
And I think that here, that coincides also with your concern.

Then what are potential risks of opening.  And one of the important
questions what we are discussing is the protection of intellectual
property rights and how -- whether there shouldn't be some
categorization of TLDs, and particularly already since Mexico
meeting, GAC considers that the category of social and cultural TLDs
would be useful for -- to separate them from mainstream or commercial
TLD.  And we think that sometimes -- or maybe some other rules would
need to be applied to those TLDs.

And the ongoing concern is protection of geographic names on the top
level.  And the cost of application and cost of objection procedures
is also something we mentioned in our comments.

So that gives you a broad overview and idea.  But some issues still
need to be discussed and assessed.  And, of course, some of our
comments have been taken into account, but certainly not all.  And
we're looking forward to further debate on these issues.

>>VANDA SCARTEZINI:   Thank you.

I would like to just remember one point that I just heard in the
meeting with the registries.  That was regarding the -- how the
contract between ICANN and the registries and registrars will be in
some way respected if in this proposal, new proposal, they have a lot
of issues that is points where the condition to sign some new gTLD
means that ICANN can change the contract.

And the other point, ICANN has the ability to change the contract.

So there is a lot of points inside this document that demands some
kind of review from the board about that.  Because there is no way
investors will agree to have so open contracts that can be changed.

And this certainly impacts a lot registrants, because if you have no
legal, you know, supervisor on the contract side, certainly they will
have some kind of problem in the contract with the registrants.

So it's another point under this new gTLD that it's under our
consideration.

Once that our chair is coming --

>>CHERYL LANGDON-ORR:   No, no, no.

>>VANDA SCARTEZINI:   No, I will suggest that since in our group we
have each one of our colleagues more deeply involved in each issue, I
would like to hear some of them to address some points that we are
debate.

Alan, if you could -- you are more involved with the GNSO and all
the new gTLDs.  So could you raise some points that we are also
concerned about.

>>ALAN GREENBERG:   Thank you for the advanced warning.

A couple of comments.  Vanda, you started off talking about the
registrar/registry separation and saying we haven't heard how this is
going to affect registrants.  And I guess I differ with you.  We have
heard.  Each party, as it were, in the dispute are giving their own
view of how this is going to help registrants and the other one will
hurt registrants.  The real question is, how do we divine which is
the correct view, if, indeed, there is a correct view.  And I think
that is one of the difficulties in that discussion.  And I don't
really want to talk a lot more about it, because it's on our agenda
to talk about immediately after this meeting.  So I don't think we --
at large has a position yet.  But I think it's something that will
potentially have some great impact on the success of the new domains
and of registrants using them.

So that's certainly an issue.

The intellectual property issues that have been passed on to the
GNSO for comment, it's an interesting process.  If one was cynical,
one would believe that it was passed on to the GNSO just so the GNSO
would not be able to do anything but was given the opportunity.

I'm taking a more positive view that I think this may be a way to
find some common ground, or at least closer to it than we are today. 
And, you know, I'm looking forward to that.

I have nothing else particularly special to say.  The two of you
have covered really most of the critical issues.  And it's hard to
disagree that, you know, root zone scaling is -- is a critical issue
and perhaps the most critical one.

If you prompt me on a particular subject, I'm sure I can talk on it.
But I don't have any other particular things to raise at this point.

>>CHAIR KARKLINS:   So I see U.K., Mark, is seeking the mike.

>>UNITED KINGDOM:   Yes.  Thank you, Chair.

I wondered if ALAC had a view on the issue of the potential
confusion amongst end users that could arise from the proliferation
of domains.  It was something -- was another point that was raised in
the GAC in its submission to the chair of the board.  There are
provisions in the draft applicant guidebook to deal with potentially
conflicting or very similar strings.

But do you have a view on that issue and whether there is sufficient
provision in the new version of the guidebook to address that risk,
if you like, of end user confusion?

Thank you.

>>VANDA SCARTEZINI:   Alan?

>>ALAN GREENBERG:   At large and ALAC has not taken a formal
position.  There are certainly some strong views held among some of
the members and some of the people within the group.

If I had to make a prediction, I would say there's going to be -- if
we are successful on launching a large number of new gTLDs, there
will be a lot of confusion.  And I think it'll be resolved by people
simply using search engines a lot more and choosing to ignore the
issue.

It's clear there are some TLDs that are likely to be real winners,
and people will use them and identify with them and go to them.

I think after that level, we're probably increasing user confusion
until we bypass the issue altogether with things like search engines.

I'm not sure how the world can contend with hundreds and hundreds of
gTLDs which people have to remember and identify who's -- you know,
which gTLD is which organization using.

So I think in the interim level, there's going to be more confusion,
not less.  Whether it's a good situation or not, I don't know.

>>VANDA SCARTEZINI:   Evan. 

>>EVAN LEIBOVITCH:  Hi.  Evan Leibovitch, chair of North American At
Large.

We did come out with a position at Sydney that was highly critical
of the IRT.  But having said that, there's still, I believe, a
significant desire within at large to address issues of name
protection and the recognition that name confusion over registered
marks is a consumer issue as much as it is a brand owner issue.

So this is not -- you know, being in opposition to some of the
overreaching things that we saw in the IRT is not -- is not a
rejection of the need for name protection, and strong name protection.

I think one of the things that we've been seeing is that in the
attempt to make this happen, that there's a couple of areas where
things are a bit overreaching.

For instance, there's a provision in the DAG that talks about
confusing names and extends it not only to the words and the
variations, but also to issues of meaning.  And if you applied that
correctly, that means if dot com existed, dot biz would get objected
to.  And so there's a concern that some of this may be going beyond
the pure issues of consumer confusion and being used to actually
reduce competition and protect the existing monopoly interests.

>>CHAIR KARKLINS:   So who wants to continue?

>>ADAM PEAKE:   Just a quick thought.  I think we're going to see
how many new TLDs emerge, we're going to see enormous marketing
campaigns which go with them.  And that will mean that the nature of
competition is that some campaigns will succeed and some will fail. 
So an aspect of competition will be failure.  And I don't see that as
a particular problem.

Where there are TLDs that are providing services or targeting
services towards niche markets, then there will be no confusion,
hopefully, within that niche market.  But the rest of us may not use
it because we're not part of that particular community.  I don't see
problems in that area particularly, either.  

And certainly, looking around the room, I have sent e-mails to many
of you with many, you konw, UKs, and KEs and CAs, and there's no
confusion there.  It's something one gets used to quite quickly.  So
we may have an initial land rush of confusion, but we'll sort
ourselves out.

Going back to something that you mentioned, Janis, I would be
interested in what you're thinking about geographic names.  I was
looking at Wikipedia -- just changing subjects -- my original
hometown of Sheffield, and if you look, there are nine entries for
Sheffield.  And how would we sort that out.

>>CHAIR KARKLINS:   Thank you, Adam.  

If I may ask those who intervene, if you could introduce yourself
very briefly.  Because around the table, we have many new GAC
members.  And, of course, Adam Peake is quite a monumental figure in
ICANN community, so everyone knows you.  But let's keep this as a
rule before intervention.

>>ALAN GREENBERG:   Something Adam said reminded me that one of the
issues that I don't think we've talked about enough at all -- and I'm
not sure talking is going to help -- is, we are going to have failures.

And although the process talks about how do we put a failed TLD up
for auction or whatever and try to get someone else to take it over
so the users aren't impacted, it's pretty evident to me we're going
to have failed TLDs that simply fail, that no one's interested in
buying and taking over and keeping running.

And one could say if it failed, then there weren't a lot of
customers and clients and registrants, so it doesn't matter.

But the small number may be a million.  And it's going to have an
impact.  I don't think any of us will have a clue how it's going to
impact us.  But I don't think we can pretend it won't have an impact,
that TLDs that we know and come to love over years will just
disappear someday and somehow recover.  There's not much we can do
about it if we think new TLDs are a good thing.  But it's going to
happen.

>>VANDA SCARTEZINI:   Okay.  Vanda from ALAC.

I'm (inaudible) open to board of ICANN, just to introduce me.

Just thinking about changing a little bit, but not so much, about
confusing, thinking about IDNs.

And when IDNs changing, we certainly -- we're going to have some
kind of problems related to the software and equipment that --
probably software that you're going to use.  And so, in some way, we
need to prepare, talking about the ccTLDs especially, because mostly
is in less-developing countries.  And we're going to have a lot of
maybe difficulties to really use them in the regular software if they
are not prepared to deal with one or two or three letters or symbols
in the IDN.  So it's something that will confuse the people, because
people will understand that new TLDs, the new IDN TLD is not working.
And certainly will be not that.  But some kind of software is not
really adapted to the new reality of that kind of product.

So it's thinking about confusion, I guess this will be much more
important issue than any kind of formal confused letters in such a way.

>>CHAIR KARKLINS:   Bertrand.

>>FRANCE:   Hi.  Bertrand de la Chapelle, France.

I think the -- the general environment of the current situation is
that two basic assumptions that were at the foundation of the whole
gTLD program are being challenged.

The first assumption is that, by definition, we should aim for
unlimited space and, basically, unlimited as early as possible. 
There should not be any limitation at first.  That's the first
assumption.

That is now being challenged, mostly by the root scaling study, not
because it may not be unlimited in the long term.  But it's about
scaling, what is the path, given the fact that there's a technical
problem, but there's also a financial problem.  Because if you want
to scale up and ramp up the root server system, this requires money.

And, as a matter of fact, there's a second problem, which is the
notion that there's a one-size-fits-all regime for filtering and
validating TLDs.  And the more we move forward, the more we see that
this is bringing a problem.  Because on each issue, you cannot treat
in the same way the different types of TLDs.  And as you cannot treat
them in the same way, you are forced to adopt for any kind of
restriction the lowest-common denominator.  It goes for security; it
goes for trademark protection; it goes for the vertical integration.

If you want a single regime, then you have a problem, because some
are not covered enough and some are covered too much.

And, in addition, I would go along a little bit with what Alan was
saying.  

On a personal basis, and also on a governmental basis, I have a
concern with something that would unduly enhance, on the one hand,
the probability of failure.  And it is obvious that the more we
launch on the principle that there's more likelihood of failure,
which is bad for registrants and users -- and users.  And the second
thing is that, if we open up without any restriction, there is a
likelihood that a lot of what I call vanity LDs will emerge. 
Particularly in the brand space, there will be a lot of actors who
will just reserve the brand because the competitor has done it, which
is basically potentially overoccupying a scarce resource.  That's the
basic assumptions that have been challenged.

Now, in the discussions yesterday and the day before yesterday in
various groups, I just wanted to throw in the discussion three just
one-liners that have emerged that I was not aware of before.

One, there is a strong resistance from registries and registrars to
any provision in the new TLD round that could potentially, in the
future, become retroactive for the existing one, and particularly for
dot com.  This is something that I didn't understand before.  And
it's coming very clearly now.

Second thing is, there is a category we didn't think of which is
emerging, which is called somehow single-registrant category.  It's,
for instance, Facebook that says, "I want dot Facebook, but I will
not sell any domain name.  I will distribute it among my membership."
And it is not necessarily a bad thing, but it probably requires a
different regime.

And the third point is, the more we discuss, the more it looks like
the regime for post delegation is almost as important as the process
for introducing the TLD.  Because whatever the duration of the
process, it will be limited.  The duration of the operation is likely
to be very long.  So enforceability, and so on.

And as a final point, now that we are in this situation where,
basically, we have no time line -- you probably heard Kurt Pritz say,
no, there is no time line now -- how can we explore a little bit more
not necessarily the notion of categories, but the notion of track
differentiation around, for instance, geographic, brand-related,
community of sorts, and more thematic ones, for instance?  And would
be very interested to know what is the feeling of ALAC members of how
to bring the discussion on categories that is becoming ripe in the
community.

That's it.

>>CHAIR KARKLINS:   So thank you, Bertrand.

Sébastien.

>>SEBASTIEN BACHOLLET:   Yes.  Sébastien Bachollet, ISOC France,
vice chair of ALAC.

This process is -- we don't have time line.  And we know when we
start.  And it's just, sorry to say that, but a waste of time and
waste of money.

Let's come back to 2004.  ICANN introduced nine, now ten, I guess,
new TLD.  And we have the dream to be able to introduce as much as
many TLD everybody could imagine.  But at the end of the day, the
user will have big trouble with that.  Then maybe it's better to
introduce ten this year and ten next year and to go on and not to try
to solve any little things for everybody.  Because it will not fit. 
We are not taking the same shirt, each of us.

And my point, it's -- the category, it's already going on.  ICANN
board will decide about IDN ccTLD.  Seems to be.  And it's one
category.  That means that ICANN, we, as all, we decide already to
launch the process of new TLDs with categories.  

To add one question to you, GAC member, if I may, it's -- now they
are introducing IDN within a world where you are closer, because it's
CC and it's dealing with the region or country and the government of
some action, how you see the introduction of IDNs in the rest of the
world.  To be a little bit provocative two seconds, we are in this
situation of new gTLDs because the incumbents are not able to agree
on how they can have competition.

My fear is that CC and the governments decide they don't want to
have competition on the IDN in the future, because you already get
them.

I know it's a provocative -- sorry about that.  Thank you very much.

>>CHAIR KARKLINS:   Thank you, Sébastien.

Any reaction from the GAC side?

Stefano.

>>ITALY:   Okay.  Stefano Trumpy, Italy.

The idea of -- apparently, we say that there is not long an agenda
for new gTLDs.  And this is true.  It's something that we verified
here.  Because when we came out from Sydney, there was still this
idea that maybe at the end of the first quarter next year, the call
would have been activated.  And now we don't even know when and how. 
And I don't say "if," perche -- because we may be sure that ICANN
cannot fail introducing new gTLDs, because we have to remember that
ICANN was created also for this, or mainly for this.  I'm
exaggerating a little bit.

So --  And then the GAC already expressed an opinion to ICANN to
consider these categories and -- for the new gTLDs.

And since now, we know that the number of new TLDs (inaudible) by
the security committee -- we had a meeting just before.  And I asked -
- we asked them the number or provision, let's say the number of --
number period that could be added without jeopardizing the stability
of the DNS.

And the answer was that we are not ready yet.  

Although there are recommendations that it should not be more than a
few hundred in two or three years.  But in the end, they will have
this number.

So among the categories, we mentioned in another meeting that there
is also IDN gTLDs, for example.  And by sure, we think that
introducing IDNs in ICANN, in the DNS, is a very, very important and
top objectives, let's say.  So it is better than nothing.

So no one of us expressed an opinion that since the new gTLDs is on
a stop for the moment, then we should stop also the country code IDNs.

But the real problem is, is ICANN ready or should consider sort of a
fast track for the new gTLDs?  With, for example, selecting some
categories.

>>VANDA SCARTEZINI:   Like some of old ones like dot Berlin, or
something like that.  That is more than nine years, I guess, wait in
the line.  And this back to the geographical names.

>>CHAIR KARKLINS: Izumi, yes.

>>IZUMI AIZU:  Thank you.  My name is Izumi Aizu.  I live in Tokyo. 
I am one of the ALS Internet user network in Tokyo and one of the
members of APRALO and a former member of ALAC.

Just following the subject of the gTLD and the geographic names, my
question to GAC is have you really discussed here about your earlier
comment about there should be some consideration for the fee
structure for the small entities or cultural minorities, or whatever.
Is there any further discussion?  Because I was invited to the city
government of Tokyo before they lost for the Olympics hosting, just a
few days before.  And it makes a huge difference if they will host
the Olympics games or not.

But still, there is quite a good commercial interest to host dot
Tokyo or maybe dot Kyoto or many other internationally recognized
cities.  But many of them are not too large to afford the initial
application fee.  Or it's very difficult for city officials, at
least, to convince the city councils or their governors or mayors of
such a fee unless there is real, sort of, well-articulated reasons to
their citizens.

So with this fast-track idea, because now we are also working on the
fast-track for the IDN ccTLD in Japan, we are trying to set up a
framework in which the registry will be selected.

The incumbent registry is open to bid for, but newcomers as well.

And some of the new gTLD sponsoring companies are trying to also go
into the game.

And these guys also may go to the geographic names.

So geo names could be something in between the ccTLD and the general
gTLD.

Of course, they have some commercial impact, but also very strong
public interest or public-policy areas.  That's why.  And the
governments have -- you guys the veto power if the potential registry
want to use the dot Tokyo or dot Beijing.  They need both, perhaps,
the national and local governments' support or approval or
nonobjection.

So I would like to explore, what if, like the CC guys, if national
government has sovereignty over the local names and you guarantee
that most of the dispute will be solved they local level, provided
that the Japanese and Chinese geo names don't conflict.  Sometimes
they do.  Then you don't have to really go through all the ICANN
processes, perhaps.  So why do we need to pay the 185,000 for that?

So these are the kind of questions on the table for us.

Thank you.

>>CHAIR KARKLINS:   So thank you.  There are a number of questions
on geographic names.  I don't know who would like, from the GAC side,
to answer those.  Mark, you?  Or Hubert, maybe you want to consider?

But Mark, please.

>>UNITED KINGDOM:   Thank you, Chair.

First of all, on that last issue of community-based initiatives
aimed at securing a gTLD, we're very much in sympathy with what you
are saying.  It's exactly the argument we have been deploying in a
number of our interactions with the board and staff on the whole area
of categorization and the link of that to more elaborate fee
structures which take into account different nature, differently
resourced applications.

We will continue to pursue that course.  The staff response on that
has been pretty firm.  They want to stay with a simplified, single-
fee structure.  They don't feel they have enough market testing or
any other information or data which allows them to develop a more
elaborate fee structure in the first round.  Subsequent rounds, they
say, well, that may then be a possibility.

But a number of us on the GAC have had representations within our
national jurisdictions on behalf of projects which are very much of
that nature, city and culture and linguistic groups.

So in regard to that, we are very much in sympathy with what you
described in regard to the Tokyo initiative.

While, indeed, Germany and Norway might want to chip in,
particularly on the geographic names issue which Adam Peake first
raised in this discussion, basically there is disappointment within
the GAC that there isn't any movement in the third version of the
DAG, which takes into account our pretty firm argument that
geographic names, identifiers and abbreviations are very much the
concern and primary issue for governments.

So there's that basic position.  We're not happy with what -- the
DAG 3 amendments and the extent to which they do not take account of
that.

We're also concerned about the lack of provision for the post-
delegation situation where action -- who would take the action to
correct a deviation from the applicant's original intention for use
of a geographic name.

So there's that area as well.

But as I say, maybe Norway and Germany can chip in, and they may
wish to elaborate on what I just generally described.

Thank you.

>>CHAIR KARKLINS:   Thank you.  I also want to remind that there was
a board request for the GAC to come up with an implementable solution
on the protection of geographic names on the second level.  And after
consultations, we proposed the board to ensure that the minimum
protection should be given to geographic names -- to country names,
to country names from three official lists.  And these provisions
have been taken into account in the DAG 3.  I mean, they were already
taken into account in DAG 2, and they are in DAG 3.

It is not all that we wanted, but this is a bare minimum.  And we
equally encourage the registries in developing their reserved name
policy to go far beyond this minimum requirement in the protection of
geographic names.

So this is on the second level.

But our concern still remains is mostly on top level and in
delegation/redelegation in case of dispute.

But now I will ask Hubert to come in from Germany, and then after
that, Norway.

>>GERMANY:   Yes, thank you very much.

Let me just jump in in the question of ccTLDs for geographic names.

We are a bit reluctant to have the same definition ccTLDs for city
TLDs or geographic names, but we see that there could be some
elements of the ccTLD process that could be used for the geographical
names.

But we would be reluctant to call them ccTLDs.

We have this nonobjection process, for example, which is something
which is in no other gTLD used, and, therefore, it's an important
part of the approval process.

What we really are concerned, this question of redelegation.  I
think Norway will talk on this issue later on.  And one other point
is the question of geographical names and the definition of
geographical names on the top list.  Because if you see the list, you
will find, as it is now in Version 3, you will find the country names
in various languages, you will find subdivisions of the countries,
and you will find cities.  And I think there's some (inaudible)
regions and whatever.  We believe that every kind of geographical
name should be under nonobjection process, because, for example,
abbreviations of subdivisions.  We have our federal states, maybe the
situation in the U.S. is the same and in other countries.  They are
used -- they are colloquial abbreviations used by everybody, and they
are clearly, from my point of view, geo TLDs.  And if I talk to an
applicant and initiatives who want to apply, for them it's also clear
that they are geographical names and they want to be a geo TLD.  And
as they also accept that governments have a voice in this process. 
And therefore, I'm not convinced that the situation we are in will be
the last, but there is something that we should consider.  Because I
understand, as a position from the industry, from the other side, if
we have a reserved name, if we give all this abbreviation to a fixed
list, they will be reserved and not possible for other industries to
be used for other question.

Let's give an example.  We have dot cat that I know is a language
TLD, but has, to some extent also, similarity with a geographic name.  

Cat is not an official name.  It's an abbreviation.  But cat could
be used for everything else, when I think of cats or whatever.  If
there are associations that are interested in a dot cat and it's used
for this association, why not?  But if it's used for Catalonia, it
is, from my point of view, clearly a geographical name.

And there, I think, we should go in depth with our consideration.

Thank you.

>>CHAIR KARKLINS:   Thank you, Germany.  Norway.

>>NORWAY:   Just a comment on the regarding the redelegation
procedures on geographical names.  I was asked to comment on that.

GAC has talked to ICANN staff about it, and Norway put forward --
well, we said that DAG 3 should determine that ICANN will respect the
contract terms, if you can call it that, or the terms of an approval
and nonobjection from the local governments to the registry of a new
city top-level domain or other geographical top-level domains.

Therefore, we draw a parallel to DAG 3, model 1, subsection 1.2.1
that says that ICANN may deny an otherwise qualified applicant for a
new gTLD if the applicant has been judged by court for fraud or
breach of contract in other -- well, fraud -- well.

And we thought that maybe they could put that into the agreement
between the registry and ICANN, that they will respect a binding -- a
legally binding decision from the national court on the terms of
approval and nonobjection and say that they could actually redelegate
it if there was a court decision on that on the national level.

Thank you.

>>CHAIR KARKLINS:   So thank you.

Evan.

>>EVAN LEIBOVITCH:   I have a question on a different subject.  So
if there were other follow-ups to this, I would cede to that.

>>CHAIR KARKLINS:   Anyone else wants to speak about geographic
names on the GAC side?

I see none, so we have 30 minutes left.  Shall we continue on gTLDs
or shall we move to AoC?

Please, Evan, go ahead.

>>EVAN LEIBOVITCH:   The question I had is related to something that
continues to be a sticky thing within many people within at-large,
and that is the clause on the objection on morality and public order.

I wanted to get some input from the GAC specifically related to the
potential that a string that is perhaps taboo or offensive in one
country or culture and totally acceptable within another country or
culture.

The way that the DAG deals with that right now is extremely vague. 
And I would like to get some input on your view on that.  And things
that are universally objectionable is one thing, but you can also
have situations where a string that is objectionable in one society
is perfectly fine and, in fact, is desired in another.

>>CHAIR KARKLINS:   Do you have any particular string in mind?

[ Laughter ]

>>CHAIR KARKLINS:   Just an example?

>>CHERYL LANGDON ORR:   Perhaps it's best to talk hypothetically.

>>EVAN LEIBOVITCH:   Well, yeah.  As an example that has been
raised, dot gay is something that is very acceptable and encouraged
in some societies and absolutely taboo in others.

There's a lot of strings, but that's one that comes up frequently. 
And there are fears amongst people that I have spoken to that the
current provisions on morality and public order get into a whole
thing of having the International Chamber of Commerce judging
comparative morality, and that scares me.

>>CHAIR KARKLINS:   So who would like to answer?

Bertrand.

>>FRANCE:   Janis, I don't think it's about an answer, because the
debate is open.  And thanks for raising it.

I think dot gay is a very, very interesting case study in that
respect.

Also, because, as some of you may know, there are at least two
applicants today who are now trying to get dot gay and there is even
a battle about who is more community oriented than the other.  And
there's even a tension between the two on whether -- and I'm serious
here -- on whether somebody who is heterosexual could even be
managing dot gay.  Which is a very interesting trend.

So anyway....

[ Laughter ]

>>FRANCE:   No, the expression was "allegedly heterosexual," which I
love.

[ Laughter ]

>>FRANCE:   I can forward the quote.

Actually, somebody said that there is a third actor who might be
applying for the string, and that it doesn't come out of the closet. 
It keeps the application secret at the moment.

Anyway, on this subject, I just want to make one precision a bit
also because of the indirect links or direct links I have with the
International Chamber of Commerce, as some around this table know.

It is not the International Chamber of Commerce.  It's the
arbitration court of the International Chamber of Commerce.  It's
something that is completely distinct.  And it's important that in
this respect, whatever the decision is in the end, it shouldn't be
considered that the morality and public order will be addressed along
commercial basis.  We need to know better how the arbitration and the
panel establishment of the International Chamber of Commerce, but it
shouldn't be restricted to just the name.

And I think it hasn't been explained enough by ICANN.

But once again, the case you raise is a very valid case in point. 
And we are again in the situation where two choices are probably both
unacceptable.  Like you cannot get a string if only one actor, or,
for instance, one country objects.  Or you should impose it that a
country doesn't block it, for instance, because it has been accepted
in the root.

I am afraid, and the discussions -- and I'm really speaking here
without a -- it's not -- It's a contribution to the discussion,
because I think we are toying with things that are very delicate. 
But if you discuss with NCUC, for instance, interestingly enough,
when they had the discussion before, people like Robin Gross or
Milton Mueller, who are very strong freedom-of-expression advocates,
were precisely the ones who said on the basis of introduction, they
should be accepted, but under legal frameworks at the national level,
measures can be taken not to make it accessible.

On a purely personal basis here, I do not see how to get out of the
conundrum in another way, but maybe there are other solutions.

>>CHAIR KARKLINS:   So I see Suzanne and Bill.

>>UNITED STATES OF AMERICA:   Thank you, Janis.  And I, like
Bertrand, I wouldn't even take a stab at trying to answer your
question, Evan.  I'm not sure it can be answered.  But I think it
does -- it is a conundrum.  That's a perfect word to use.

And, actually, the GAC, when we submitted our principles, we tried
to sort of advise the board and indirectly, of course, the GNSO to be
mindful that there are plenty of terms out there that raise cultural,
religious, and I can't think of the other -- we tried to advise that
there are a lot of terms that raise sensitivity and they probably
should avoid them.

However, the approach that has been taken based on GNSO
recommendations is require people to object and kick the objection to
a panel of so-called international juridical experts.  And
unfortunately, the standard -- just the terms "public order" and
"morality" were, frankly, lifted from the Treaty of Paris. And those
terms are used nationally by trademark authorities as a basis upon
which an authority may choose to deny a particular application.

So in many ways, they are being taken completely out of their
original context.  And according to the chairman of the board in an
exchange with the GAC in Sydney, when we raised a concern -- meaning
the United States at that time, because the GAC, quite honestly, we
are still grappling with this issue -- we raised a concern that
determinations are currently made on a national-by-national basis,
which seems completely logical.

They are not defined in the treaty, because they have to be
interpreted and defined on a country-by-country basis.

And Peter's response was, well, you no longer have to do that.  We
will be creating a new standard.

I think that is also a bit challenging to think that ICANN is going
to somehow create a new international legal standard for what
constitutes a challenge to public order and morality.

So I think there are several challenges.

And I think the other part of the problem that Bertrand was getting
at, and I couldn't agree with you more, these are generic top-level
domains; right?  So they are global.  You could switch the "G" from
generic to global, whatever.

So this theory that, well, if you don't like it you can just block
it at the border, not entirely sure that that's a reasonable response
either.

And then, finally, some countries could say, well, where is the
public interest in having a word that's offensive to my citizens? 
And they will feel obliged to object because that's what they are
entrusted to do.

So there are all sorts of built-in conundrums, if you will.  And it
might be useful for us to consider if the GAC hasn't been able to
come up with one yet, in fairness, we don't have an alternative to
what they have proposed.  We have asked for more details and have not
received any as to how this will work.

So it's almost as though you have to file an objection and then you
outsource that to these three experts.

And it's just very, very scary.

>>CHAIR KARKLINS:   So Bill, please.

>>EUROPEAN COMMISSION:   Yes, thank you.  I endorse what Suzanne
said.  She made many of the points I wanted to make.

I'm glad you raised this this year, actually.  It's a big issue.  I
think there is no solution at the moment.  There is no solution in
the DAG 3.

It's difficult to see what the solution would be, actually.  That's
the problem.

I have also heard this idea about countries coming up with their own
separate lists of which TLDs they like and don't like, which
horrifies me.  I thought part of the ICANN project was to work for a
universally resolvable Internet.  That's actually talking about
fragmenting the Internet and creating ghettos.  And then I am worried
we are ending up in a territory of, you know, freedom of speech, you
know, and accepting it, actually.  That it's the right of countries
to decide which ones they like and don't like.

Also, on the issue of having an external panel of experts or court
of arbitration, basically if a government -- if somebody in the GAC --
we had this with XXX, for example.  We had a bad experience, I think
we would all admit in the GAC, on that one.  It was quite painful. 
But if a parliament decides that they are concerned and they are
worried about a TLD application and they instruct a GAC
representative to raise objections to it, they can't subcontract that
work to another body, like a panel of independent experts or
tribunal.  That won't wash when you get back home, say, "Well, we
objected to it, but three judges from three countries -- three
foreign countries, nothing to do with us, have decided it's okay with
them, so we dropped it."

We have to be realistic here.

The problem is, I don't see a solution at the moment.  I mean,
ideally this whole gTLD process would have started several years ago
with an opening line saying, "The intention of this process is to
introduce noncontroversial gTLDs."  And then we wouldn't have the
problem to deal with.

But having a completely open approach has given us that problem. 
And it does worry me that I see no solution.

And to be frank, and I'm not even sure I see the capacity for
finding a solution in the way we are currently working within ICANN. 
To be very frank.  That's a personal comment, by the way.

Thank you.

>>CHAIR KARKLINS:   Thank you, Bill.

Evan, please, go ahead.

>>EVAN LEIBOVITCH:   A quick follow-up, then.  It seems like the
consensus is that this is very unresolvable, at this stage, or
extremely difficult to resolve issue, and yet the DAG has implemented
a resolution to this.

So given that, is the desire to say take it out until you get
something good?  Or how do you deal with this?

I mean, given that there seems to be agreement that this is really,
really difficult to grapple with, is the fact that there is something
in the DAG right now that imposes a solution to this, does this not
bother everyone?

>>CHAIR KARKLINS:   So body language says it does.

[ Laughter ]

>>CHAIR KARKLINS:   Alan, please.

>>ALAN GREENBERG:   I just have a follow-on question.  Would it be
any better if that clause wasn't there and there was no process to
stop something that wasn't -- that might be objectionable in some
countries?  I'm not sure how that fixes the problem.

>>CHAIR KARKLINS:   As far as --

>>ALAN GREENBERG:   We could probably do that.

>>CHAIR KARKLINS:   As far as I know, the procedure has been put in
the DAG to protect ICANN based on experience with dot triple X, if I
am not mistaken.  So that is intention behind the proposed solution. 
And as we see, it's not very -- maybe not the best one.

>>EVAN LEIBOVITCH:   When we were discussing this, the possibility
came that a small, perhaps, modification to the community-based
objection might be able to handle the most he egregious versions of
this.

You yank out the morality and public order option and you make some
changes to the community-based objection that might allow for the
clear-cut -- you know, the slam-dunk ones that everyone sees are
really objectionable, that that could be done through the community
objection category and just dispense with the morality and public
order one.

>>CHAIR KARKLINS:   Suzanne.

>>UNITED STATES OF AMERICA:   Thank you.  That's actually kind of an
interesting idea.  But since we're still along these lines, can I
just ask you all a question.

I notice there was a change in DAG v3 from Version 2 that included a
quick-look review -- now, I find this absolutely fascinating -- of
objections to determine if the objections are frivolous.

What I find interesting is there has never been any thought given to
a quick-look review of proposed strings to determine if any of the
proposed strings are frivolous and potentially very contentious.

Is that something that maybe we should consider as another area of
possible common ground where we might want to recommend instead of
trying to reject what you might think of as a frivolous objection,
why don't we have a quick look that actually has a purpose?

>>CHAIR KARKLINS:   So thank you.

Alan.

>>ALAN GREENBERG:   It's intriguing, but my gut feeling is that
rejecting an objection based on your determination that's frivolous
is bad enough.

Rejecting a TLD application because you deem it frivolous is a great
way to accumulate lawsuits in the U.S.

[ Laughter ]

>>CHAIR KARKLINS:   Bertrand.

>>FRANCE:   Just to piggyback on what Suzanne was proposing,
actually, if I understand correctly, that would mean somehow
reversing the proof requirement.

Today, we have a system where, basically, you have a sort of right
to have the TLD unless sufficient objections are made.

What you're saying is that, given the whole context that we have at
the moment, there's no longer the principle of a right.  There is a
desire by the community to consider that as we move quietly and
prudently forward, we should prioritize those that bring the maximum
value.


And a way to check whether they bring the maximum value is something
in your line like, this is raising so much concern, so much this, so
much not support, so much danger on stability or whatever, that it
doesn't seem to be likely to be put on the fast track or on a
priority track.  It's to remove this notion that, by definition,
there is a sort of right to have any string.  Maybe that's an
additional process at the beginning on the string itself.

And, by the way, this would be completely coherent with the GAC
principles that we established in the beginning, which clearly made a
distinction between the string evaluation, the delegation, and the
operation, which the current structure doesn't do.

And we saw in the IDN ccTLD fast track that this distinction between
the string submission and the delegation was what actually allowed
the process to move forward.

So strongly distinguishing the string evaluation and the application
in general is maybe a way to go.

>>CHAIR KARKLINS:   Adam.

>>ADAM PEAKE:   Adam Peake, ALAC.  I was just reminded of one of the
first rounds of gTLD applications where Esther Dyson said we are not
here to judge business plans.  They immediately went on and judged
business plans.  But she did say that.

So looking at strings for functionality and -- who, for example, two
years ago would have looked at Twitter and said, "Yeah, great idea. 
There's going to be a billion people using it."  It's very difficult
to judge what we're hoping will be innovative ideas which will make
the name space useful.

So it's -- you know, I think there's --  Yes, the discussion is
going in a good direction.  But there's weaknesses and problems in
all of what we're saying, which need to be discussed further.

>>CHAIR KARKLINS:   Thank you.

Bill.

>>EUROPEAN COMMISSION:   Thank you, yes.

Just a question for our ALAC colleagues here.

What do you think about a situation where those who object would
have to pay to object.  In a sense that I understand the rationale is
to stop frivolous objections.  It seems to me, and I'm simple, it
won't do that.  It will say you can have a frivolous objection as
long as you pay for it.  And if you've got a legitimate objection but
you can't pay for it, we won't listen to you.

As a public-policy maker myself, I can just imagine the horror if we
suggested that we might propose a new policy or a new regulation,
actually, and that we welcome comments from stakeholders, but they've
got to pay if they want to object to our policies.  I think that
might be politically unacceptable.  And I'd have a short-lived career.

So I'm actually surprised that the community has -- that there
weren't more objections, actually, about the proposed charges for
parties who want to make objections.

I understand it would be convenient for -- to be -- it might be
convenient for ICANN and for the applicants, actually, to find some
method to filter into -- well, to reduce in number the potential
complaints.  But I'm not sure that the underlying rationale that it
would stop frivolous complaints.  What's wrong with frivolous
complaints.  If people who want to make complaints aren't convincing
and don't actually have substantial arguments behind them, they're
quite easy to ignore, aren't they?

Thank you.

>>CHAIR KARKLINS:   Adam.

>>ADAM PEAKE:   Adam again.  Is there some notion here of some sort
of -- that some countries have processes for frivolous trademark
objections.  A friend of mine once registered "eBay of pigs."  And --
thought it was funny, eBayofpigs.com.  And he got an objection from
eBay's lawyer, probably an automatic objection.  And he was
Australian.  And he sent back a letter saying that frivolous
trademark objections are actually against Australian law, for
example.  Is there a notion of that in this particular process of
frivolous objections, that we're trying to prevent people from really
trying to tie up the process for other reasons or means or....

>>EUROPEAN COMMISSION:   I think you'd have to ask ICANN staff that.
Thank you.

>>CHAIR KARKLINS:   That's exactly my -- thought that came to my
mind, I regret that nobody from ICANN staff is in the room and taking
notes.

But certainly what we can do, since this is a public session, --

[ Laughter ]

>>CHERYL LANGDON-ORR:   I think we need to note that Nick Ashton-
Hart is in the room, and he's desperately taking notes.

>>CHAIR KARKLINS:  What we most probably should do, we should send
the transcript, with compliments, to Kurt Pritz and say, "Please read
them before the bid."

Alan, please.

>>ALAN GREENBERG:   It strikes me as, listening to this, that there
may be some merit in Kurt's statement saying there's no time line,
given the number of problems that we can raise around this table, for
which there are no apparent solutions.

>>VANDA SCARTEZINI:   I have a question.

If this money, it's supposed to pay back the investments ICANN had,
if we don't have time line, how we have the number?

>>CHAIR KARKLINS:   Sébastien, and then Bertrand.

>>SEBASTIEN BACHOLLET:   Maybe the number -- we do not need number,
because the system, it's like if, when the country introduced new
operator in telecommunication, if the new one were asked to pay the
land lines to come onto the market, I'm not sure that the competition
will have been anywhere with that sort of thinking.  And I don't know
why ICANN is asking for money for the new intranets.  They must ask
more money for the incumbents.

Thank you.

>>CHAIR KARKLINS:   Bertrand.

>>FRANCE:   Yeah.  I don't want to continue, because maybe we need
to move to the AoC.

But I just wanted to answer to Adam's comment regarding the
difficulty to predict.

There is a keen and big importance of not preventing some
innovation.  But the innovation in this respect is not so much in the
string, but in the type of service.  And this is why I was raising
the concept of the single applicant TLD, which we have not explored
enough.  And, to be very honest, when you look at those who are
preparing applications, the ones we don't see, they are really
thinking about that kind of model.  And it needs to be explored
further.

And the last point is, to Alan, I think there is an element, which
is, we are getting back to the notion that being at the top level is
of value.  It is a recognition.  It is not a right.

I'm sorry to say that bluntly.  But this is the common property. 
The top-level domain is what is really common to all.  And the way to
structure is a policy decision that we all make together.  There is
no established right for anybody just by paying to be at that level,
because it is a service, at least in the period that we are entering.

And I know it's not popular to say that.  But I think since the AoC,
the notion of public interest has come back in favor, thanks to it
having been introduced in the document.  And I think the general
balance of how largely we open and what kind of value it produces
needs to be more evaluated.

And I think it's in the interest of everybody.  Because even the
registrars, the candidates, the registries are now beginning to get
into a complete uncertainty, which is the worst thing you can do when
you have a business.  So it's their value as well that I have in mind
in saying this.

>>CHAIR KARKLINS:   So thank you, Bertrand.

Yeah, we don't have, really, much time for AoC.

In conclusion, I think that Alan, in a sense, made the conclusion,
though this conclusion was very pessimistic, I think that we should
not -- we should think a little bit in more positive way.  We need to
think hard and help everybody to find solutions, because it is not
that we do not want new gTLDs.  It is that we want new gTLDs, but
equally, we want that introduction of new gTLDs would be right and
that everybody would benefit from them.  And I think that this is the
sentiment or approach we should take to the -- in all these
discussions.

So the --

Yeah, please.

>>VANDA SCARTEZINI:   Yeah, before I pass to our chair, I'd like to
raise a point that I do believe that the ALAC and GAC, in this new
reality, with the AoC, I believe we need to strengthen our
relationship.  Because most of the points that is under the AoC is
just related to both groups here.  So it's the public interest and
the new home of the GAC.

So I'd like to suggest to our chair and to Janis or the new chair or
whatever that we need to make it more formal way of working into this
process from now on.

[ Applause ]

>>CHAIR KARKLINS:   We had a conversation this morning.  And this
conversation was rather live, or lively.  But there were a number of
things which appears to gather majority support, if not unanimity.

And the first one is that the step which was made moving from MOU
and JPA to AoC, and stressing the -- as the ultimate goal, the public
interest, or ICANN -- ICANN's actions to pursue public interest, was
outlined as a very positive development.  And this is something what
we really need to value.

The second thing which was noted in our discussions was that the
review process is a secondary one.  The most important part of the
agreement is contained in appoints 1 to 8.  And that this is -- these
are commitments which are -- which need to be fulfilled and which
shows the shared view of how ICANN should work, how ICANN should
perform.  And this is our duty of all of us, as ICANN community, to
make sure and to contribute that ICANN fulfills those commitments.

And the review is just a secondary issue to measure and to evaluate
to what extent ICANN has -- with ICANN, we mean all of us --
fulfilled those commitments.

So we had a preliminary discussion on possible methodology.  And I'm
not sure whether it is the right time to come up with that.  I think
we need a slightly longer discussion.  But maybe just a couple of
elements of it is that the review process should be kind of
lightweight and not cumbersome, as we know some of them may be in
ICANN.

So we hope that these processes will be light, swift, and efficient.

Equally, we think that these review processes should be completely
transparent.  And transparency may be assured -- no, ensured by using
technology.  And that all meetings of these review teams would be
videocast and audiocast that everybody could listen in in these
debates and feel being part of the -- part of the process.

So --  But certainly modalities and composition of the teams, that
should be further discussed and assessed.

So maybe I have gone too far.  But we are in preliminary stages, and
this is a subject of further approval by the GAC.

So I think I will stop here.  Otherwise, I will go too far.

We will have, certainly, exchange on these issues with the board and
among ourselves during the meeting.  Something will be mentioned in
our communiqué.  What exactly, I don't know, but something will be
for sure.

So that would be maybe --

>>CHERYL LANGDON-ORR:   As much as --

>>CHAIR KARKLINS:   Yeah, the brief recollection of our discussions.

>>CHERYL LANGDON-ORR:   Janis, if I may, then, as we wrap up now
and, obviously, thank you all very much for your time, whether from
the ALAC or the GAC world, I think these mutual meetings, when
they're on purpose and topic, we were exploring -- and I think
productively discussing things, as we have today, an excellent idea. 
And I'd really like to thank you, as the room host, for having us all
in your room.  But I suspect we might be looking forward to a single
topic for our next face-to-face meeting and that we may, indeed, need
a face-to-face meeting in Nairobi.  I don't think there will be any
prizes given away for what that topic might be.

I think --  Is that fair to say?

>>CHAIR KARKLINS:   You mean --

>>CHERYL LANGDON-ORR:   AoC.

>>CHAIR KARKLINS:   You mean public order and morality?

[ Laughter ]

>>CHERYL LANGDON-ORR:   Thank you for exploring the mutualism.  And
I think as two of the ACs that feed into the board, whenever we can
find a point of mutual interest and make sure we are if not
necessarily singing exactly the same words, but certainly to the same
tune, it gives more power to both our points.  

Thank you very much.

>>CHAIR KARKLINS:   Thank you, from our side.  It was interesting
exchange, very lively.  And I really appreciate that.

Thank you very much.  And so I hope to see you next time, in Nairobi.

>>CHERYL LANGDON-ORR:   Okay.  Thank you very much.

[ Applause ]

>>CHAIR KARKLINS:   So, for GAC members, we're resuming in ten
minutes.