Re: [council] Facts about the status of ORG

[Louis Touton <touton@icann.org>]

Milton Mueller wrote:
> 
> Louis:

> [snip]

> I have another important question for you. I am rather 
> puzzled by your participation in this debate in a way 
> that reveals a strong commitment to the policy that ORG 
> should be run in a certain way. I am new to the Names Council, 
> so forgive me if this is an uninformed question, but I was 
> under the impression that domain name policies are supposed 
> to be made by Board members, constituency members and their 
> elected representatives. My understanding is that you are 
> hired by ICANN as a staff lawyer to carry out the corporation's 
> policies, not to make them. I certainly value and welcome your 
> legal advice, but I don't think it is appropriate for you to 
> be actively promoting a specific policy approach. Am I incorrect?
> 

Milton,

I've looked over the note to which you are responding above (I've copied
it below for reference, omitting the quotations from earlier materials
to avoid any confusion about what I said), and I don't understand what
you are characterizing as my "participation in this debate in a way that
reveals a strong commitment to the policy that ORG should be run in a
certain way."  I have a variety or responsibilities at ICANN and my note
was intended to fulfill several of them:

   1.  Correcting, as a factual matter, some assertions about historical
matters pertaining to RFC 1591 and operation of the domain name system,
which was and is coordinated by the IANA, the operations of which I am
responsible for overseeing.

   2.  Confirming that the .org restrictions have not been actively
enforced since 1996 of the .org limitations and providing the council
with a copy of the Gomes memo as background.  As a member of ICANN
staff, I am responsible (as is Andrew) to provide information to the
Names Council in support of the DNSO's policy-development activities.

   3.  Reminding the Names Council of my legal advice that the DNSO has
a role with regard to policy development concerning .org restrictions,
in the event that the VeriSign proposal is accepted.  As you know, I am
General Counsel and as such am responsible for advising the various
parts of ICANN on compliance with the bylaws and other legal issues.

   4.  Noting that the Names Council should consider a "variety of
views" on the issue, in view of the DNSO's design to develop policy
recommendations through a consensus-based process and the presence of
many different views in the community.  This is, again, bylaw advice.   

I did give a less official piece of advice in the last sentence:  that a
change back to enforced restrictions should be done in a manner that
provides a reasonable transition to registrants.  This advice is based
on my personal experience from the IANA's administration of 100+
protocol spaces in which similar issues arise.

Milton, I'm not personally committed to any particular approach to
restrictions in .org, but I do view it as entirely appropriate to do
what I can to promote an open discussion on the matter that considers
the views of all the affected participants and that is informed by
accurate factual underpinnings.

Louis




-------- Original Message --------
Subject: Re: [council] Facts about the status of ORG
Date: Sun, 04 Mar 2001 15:26:49 -0800
From: Louis Touton <touton@icann.org>
To: council@dnso.org
CC: Alejandro Pisanty <apisan@servidor.unam.mx>
References: <saa26017.015@gwia201.syr.edu>

[omitting material copied from Milton's earlier posting]

Milton,

What you say is "indisputable" as a matter of history is directly
contrary to the authoritative RFC (1591) on the question, which you cite
only a few lines above your claim of indisputability.

RFC 1591 says that .org "is intended as the miscellaneous TLD for
organizations that didn't fit anywhere else."  Note the word
"organizations"--that's a lot different than all "registrants".  Note
also that it is intended only for those organizations that don't fit in
the other TLDs.  That includes .com, which RFC 1591 says "is intended
for commercial entities, that is companies."  In other words, the class
of registrants for which .org was intended, according to RFC 1591, is no
broader than non-commercial organizations (they weren't supposed to be 
edu-qualified or net-qualified, either).  In my mind, that is quite
close to non-profit organizations (though admittedly there are a lot of
"non-profit" commercial organizations these days :]], so maybe the term
"non-profit organization" should be replaced with the narrower term
"non-commercial organization").

[another omission of material copied from Milton's earlier posting]

You are correct that the .org restrictions have not been enforced since
1996.  For some background on why enforcement was stopped, see Chuck
Gomes' note from March 2000, copied at the bottom of this message.  In
the light of the lack of resources to enforce, it is gratifying that 
many people in the Internet community have acted with restraint in 
continuing to observe the stated restrictions on a voluntary basis.

I have previously advised (see
<http://www.dnso.org/clubpublic/council/Arc04/msg00899.html>) the Names
Council of my opinion, as ICANN General Counsel, that the future
restrictions (if any) on .org appear to involve a significant change in
substantive policy that should, under Article VI, Section 2(c) of the
ICANN bylaws, be referred to the DNSO in the event that the VeriSign
proposal is accepted.  If the matter is referred, the DNSO will likely
want to consider a variety of views, including those of many in the
non-commercial community who whould like to see .org decommercialized. 
But (speaking personally here) I would hope that any move to once again
begin enforcing the .org restrictions is done in a manner that 
reasonably protects the legitimate expectations of the existing 
registrants.

Louis