[ga] [council] Comments of Report of .org Task Force

[Jeff Williams <jwkckid1@ix.netcom.com>]

All assembly members,

To the Names Council:

On 1 December, the .org Names Council Task Force submitted its report
for consideration by the Names Council at its 13 December meeting.
Although the report clearly represents hard work of bringing together
apparently diverse viewpoints, the resulting proposals include some
features that raise significant concerns.  The attached Adobe Acrobat
(.pdf) file discusses those concerns.  For those unable to read Acrobat
files, the text is copied (in somewhat harder-to-read format) at the
bottom of this message.

Best regards,

Louis Touton

==================================================================

To the Names Council:

On 1 December 2001, a "Final Report of the ORG Divestiture Task Force"
was submitted for consideration at the 13 December 2001 Names Council
teleconference.  The report raises significant practical and legal
concerns regarding (a) what policy recommendations are intended by the
report and (b) whether the policy recommendations could be implemented
in a manner that is practical and fulfills fundamental aspects of
ICANN's mission.

As submitted, the report proposes a wholly new kind of TLD:  a sponsored

yet unrestricted TLD.  This aspect of the report leads to a series of
inconsistencies that in turn lead to ambiguities and irreconcilable
conflicts in the policies being recommended.  There are inherent
conflicts between the notions of sponsored and unrestricted that make it

extraordinarily cumbersome - if not impossible - for both concepts to
apply to the same situation. Attempting coexistence would present
significant problems that I believe will require complicated (and
possibly unworkable) elaborations, augmentations, and revisions.  If
corrective measures are not taken at the DNSO level now, there is a
significant danger that either (a) corrections will be required through
policy revisions at the Board level or in the implementation process or
(b) the .org transition from VeriSign will be delayed as clarifying and
additional policy recommendations are sought from the Names Council.

In this document, I will attempt to provide you with the background as
to why the concepts of sponsorship and unrestricted do not work
together.

I.  Nature of and Justification for the Sponsored TLD Concept.  First it

is helpful to understand the details of the "sponsorship" idea that has
developed over the past two years.  The fundamental characteristic of a
"sponsored" TLD is that it has a Sponsor to which ICANN delegates a
portion - but not all - of ICANN's policy-formulation responsibility.
This delegation is made on the premise that ICANN's mission of
developing DNS policies through consensus-based processes involving all
affected parties can best be done, in the case of TLDs with registration

policies limited to a well-defined community, by a community-based
organization that represents the spectrum of interests of the
registrants and others in the community who may be affected.  The
delegation is not simply a matter of granting the customary discretion
to the registry operator regarding how to run its business; it is a
delegation of ICANN's responsibilty to act in a way that represents all
the affected registrants.

As recently noted in my analysis of objections to the .aero agreement
<http://www.icann.org/tlds/agreements/aero/report-aero-tld-24nov01.htm>,

this has been accomplished in the present sTLD agreements by stating a
"charter" defining the purposes for which the TLD may be used and then
expressly defining a "Sponsored TLD Community", which in general terms
is "either commensurate in scope with or broader than the registrants
within the scope of the charter."  To ensure that requirements that
policies made under ICANN's policy ambit are developed in a manner that
involves all affected, whether directly by ICANN or through delegation
to a Sponsor, subsection 4.2 of the sTLD agreement sets forth a series
of requirements on how the Sponsor may exercise delegated authority:

"4.2. General Obligations of Sponsor. During the Term of this Agreement,

Sponsor shall, in developing or enforcing standards, policies,
procedures, or practices within the scope of its delegated authority
with respect to the Sponsored TLD:

"4.2.1. publish such standards, policies, procedures, and practices so
they are available to members of the Sponsored TLD Community;

"4.2.2. conduct its policy-development activities in manner that
reasonably provides opportunities for members of the Sponsored TLD
Community to discuss and participate in the development of such
standards, policies, procedures, or practices;

"4.2.3. maintain the representativeness of its policy-development and
implementation process by establishing procedures that facilitate
participation by a broad cross-section of the Sponsored TLD Community;

"4.2.4. ensure, through published procedures, adequate opportunities for

members of the Sponsored TLD Community to submit their views on and
objections to the establishment or revision of standards, policies,
procedures, and practices or the manner in which standards, policies,
procedures, and practices are enforced;

"4.2.5. ensure that any revenues received by Sponsor or any affiliated
entity directly or indirectly from the provision of Registry Services
are used solely for the benefit of the Sponsored TLD Community; and

"4.2.6. ensure that any contract with a Registry Operator precludes any
control by that Registry Operator over the policy-development process of

the Sponsored TLD."

<http://www.icann.org/tlds/agreements/sponsored/sponsorship-agmt-29aug01.htm#4.2>

II.  Contradictions in Unrestricted, Sponsored TLDs.  In attempting to
overlay this sponsorship concept on a wholly unrestricted TLD, the task
force report raises many difficulties.

(a) Scope of representation.  Because the TLD is proposed to be
unrestricted (both as to existing registrations and future
registrations), the affected community is unbounded.  The justification
of delegating ICANN's responsibility to an organization that can
represent a narrower community in a more focused way (than ICANN) is
simply absent.  Correspondingly, the Sponsor of a wholly unrestricted
TLD carries the full weight of representing the entire Internet
community.  Since it carries ICANN's full representational
responsibility, the sponsor in essence becomes a second ICANN, which
should be subject to all the procedures ICANN must follow, including
taking into account all the views of all segments of the Internet
community.

(b)  Scope of delegation.  The difficulties of the attempt to combine
sponsorship and a prohibition of restrictions is also apparent from the
limits the task force report proposes on the Sponsor's authority.  The
recently completed sTLD agreements set forth seventeen items as to which

policy-development responsibility is delegated to the Sponsors in
attachment 2 to the agreements:

.aero:
<http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att2-20nov01.htm>

.coop:
http://www.icann.org/tlds/agreements/coop/sponsorship-agmt-att2-06nov01.htm>

.museum:
<http://www.icann.org/tlds/agreements/museum/sponsorship-agmt-att2-20aug01.htm>

These delegated items fall into six broad categories:

A.  naming conventions within the TLD, restrictions, and name-selection
principles (items 1-5 and 14);

B.  additional dispute-resolution mechanisms (item 6);

C.  selection and supervision of the registry operator (items 7-9);

D.  selection of qualified registrars, practices of registrars, and
terms of dealing of registrars with registrants and the registry
operator (items 10-13);

E.  start-up of the TLD (item 15); and

F.  Whois policies (item 16).

(Item 17 generally supports implementation of the prior 16 items.)

Comparing this list of delegated items with the task force report makes
clear that the task force report envisions that only a small slice of
this authority will be delegated.  Instead of proposing to find an
organization representative of a distinct sub-community and thereby
allowing that community to formulate basic policy, the task force report

at one point  appears to give no delegation of authority at all.  As
point 6 of the task force report says:  "TLD administration must adhere
to policies defined through ICANN processes, such as policies regarding
registrar accreditation, shared registry access, dispute resolution, and

access to registration contact data."  If this provision means what it
literally says, the TLD simply would not be sponsored at all.

At other points in the report, however, it appears to propose to give
the Sponsor broader policy authority.  Point 2b, for example, indicates
that the Sponsor might be responsible for "accreditation of registrars";

this seems at odds with the language of point 6 quoted immediately
above.  This leaves unclear what the role of the Sponsor is--can it
dictate who can be and who cannot be a registrar?  This is only one of
several ambiguities in the report's proposed role of the .org sponsor
and for ICANN.

III.  Sponsored Status Is Unnecessary in an Unrestricted TLD.  The
confusing character of the report's proposal of an unrestricted,
sponsored TLD is unnecessary.  Operators of unsponsored TLDs (VeriSign,
NeuLevel, Afilias, and Global Name Registry) are responsible for
operating their businesses within well-defined, but expansive, bounds
set forth in their registry agreements.  This business discretion would
appear to allow the flexibility that the task force sought to "promote
and attract" registrations from the community of non-commercial (broadly

defined, including cultural, expressive, etc.) organizations.

It should be emphasized that there is no reason that a uTLD operator
must be commercial.  A non-profit entity could readily be selected as
the registry operator and then outsource the back-end to a commercial
entity (similar to Afilias's outsourcing to Liberty).

As noted in the 15 August 2000 "Criteria for Assessing TLD Proposals"
document, some degree of policy-formulation responsibility is devolved
in both uTLDs and sTLDs:

"In the context of unsponsored TLDs, this can appropriately be
accomplished for many operational matters by giving the registry
operator flexibility in the registry contract. For restricted TLDs, some

have suggested a "sponsorship" model, in which policy-formulation
responsibility for the TLD would be delegated to a sponsoring
organization that allows participation of the affected segments of the
relevant communities."

<http://www.icann.org/tlds/tld-criteria-15aug00.htm#7>

The task force report states that sponsorship is beneficial because it
can give the non-commercial community greater influence over (a) the
image of .org presented to the public; (b) distribution of surplus
revenues; and (c) selection of management personnel.  All these things,
however, could readily be handled in the unsponsored TLD context.
Operators of uTLDs routinely engage in marketing and select their
management personnel.  They also choose what to do with any surplus
revenues.

As well-stated by Bret Fausett in his 1 December 2001 icann.Blog article

entitled "Sponsored, Unrestricted .Org":

"So it's not entirely clear what a sponsoring entity would do when
overseeing an unrestricted TLD. Each of the possible benefits listed in
the report ("Sponsorship is beneficial because...") also would be
realized simply with a new registry operator and some guidelines for
operation built into a new .org registry accreditation contract. To my
way of thinking, all the Task Force's proposed change would do is create

a new level of bureaucracy for .org domain name registrants and
registrars."

That view counsels strongly in favor of reforming the task force's
recommendations to call for an organizational structure that is either
(a) sponsored and restricted (like .museum), (b) unsponsored and
restricted (like .name or .biz), or (c) unsponsored and unrestricted
(like .com or .info) - but not sponsored and unrestricted.

Please let me know if I can provide further information on these points.

Best regards,

Louis Touton

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 121k members/stakeholdes strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
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