[nc-org] Suggestion re .org TF report (fwd)

[Cary Karp <ck@nic.museum>]

Here is the communication from Stuart Lynn dated 16 Dec. to which
Milton and I have been referring. I have some recollection of having
seen it in a message forwarded to the TF list (my copy came via the
NC list) but can't find it in the archives. Please forgive the
duplicate posting, in case I have simply done a poor job of locating
its predecessor.

/Cary

 -----

I have been following with interest the deliberations on the report
of the .org Task Force of the Names Council, in particular the
recommendation that the new structure be sponsored yet unrestricted.
I have a friendly suggestion to make that may be helpful to the Task
Force's and the Names Council's deliberations. Please feel free to
share this note with the Task Force.

Louis Touton has argued -- to my mind persuasively -- that there is
an inherent conflict between the two terms, "sponsored" and
"unrestricted".  He points out that, by definition, being sponsored
already implies being restricted (although one can be restricted
without necessarily being sponsored, just like .biz or .name).

In this note, I would go further to suggest that the inherent
objectives of the .org TF, as I understand them, can in any event
quite well be achieved without requiring that the new structure
follow the sponsorship model. These objectives can be achieved if
the new structure were *unsponsored* and unrestricted, but with
*limitations* contractually established that constrain its marketing
(and possibly other) practices. This could be coupled with some
advisory structure to some ICANN-established body that would monitor
the implementation of those limitations.

The .org TF report contains some interesting and important concepts.
I believe the approach I am suggesting here preserves these concepts
without imposing extra demands (like sponsorship) that it seems to
me would make it unworkable. Let me explain further.

As I see it, the main reason the .org TF advocates a sponsored
regime is to ensure that the new structure ensures marketing (and
possibly other) practices that follow certain constraints -- mainly
to encourage that new registrant applications are predominantly from
not-for-profit kinds of organizations and that new registrants from,
say, the commercial sector are discouraged. The TF does not wish --
and indeed suggests it does not know how -- to impose absolute
requirements that a *new* registrant be not-for-profit (no one seems
to disagree that all *existing* registrants, whether or not they are
not-for-profit, should be grandparented in). But as Louis
demonstrates, this is not what sponsorship is about. Sponsorship
includes precisely the notion that registrants are limited to a
well-defined community as described in the sponsoring organization's
charter, and that the activities of the sponsoring organization
reflect the will of that entire community. As I see it, the .org TF
proposal -- even as modified -- does not come close to meeting that
test. By definition, one cannot have a sponsoring organization where
anyone can be a registrant but where certain registrants are
excluded from the community that defines the directions of the
sponsoring organization.

However, what I suggest in the third paragraph above avoids this
conflict. There is clearly no conflict between unsponsored and
unrestricted. The regime was designed that way. And there is no
conflict in establishing requirements/guidelines for marketing
practices permitted by and through the registry and as such by
participating registrars.  It is important, since the manner in
which these marketing practices are guided affects the entire
(unrestricted) community of registrants/potential registrants, that
the guidance be done in a way that is accountable to the entire
Internet community, in other words through exercise of the
representative responsibility by ICANN rather than through some
delegation of that authority to a less-broadly-representative group.
Indeed, that is already done in the VeriSign agreements. In fact,
limitations are already inherent in every agreement (perhaps almost
by definition).

Please note: I am not opining here as to whether or not it is a good
idea to restrict marketing practices (although I do believe that the
.org TF gives good reasons why, in this case, they believe it makes
sense), only that the mechanism already exists for that to happen
without having to resort to the notion of a sponsored structure.

Give the concept a name, if you wish. Call it unsponsored and
unrestricted, but "limited". Personally, I do not think this is a
good idea because too many names only cause more confusion about
definitions. And, as mentioned above, all agreements contain
limitations. The only question is what kinds of limitations.

And then there is the question about how such limitations should be
monitored and enforced. One way is to leave this to the ICANN staff.
Ultimately in the extreme, if it comes to legal sanctions, perhaps
the ICANN staff do have to be involved. Bit it would be much more
desirable to leave as much as possible of all other work to the
organization responsible for .org. Legal sanctions are way along the
road of monitoring, discussing, negotiating, refining, persuading
etc. Much of this work can be done by an advisory board or committee
of people drawn from the community of people intended, in the .org
TF proposal, to form the sponsors. This board or committee could,
for example, monitor marketing practices being followed, advise the
responsible organization as to whether these practices are following
the limitations imposed by the agreements, and recommend what
changes need to be made to ensure conformance. This board or
committee would need to be staffed by people appointed by the
responsible organization.

I would be interested in knowing which of the .org TF's objectives
are not met by the overall arrangement I am proposing. It is
important, it seems to me, to clearly articulate the objectives, and
then find the means to achieve those objectives, rather than
allowing the means to become an end or objective in themselves.

Nothing in the above argues as to whether or not it is the right
idea to allow other than not-for-profits to register in .org in the
future (again, while grandparenting all existing registrants). If
the overall objective of the .org TF is to ensure a sponsored
structure above all other objectives (in other words, if that is a
objective in itself, not a means towards some other objective), then
some such restriction on registrants would seem to be be required.
Whether or not some such restriction is desirable can be argued
separately by the community. The .org TF report concludes -- and I
personally believe with some justification (although I am not
totally persuaded) -- that it would be difficult if not impossible
to define such a charter that limits future registrants to
not-for-profits, one that works internationally in an unambiguous
manner. Difficult, yes, but I am not convinced this would be
impossible. If the community felt that it truly wanted to see a
sponsored organization with a charter limiting future registrants to
not-for-profits (or that such a limit were a desirable objective in
its own right), I believe that willing minds can work out a suitable
and workable way of defining such registrants to ensure that
"leakage" would at worst be very minimal. But consideration of the
issue of whether or not to limit future registrants to
not-for-profits is not the main thrust of this document -- that is a
separate question.

I hope the above may be helpful to you as you consider the next steps.

With regards
Stuart

-- 

__________________
Stuart Lynn
President and CEO
ICANN
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292
Tel: 310-823-9358
Fax: 310-823-8649
Email: lynn@icann.org