[council] Suggestion re .org TF report

["M. Stuart Lynn" <lynn@icann.org>]

Dear Milton:

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
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Marina del Rey, CA 90292
Tel: 310-823-9358
Fax: 310-823-8649
Email: lynn@icann.org