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[ga] [fwd] [alac] New gTLDs analysis -- Draft (from: wendy@seltzer.com)

FYI.  This will show up in the list archives later tonight.

Substantial comments are welcome -- feel free to send them to
forum@alac.icann.org (which is the publicly archived comments
address, I'm told), just the GA list, or your favorite ALAC members.

Thomas Roessler                        http://log.does-not-exist.net/

----- Forwarded message from Wendy Seltzer <wendy@seltzer.com> -----

From: Wendy Seltzer <wendy@seltzer.com>
To: Interim ALAC <alac@icann.org>
Date: Tue, 22 Apr 2003 12:24:09 -0700
Subject: [alac] New gTLDs analysis -- Draft
Envelope-to: roessler@does-not-exist.info
Delivery-date: Tue, 22 Apr 2003 21:25:42 +0200
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Here's some basic information and (suggested) position statements on 
the new gTLD issues before ICANN.  The GNSO's gTLDs Committee will be 
more likely to consider and incorporate our comments the sooner we 
send them, at latest by the end of April.  (Section II responds to 
the GNSO process.)

Comments welcome.  Thanks!

There are two distinct issues on the table regarding new gTLDs:
1. Criteria for introduction of a limited number of sponsored gTLDs 
as part of the Board's "proof of concept" initial round of TLD 
2. Whether to structure the evolution of the generic top level 
namespace in if so, how to do so.

The At-Large Advisory Committee has been invited to offer comments to 
the GNSO for use in formulating the GNSO's advice to the Board on 
question 2.


At-large Internet users are both domain name registrants and users of 
the domain name system.  As users, they are well served by TLDs that 
are not confusingly similar, enabling them to differentiate the names 
they encounter and minimize typographic or semantic mistakes;  they 
are also served by an inclusive namespace that provides access to a 
wide variety of speakers and information sources. As registrants, the 
"at large" are perhaps the most likely to be underserved by 
community-defined, chartered gTLDs.  Not all individuals are 
necessarily a part of any of these communities, yet they will want 
places to publicize their small businesses, engage in political 
debate, discuss their interests, and host weblogs, to name a few. 
Categorization and eligibility requirements will often act as 
barriers to entry to such registrants.  As a whole, at-large 
registrants are most likely to be served by a range of TLD options 
available to all potential registrants, including a variety of true 
generics for those that do not fit in neat categories.

These interests are compatible; confusion can be minimized without 
narrowly structuring registrations.  They are also compatible with 
ICANN's limited mandate.  ICANN should not be setting itself up as 
judge of the utility or fitness of business plans, but only as a 
technical judge of what is likely to create confusion or interfere 
with the functioning of the domain name system.

I. Criteria to Be Used in the Selection of New Sponsored Top-Level Domains

Report on Compliance by Sponsored gTLDs with the Registration 
Requirements of Their Charters

Both the paper and report on existing sponsored TLDs err in focusing 
primarily on exclusion:   Do the sponsored gTLDs represent a limited 
community and adhere to their charters by permitting registrants only 
from within that community?  The question more important  to the 
public's communicative goals, however, is the flip side:  Are there 
people or organizations who are left without logical places to 
register domain names, or who are denied registration in a sponsored 
TLD whose charter they fit?  It is easy to make the error rate 
arbitrarily low by asking questions that examine only one kind of 
error -- gTLDs could block all cybersquatters simply by refusing any 
registrations, but that would hardly serve the point of adding new 

Instead, the Board should look, in both the sponsored additions and 
in the general question of "structure," to ensuring that all who want 
to establish online presences can obtain domain names without 
interfering with names already assigned.

[add comments on Mueller/McKnight, Solum, Rader proposals]

II.  Whether the Generic Top-Level Namespace Should Be Structured

Draft 3.1.2 of the ICANN GNSO Council gTLDS committee report ("Draft")

At this stage, there appears to be general consensus on the GNSO 
gTLDs Committee to advise against "structure" in the first instance. 
As the Draft states, "It was agreed that a future expansion of the 
gTLD name space should take place in such a way that was 
demand-driven and bottom-up and in a way that increased competition 
while avoiding net user confusion and deception. To the extent that 
this report has a set of recommendations, it would seem there is 
support for the idea that the structure of the future gTLD namespace 
should be structured determined in a number of ways primarily by the 
choices of suppliers and end users in the market."    The ALAC 
supports this recommendation.  Market participants, including both 
businesses and non-commercial organizations, are better positioned to 
indicate where new TLDs are needed through demand and willingness to 
supply.  The ALAC supports the proposition that proposal of a name by 
a competent registry/delegant/sponsor provides the minimal 
"differentiation" necessary.  (Draft para. 14)

In order for market determination to be successful, however, ICANN 
must enable a genuine competitive market to develop.  At present, 
there appears to be some tension between market competition and 
desire to protect registrants from the consequences of registry 
failure (Draft paras. 10-12).  The intermediate road ICANN has taken, 
a heavily regulated market (rather than free market or openly 
acknowledged planning), tends to produce false assumptions and 
conclusions about what "the market" will support (and thus to justify 
further planning).    The ALAC supports the Draft's recommendations 
that zone file escrow and transfer arrangements be investigated as 
ways to mitigate registry failure.  The ALAC also recommends further 
examination of separation of the policy and technical roles of 
new-TLD-registries, such as Ross Rader's proposal for distinct 
Delegants (policy) and Operators (technical), see 

Consistent with openness to a variety of names and business models, 
ALAC supports expansion that allows both sponsored and unsponsored 
names.  (Draft para 15)

[Comments on IDNS?]


Appendix (chronology and references):
In October 2002, the ICANN CEO's action plan on gTLDs made the 
recommendation below.

Part III Recommendation: As ICANN proceeds with its new TLD 
evaluation process  - and, if the Board concurs, with an additional 
round of new sponsored TLDs - this basic question of taxonomic 
rationalization should be addressed within the ICANN process. 
Accordingly, it is my recommendation to the ICANN Board that the DNSO 
and its Names Council be requested to develop and submit its advice 
and guidance on the issue.

In December 2002, the Board agreed with the recommendation and 
made the three resolutions below.

the Board accepted the report of the ICANN New TLD Evaluation Process 
Planning Task Force (NTEPPTF) at its meeting on 23 August 

Whereas, at that meeting the Board instructed the President to 
develop a plan for action for approval by the Board;

Whereas, the 
President presented An Action Plan Regarding New TLDs for discussion 
at the Public Forum in Shanghai on 30 October 2002, and posted that 
Action Plan for public comment on 8 November 2002;

Whereas, comments 
have been received, posted, and evaluated regarding that Action 

Whereas, the Action Plan was again discussed at the Public 
Forum in Amsterdam on 14 December 2002; and

Whereas, the Action Plan 
recommends that key recommendations of the NTEPPTF report be 
implemented; that certain questions regarding the future evolution of 
the generic top-level namespace be referred for advice to the GNSO 
described in Article X of the New Bylaws approved in Shanghai on 31 
October 2002 and as further refined at this meeting; and that steps 
be taken towards approval of a limited number of new sponsored 

-         Resolved [02.150] that the Board authorizes the 
President to take all steps necessary to implement those aspects of 
the NTEPPTF recommendations as specified in the Action Plan;

Resolved [02.151] that the Board requests the GNSO to provide a 
recommendation by such time as shall be mutually agreed by the 
President and the Chair of the GNSO Names Council on whether to 
structure the evolution of the generic top level namespace and, if 
so, how to do so;

-         Resolved [02.152] that the Board directs 
the President to develop a draft Request for Proposals for the 
Board's consideration in as timely a manner as is consistent with 
ICANN staffing and workload for the purpose of soliciting proposals 
for a limited number of new sponsored gTLDs.

In February 2003, 
ICANN's general counsel  clarified that the Board asked for the GNSO 
Council to formulate and communicate its views on two separate 
questions. The questions are:

    a.  whether to structure the 
evolution of the generic top level namespace and,
    b.  if there 
should be structuring, how to do so.

In March 2003, at the ICANN Public Meeting in Rio, the President 
presented a paper:
Criteria to Be Used in the Selection of New Sponsored Top-Level Domains

The ALAC liaison to the GNSO for new gTLD issues intends to offer 
comments to the GNSO before the Council's May 22 final report 
(preferably enough time before for the comments to be discussed and 
Wendy Seltzer -- wendy@seltzer.com || wendy@eff.org
Staff Attorney, Electronic Frontier Foundation
Fellow, Berkman Center for Internet & Society at Harvard Law School

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