[wg-c] Re: Proprietary TLDs (was: scope and TLDs)

[Milton Mueller <mueller@syr.edu>]

Eric Brunner wrote:

> 2. A delegation is sought. Postel didn't create Crown Soverignty by the .uk
> creation, ICANN won't either. ICANN operates under private law, those of a body
> incorporated in the State of California.

Wrong on both counts.

Please examine the GAC's discussions of the relationship between sovereignty and
ccTLDs. They are not resolved yet. With respect to .naa, here is a typical
comment submitted in the public record in support of your application:

"To Whom it may concern: Please seriously consider thsi position paper [E].
Tribal sovereignty must be recognized at all levels."

Here's another comment:

"Many Indian Nations cross boundaries of states and countries.  Many have their
own tribal governments, economies, child welfare systems, etc.  Many of our
Nations have more governmental structure and sophistication than numerous
emerging growth nations throughout the globe that would be granted a gTLD simply
by asking.  Why should we, as Indian Nations, be required to meet a higher
standard?"

It is clear that the application is being sold to your constituency as an
expression of sovereignty. However, please be reminded that my comment was not an
attack upon your sovereignty claim or upon your application for a delegation on
that basis, which are both issues that do not concern me. The point was that you
are asking for an exclusive property right that is as strong if not stronger than
IOD's. And that argument is not undermined in the least by Kent's attempt to play
a shell game with "operational" and "jurisdictional" scope. Property owners can
delegate operational matters to whomever they please. If they do the delegating,
they are the owner.

> 3. an application to do something is a position paper.

No, it isn't. A position paper at this level of the DNSO is a statement of
policy. Policy defines rules and principles to decide such things as how many
gTLDs there should be, who gets them and under what circumstances. Policy is
about building consensus about rules, principles and norms. Once the policy is
determined, then we can talk about specific applications and whether they best
represent the ends of the policy.

Fact is, you (NCAI/AFN) are just one of many prospective TLD operators. A
slightly less self-centered way to approach this would have been to join forces
with other aspiring TLD applicants in favor of an expanded name space, a policy
that increases every legitimate aspirant's chances of success. You have instead
chosen to pose as a special case, and have regularly denigrated other prospective
registry operators on the basis of their motives. (profit vs. .....well, what are
your motives?)

I will not stoop to speculating about your motives, in either a positive or
negative way. Suffice it to say that there are many ways to profit from things.
Political benefit and social esteem within your community are forms of profit,
and can be just as beneficial or destructive as monetary profit in the way they
affect people's behavior.

> 4. originally we suggested seven regionals (1997), but a) we're ready and b)
> 6-10 provides a real constraint,

I am gratified to see that you recognize the suboptimal choices that are imposed
on us by artificial constraints on the name space. And by the way, the constraint
of 6-10 is artificial, not "real." You were free to express support for position
papers that took an unambiguous stand in favor of an unconstrained or less
constrained name space. You seem to have passed up that opportunity.

In an environment of self-imposed scarcity (6-10), we will have a hard time
justifying, on policy grounds, handing out a TLD to an organization that, at
best, seems to represent a few hundred registrants, and one that perpetuates
North American dominance of the gTLD space. Perhaps you can provide some rule or
principle or selection criteria that would justify your claim in an artificially
constrainted environment. If not, you are welcome to add your name to Position
Paper B.

> 5. The term limit and property claims revisits 2, above. Asked and answered.

OK. There are no defined term limits to ccTLDs, so there are none to your
application, either. Everybody clear about that? Under RFC 1591, there is no
requirement that the registry be shared or non-profit, either. I'm glad we agree
about this.

> 6. NSI won't have record create or modify access to the registry, based on
> practice. The IANA won't have similar access to the registry, based on
> jurisdictional claims. Some ccTLD registry operators may have record create or
> modify access to the registry if it solves reasonable problems reasonably.
> There are no other non-hyothetical registry operatrs.

I don't understand the relevance of this.

> 7. This proposal assumes ICANN has the capacity to exercise discretion.

In general, a blanket statement that an international body parcelling out
potentially valuable resources and rights should "exercise discretion" is a
pretty poor excuse for a substantive policy. Our job in this WG is to develop
rules, criteria, and procedures for limiting decision-by-discretion. A certain
level of foresight and objectivity is required, indeed, substantial doses of
skepticism and even cynicism are useful in formulating these rules, because the
people "exercising discretion" now are not the ones who will be doing it
tomorrow. And even the people you know and think you trust can be corrupted by
too much discretion.

--MM