[council] Fake renewal update

[Mason Cole <mcole@xxxxxxxxxx>]

Councilors --

On the subject of GNSO action on fake renewal notices, you recall I volunteered 
to investigate with the Registrar Stakeholder Group various alternatives to 
evaluate the most effective method for addressing the problem.

In my 11 September 2012 email to the council, registrars proposed the following 
steps as a way to arrive at a solution:

1. Discuss the issue with ICANN Compliance to make SG and GNSO concerns known, 
as previous legal actions may impact renewal of offenders' 
accreditation agreements.  
2. Communicate to jurisdictional authorities as a SG to make our concerns known 
and to assess renewed enforcement – especially authorities like the FTC and the 
Canadian consumer agency that have already brought cases and may have stronger 
enforcement tools (e.g., civil penalties for violations of settlement 
agreements, etc.) that can be used. 
3. Report findings to the GNSO Council.
4. Investigate whether or not enforceable contract language can be crafted, and 
the extent to which it could be equally or more effective than enforcement 
actions to date.  For example, rather than requiring ICANN to make a 
determination about the behavior, a contractual provision that says 
accreditation can be revoked where a registrar has been found to be in 
violation of a court order or regulatory cease and desist order.
I spoke with the compliance team, as promised.  They are well aware that one 
actor is particularly infamous for this practice, and has been subject to 
American and Canadian consumer protection actions in the early to mid part of 
the last decade.  We don't have any evidence obviously of how he responded to 
those actions, except that we know the offenses persist.

There have been comparatively minimal complaints made to compliance -- fewer 
than 100 since 2008 -- on this subject (no matter who the actor).  This DOES 
NOT suggest it's a small problem -- only that ICANN doesn't receive many 
complaints about it.  Others certainly do.  Complaint volume contributes to 
issue prioritization, as you might know, and therefore this has been 
comparatively low on their operational priority list.  

Further, the accreditation agreement, as discussed, doesn't address marketing 
speech, a thorny area to begin with.  Enforcement against the actor might, 
however, be pursued by looking at previous action by US and Canadian 
governments to see if it can be used against their accreditation.  However, 
registrars believe it is inappropriate to do so without clearer understanding 
of applicable law and a plan for what would happen to end-user names if the 
accreditation were to be revoked.

The RrSG's recommended next step is to collect evidence of the activity and 
provide it again to consumer protection authorities.  We conferred with our 
legal advisor about this.  In the US, the Better Business Bureau helps 
consumers and businesses form very effective complaints for the immediate 
attention of consumer protection authorities, and our advisor is prepared to 
call on relationships she has with the BBB and the authorities to fast-track 
the issue.  To be fair, since their previous action, they may be unaware that 
the actor is up to his old tricks.  

This approach, we believe, has two benefits:

1. The FTC and others handle consumer protection matters full time and are far 
better prepared to take binding action that will have enforceable impact.  We 
recognize previous action was not ultimately effective -- which says that if 
the FTC as consumer protection experts have difficulty, the GNSO is likely to 
have more difficulty in rooting out the problem.

2. Another judgment could give Compliance a more firm route to enforcement via 
the terms of the accreditation. That is, another judgment on record can be the 
basis of pursuing the accreditation itself.

I have asked registrars to provide documentation of the offending behavior, 
which they have begun to do.  Further, the DT collected input an evidence of 
the behavior during its work, which I've added to the documentation.  We will 
form this into a complaint for authorities in our respective jurisdictions and 
ask for immediate attention.

We're aware there is impatience in the community on this problem (where ISN'T 
there impatience in the community?) but as we've said before, the critical 
element is to be effective, or we'll end up talking about this again a year 
from now.

I would ask the Council to observe the results of this step before we move 
forward with another option that may not have the impact we intend.

I'm happy to review this in any of our sessions in Toronto, or to speak with 
any of you individually about it.  While there are some allowances on issues of 
predatory marketing, please keep in mind our ongoing obligation to stay within 
anti-trust rules when discussing our competition (even if it's a bad guy).

I will keep the Council updated as this progresses.

Thanks --

Mason