[council] Fwd: Statement on proposed settlement from ICANN ALAC

[Bret Fausett <bfausett@xxxxxxxxxxxxxxxx>]

Dear Councilors,

Below please find the Communique that the At Large Advisory Committee 
will deliver to the ICANN Board this afternoon.
         Bret

-------- Original Message --------
Subject:        [alac] Statement on proposed settlement from ICANN ALAC
Date:   1 Dec 2005 14:17:46 -0800
From:   John L <johnl@xxxxxxxx>
To: 	settlement-comments@xxxxxxxxx, forum@xxxxxxxxxxxxxx, "ALAC" 
<alac@xxxxxxxxx>

The ICANN At Large Advisory Committee at a meeting this morning adopted 
this statement about the proposed ICANN / Verisign settlement.
Regards,
John Levine, ALAC member and document scribe

-----------------------------------------------------
Concerns on the proposed ICANN / Verisign settlement
from the At-Large Advisory Committee
1 December 2005

1. We believe that it would be more appropriate to separate the lawsuit 
settlement from the contract renegotiation. If the settlement requires changes 
to the contract, ICANN and Verisign can amend the current contract to reflect 
settlement terms.
2.  We are concerned about the loss of accountability and oversight both of the 
community over ICANN and of ICANN over Verisign.  The external oversight of 
ICANN's budget currently provided by the registrars will no longer exist. The 
settlement provides no meaningful checks on Verisign's behavior, unless they 
misbehave so badly that ICANN  voids their contract.  As the registrars have 
pointed out, the proposed "consensus process" is new and untested.
3. We are concerned about the use and misuse of personal data.  Under the 
agreement, Verisign is allowed to do whatever data mining they want of COM zone 
usage and access.  For example, they could sell DNS traffic data about 
pepsi.com to Coca Cola, or about greenpeace.com and other political sites to 
governments whose policies they oppose. As a trustee for the Internet 
community, ICANN should provide appropriate protections for the community's 
data. We are also concerned that such data mining would be illegal in countries 
with data privacy laws.
4.  We believe that the proposed price increases for the .COM registry are 
inappropriate, since the registry is no longer required to offer any 
justification for them.  We are also concerned about the tripling of ICANN's 
per-domain fee.  Although the incremental cost to each individual user will be 
low, the aggregate cost to users will be in the tens of millions of dollars per 
year.
5. We are concerned by the lack of economic and legal analysis of the effects 
of the proposed settlement. To the extent that the .COM registry is a 
monopoly, it requires stricter regulation than if it is not. Analysis by a 
qualified economist of the price sensitivity and substitutability of .COM and 
other domains, based on the extensive historic data, should help understand the 
situation. Similarly, qualified legal analysis of the likelihood of success of 
ICANN's and Verisign's suits would help quantify the legal risks and costs the 
settlement would avoid.  Market forces can have an effect on .COM registry 
prices in two ways: (a) periodic rebids, and (b) a substitute service. The 
current proposal does away with the rebidding, and we doubt that .BIZ or .INFO 
or ccTLDs are a substitute for current registrants who already have branded 
their .COM address.
6. The proposed settlement makes Verisign the permanent source of the majority 
of ICANN's revenue.  By making itself dependent on an entity not accountable to 
the public, ICANN endangers its independence and hence endangers ICANN's public 
trust.
7. We share ICANN's concerns with the current budget and planning process, 
which depends in large part on registrar approval and quarterly financial 
contributions from numerous sources. We endorse a budget and funding mechanism 
that would provide ICANN greater certainty in the budget planning process and 
reduce the administrative burden on ICANN of billing and collections. 
Nevertheless, we believe very strongly that ICANN should consult with the 
registrant and At Large community before it fundamentally reshapes its funding 
mechanism through new contracts with the registries. Ultimately, funds paid to 
ICANN from registrars or registries come from us, the At Large community. We 
encourage ICANN to engage the community in a larger conversation about how it 
should be funded and how its budgets should be created and approved.
8.  We are deeply concerned by the lack of transparent process.  The current 
(2001) .COM contract had a specific renewal timeline that has been ignored, 
since the settlement includes a new contract that would void the current one. 
ICANN offered no timetable or process for consideration of the proposed 
settlement until forced to by the CFIT lawsuit.  The community does not know 
whether it has a  month or a year to collect its input and offer its advice, 
nor whether it may be possible to modify the proposed settlement or it simply 
has to be accepted or rejected.
9.  With these considerations in mind, the ALAC advises the board to reject the 
proposed settlement, to seek qualified advice on the econmic and legal aspects 
of any proposed settlement, and to seek a settlement that addresses our 
concerns.