RE: [council] RAA Amendments

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

Thanks Kurt.  You are interpreting the RAA in a very narrow and
unprecedented way, as Section 4.2 simply says "policies may be established
on the following topics..."  It does not preclude policy on any other topic.
Has ICANN Counsel created this interpretation, or is it simply yours? 

Moreover, are these your personal opinions as to what falls within and
outside the 'picket fence' that you have now attempted to create?  Are they
ICANN Counsel's opinions?  Who is it ultimately that would make those
determinations (if we accepted for the moment that such determinations must
be made)?  Surely the GNSO Council's collective opinion on any such
determination ought to be at least as important as ICANN Staff's, and very
well might differ.  

In particular, it appears illogical to say that the Council can develop
policy on substantive issues, but cannot develop policy to enforce the
resulting rules (via notifications to registrars, auditing,
sanctions/suspension, etc.).  

Also I do not comprehend your attempted distinction between 'policy relating
to warehousing' and policy 'requiring registrars to comply with all RAA and
consensus policy requirements for names registered by the registrar'. 

Regardless of these concerns, I hope the Council will approve the path
forward that I have suggested, so that we can reach consensus as to a
package of amendments that can be implemented on a compulsory basis as soon
as possible.  That motion is on the table for Mexico City, so hopefully
Staff will give us its views on that motion as soon as possible, as well as
further responses to my specific questions above.

Thanks,
Mike


-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Kurt Pritz
Sent: Wednesday, February 18, 2009 11:39 AM
To: Council GNSO
Subject: [council] RAA Amendments


Dear All:

In follow up to my earlier comments and in response to some of the
subsequent discussion by the Council, I thought it might be helpful to
clarify the options available to ICANN in modifying registrar obligations
under the Registrar Accreditation Agreement (RAA).  My earlier comments
indicated that two paths were considered to incorporate amendments into the
RAA.
 
There are, of course, three ways by which registrar obligations under the
RAA can be modified:
 
The first option, which is described in the RAA, requires a report, approval
by a two-thirds majority of the GNSO, and ICANN Board action.  As indicated
previously, a new form of RAA adopted based on a two-thirds¹ vote of the
Council would take effect upon expiration of each registrar¹s five-year RAA.
With over 70% of all registrars' RAAs expiring between 1 June 2009 and 31
May 2011, the result would have been substantial (compulsory) adoption of
the new RAA and significantly improved availability of compliance
enforcement tools for most registrars. The proposed amendments did not
receive the requisite two-thirds vote for approval.  Staff will continue to
engage the GNSO membership to address outstanding concerns raised in the
process, to determine whether RAA amendment through this path may still be
viable.
 
The second option for amending the RAA requires Board approval and the
voluntary adoption of a revised RAA by registrars.  It is anticipated that
some forms of incentive would be required to encourage adoption as I
previously described.
 
The third option is the GNSO policy development process that has the ability
to modify the terms under which ICANN-accredited registrars do business
through the policy development process.  In particular, the RAA (at section
4.2: http://www.icann.org/en/registrars/ra-agreement-17may01.htm#4.2) allows
for the establishment and revision of policies and specifications in the
following areas:
 
4.2.1 issues for which uniform or coordinated resolution is reasonably
necessary to facilitate interoperability, technical reliability, and/or
operational stability of Registrar Services, Registry Services, the DNS, or
the Internet;
 
4.2.2 registrar policies reasonably necessary to implement ICANN policies or
specifications relating to a DNS registry or to Registry Services;
 
4.2.3 resolution of disputes concerning the registration of Registered Names
(as opposed to the use of such domain names), including where the policies
take into account use of the domain names;
 
4.2.4 principles for allocation of Registered Names (e.g.,
first-come/first-served, timely renewal, holding period after expiration);
 
4.2.5 prohibitions on warehousing of or speculation in domain names by
registries or registrars;
 
4.2.6 maintenance of and access to accurate and up-to-date contact
information regarding Registered Names and nameservers;
 
4.2.7 reservation of Registered Names that may not be registered initially
or that may not be renewed due to reasons reasonably related to (a)
avoidance of confusion among or misleading of users, (b) intellectual
property, or (c) the technical management of the DNS or the Internet (e.g.,
"example.com" and names with single-letter/digit labels);
 
4.2.8 procedures to avoid disruptions of registration due to suspension or
termination of operations by a registry operator or a registrar, including
allocation of responsibility among continuing registrars of the Registered
Names sponsored in a TLD by a registrar losing accreditation; and
 
4.2.9 the transfer of registration data upon a change in registrar
sponsoring one or more Registered Names.
 
These topics mark the boundaries of the "picket fence" within which policy
development under the current RAA is possible.  (A two-thirds GNSO majority
would still be required in order for such policies to be enforceable against
registrars, as is the case with the RAA amendment process.)
 
The current set of proposed amendments, reached through community
consultation and negotiation with registrars, would reach several areas that
are not ordinarily subject to policy development within the picket fence.
Please keep in mind that we are not evaluating the specific amendments, just
the realm of potential policy development, and also that our analysis may
not have taken all factors into account.  In other words, the determination
of what's inside the picket fence could conceivably result in a different
answer under different circumstances.
 
The following topics that were included in the original package of
amendments sent to the GNSO do appear to fall within the picket fence of
potential new obligations that could be imposed on registrars via Consensus
Policies:
 
·      Escrow of Whois Privacy/Proxy Customer Data
 
·      Registrant Rights and Responsibilities Document
 
·      Registrar Contractual Relationships with Resellers (where the
substantive topic lies within the picket fence)
 
·      Disclosure of Registration Licensee Contact Information
 
·      Registrar Disclosure of Its Own Contact Information
 
·      Operator Skills Training & Testing
 
·      Modification of Data Retention Requirements
 
Based on our initial review, the following topics that were included in the
original package of amendments sent to the GNSO appear to fall outside the
picket fence, and therefore could not be imposed on registrars via Consensus
Policies:
 
·      Registrar Auditing
 
·      Graduated Sanctions & Accreditation Suspension
 
·      Registrar Group Liability
 
·      Registrar Fees
 
·      Registrations by Registrars (the picket fence allows for policy
development related to warehousing of domains by registrars, but the topic
addressed by the proposed amendment - requiring registrars to comply with
all RAA and consensus policy requirements for names registered by the
registrar for registrar business use - would not be enforceable as a
Consensus Policy under the RAA)
 
·      Modification of Arbitration Rights
 
·      Accreditation by Purchase
 
·      Use of ICANN-Accredited Registrars (is a topic appropriate for policy
development by the GNSO, but it would not be enforceable through the RAA as
a "Consensus Policy")
 
·      Streamlined Requirements for Registrar Notification of New and
Revised Consensus Policies
 
·      Removal of References to U.S. Department of Commerce
 
It is our expectation that the GNSO will continue to evaluate the need for
and undertake policy development within the picket fence that would be
applicable to all registrars. Nevertheless, we still see strong value to
registrants and the greater Internet community in the proposed amendments,
even if they cannot be uniformly applied at this time.  In the event a
system of incentives is implemented to encourage voluntary adoption by
registrars, we will, of course, consult with the GNSO and its
member-constituencies as we have throughout this process, to solicit input
with regard to the most beneficial and meaningful ways and tools to
encourage registrar cooperation.

I hope this information is helpful and clear. I will answer what questions I
can and get answers to others.

Regards,

Kurt

Kurt Pritz
ICANN

4676 Admiralty Way, Ste. 330
Marina del Rey, CA 90292

+1-310-301-5809 (office)
+1-310-400-4184 (mobile)