RE: [council] RAA Amendments

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

Dan,

I interpret this differently.  The actual text, with my comments in
brackets:

Sec. 4.1  

4.1 Registrar's Ongoing Obligation to Comply With New or Revised
Specifications and Policies. During the Term of this Agreement, Registrar
shall comply with the terms of this Agreement on the schedule set forth in
Subsection 4.4, with

4.1.1 new or revised specifications (including forms of agreement to which
Registrar is a party) and policies established by ICANN as Consensus
Policies in the manner described in Subsection 4.3,

4.1.2 in cases where:

4.1.2.1 this Agreement expressly provides for compliance with revised
specifications or policies established in the manner set forth in one or
more subsections of this Section 4; or

4.1.2.2 the specification or policy concerns one or more topics described in
Subsection 4.2. 

[So I interpret this to plainly mean:  Registrar shall comply with ...
4.1.2.1 ... revised specifications or policies established in the manner set
forth in . . .]

4.3 Manner of Establishment of New and Revised Specifications and Policies.

4.3.1 "Consensus Policies" are those specifications or policies established
based on a consensus among Internet stakeholders represented in the ICANN
process, as demonstrated by (a) action of the ICANN Board of Directors
establishing the specification or policy, (b) a recommendation, adopted by
at least a two-thirds vote of the council of the ICANN Supporting
Organization to which the matter is delegated, that the specification or
policy should be established, and (c) a written report and supporting
materials (which must include all substantive submissions to the Supporting
Organization relating to the proposal) that (i) documents the extent of
agreement and disagreement among impacted groups, (ii) documents the
outreach process used to seek to achieve adequate representation of the
views of groups that are likely to be impacted, and (iii) documents the
nature and intensity of reasoned support and opposition to the proposed
policy.

4.3.2 In the event that Registrar disputes the presence of such a consensus,
it shall seek review of that issue from an Independent Review Panel
established under ICANN's bylaws. ...

[You guys seem to ignore the word "or" between 4.1.2.1 and 4.1.2.2, and the
words "one or more" in 4.1.2.1 -- and your interpretation would leave no
reason for 4.1.2.1 at all.  Section 4.2 does not create any 'picket fence'
as it says "may" (not "solely", "only", "limited to" or any such language),
and indeed reinforces the above text in its final sentence...]  

4.2 Topics for New and Revised Specifications and Policies. New and revised
specifications and policies may be established on the following topics: . .
.  Nothing in this Subsection 4.2 shall limit Registrar's obligations as set
forth elsewhere in this Agreement.

[The quote you cite from the GC's Briefing in 2002 just makes the point even
further, that any resolution that is achieved through Consensus Policy
process is contractually defined by Sections 4.1.2.1 and 4.3, and therefore
within scope.  Nothing in section 4.2 limits the meaning of section 4.3,
which is unlimited in scope so long as the process is followed.

I guess at very least, this ought to get clarified by amendment to the RAA,
while we're doing that otherwise?]



Mike Rodenbaugh
Rodenbaugh Law
548 Market Street
San Francisco, CA  94104
+1.415.738.8087
www.rodenbaugh.com


-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Daniel Halloran
Sent: Friday, February 20, 2009 10:32 AM
To: icann@xxxxxxxxxxxxxx; council@xxxxxxxxxxxxxx
Subject: Re: [council] RAA Amendments


Mike,
 
Thank you for your inquiry.  Both John Jeffrey and I consulted with Kurt and
his team before he sent his note, and we agree with the content.
 
I'm not sure I understand your reading of Section 4 of the RAA.  Subsection
4.1 <http://www.icann.org/en/registrars/ra-agreement-17may01.htm#4.1>
provides that registrars are obligated to comply with new "Consensus
Policies" only if (1) the policies are established according to the
procedure set forth in subsection 4.3, and (2) the policies are either
(4.1.2.1) on one of the topics expressly specified in the agreement or
(4.1.2.2) on the list of topics specified in subsection 4.2 (which has been
nicknamed the "picket fence").
 
I believe this interpretation of Section 4 has been consistent over the
years; please see for example the October 2002 "General Counsel's Briefing
Concerning Implementation of Policies by Registrars and Registry Operators"
http://www.icann.org/legal/briefing-on-implementation-20oct02.htm, which
stated that "In the consensus-policy provisions of ICANN's existing
agreements, registrars and registry operators have agreed to implement
policies developed after those agreements are signed only when: 1. The
policies are on a topic that is contractually defined as being appropriate
for establishment by ICANN S"
 
If you do not agree with the categorization in Kurt's note of which topics
are inside and outside the picket fence, that could be a subject for further
review and discussion ­ as Kurt's note indicated he was only conveying an
"initial review."
 
To clarify the two particular issues you raised, I don't think Kurt said
that Consensus Policies could not include enforcement provisions -- that's
different though from a hypothetical stand-alone modification to the RAA's
notice requirements, which we think would be outside of the picket fence.
Similarly, we see a difference between proposed new requirements for domains
registered by registrars for the purpose of providing registrar services
versus an outright prohibition on warehousing (which would be within the
picket fence).
 
I hope this is helpful.  Please feel free to let me know if you have any
further questions or if I can be of any other assistance.
 
Best regards,
Daniel Halloran
Deputy General Counsel
ICANN


> From: Mike Rodenbaugh <icann@xxxxxxxxxxxxxx>
> Reply-To: <icann@xxxxxxxxxxxxxx>
> Date: Wed, 18 Feb 2009 15:34:48 -0800
> To: Kurt Pritz <kurt.pritz@xxxxxxxxx>, <council@xxxxxxxxxxxxxx>
> Subject: RE: [council] RAA Amendments
> 
> 
> 
> 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)
> 
> 
> 
>