Re: [ga] GNSO Council: Taking 21 months to arrive at bad decisions

[Karl Auerbach <karl@xxxxxxxxxxxx>]

Nevett, Jonathon wrote:

> In the wake of the RegisterFly controversy, you and other folks on this
> list have been advocating for ICANN to enforce requirements in the
> Registrar Accreditation Agreement (RAA) in order to better "protect
> registrants."  I have been very vocal in encouraging ICANN to enforce
> the requirements in the RAA.  Doing so is good for registrants and the
> DNS, as well as helps to level the competitive playing field for
> registrars.  
Would you be willing to support the inclusion of a provision into 
ICANN's registrar and registry contracts that gives to registrants an 
explicit role as third party beneficiaries with right to bring legal 
action to enforce the terms of those agreements even if ICANN or the 
registrar or registry choses not to?
To my mind one of the problems that has developed under ICANN is that 
ICANN is pretty much the blind, deaf, lazy policeman who wouldn't 
realize that a fire is burning until his toes start to smoke.  Just 
witness ICANN's numbness to the increasingly obvious symptoms of the 
RegisterFly situation as it developed.
Regarding accredited registrars.

First that begs the question why a TLD operator should be forced to use 
registrars at all.  That is an arbitrary decision that was made by ICANN 
that is nothing but social and economic engineering without a trace of a 
linkage to anything that has to do with the technical stability of DNS.
And let us skip over the fact that a large number of accredited 
registrars are not in the registrar business at all but are merely 
conveniences by larger aggregate entities to obtain an increased share 
of the polling bandwith to catch name drops.
So what is the argument for accreditation?  The argument has been that 
such is necessary to create a stable marketplace.  Marketplace for whom? 
 Buyers or sellers?  Or, as it seems, for third parties who want 
certain terms (e.g. whois and UDRP) imposed on all sales?
Let us step back and recognize that we are operating within a framework 
of laws that define unlawful and lawful behaviour.  ICANN, through the 
accreditation agreements has attempted to supersede that framework and 
substitute a framework adopted by ICANN and not by legislative 
authorities and courts.
Has it worked?  Not really.  The domain name markeplace is so full of 
corrupt and questionable behaviour that even a used car salesman would 
be ashamed to use such practices.
Of course there are some better registrars.  But I emphasize the word 
"some".  And over time the terms of registrar-customer contracts are 
becoming increasingly one sided in favor of the registrar, particularly 
with regard to what happens in disputes and at end-of-term, i.e. 
provisions that are largely overlooked by customers.  (Yes, I agree, 
caveat emptor is a reasonable policy, but if we are following the notion 
that ICANN's accreditation system is a form of consumer protection, 
caveat emptor is not generally considered part of the consumer 
protection toolkit.)
Why have consumers not gathered together and risen up against this 
system?  In part it is because when one looks at ICANN one sees, 
standing right behind ICANN, the looming bulk of the US Department of 
Commerce.  Any attempt by consumers to utilize existing laws would first 
have to fly through a flak of whether ICANN is a governmental 
instrumentality.
But let's say what ICANN says, that it is not an arm of the US 
government.  Then by what power does ICANN have the right to evade laws 
that prohibit the gathering of incumbent interests into a forum to set 
sales terms, prices, product specifications, and decide who may and who 
may not enter the marketplace?  In other words, why is ICANN, and the 
registries and registrars who gather in its policy making forums and 
councils, not an illegal combination in restraint of trade under the 
laws of the US or any other nation touched by the internet and ICANN's 
registry and registrar agreements?
So, to get back to your original question: Why do we complain in the 
mutually contradictory ways that ICANN ought to either be a better 
regulator, via accreditation, of registrars or abandon that oversight by 
allowing anyone to become a registrar to resell registry products?
The answer is that we need to protect our domain name butts.

If ICANN is to be a regulator, then it ought to be doing a damn sight 
better job than it is doing now.  And, to be a regulator, it needs to 
begin to establish a real legal foundation why it should be allowed to 
restrict domain name marketplace and shape it into an image that it 
finds lovely.  The question of legitimacy has been on the table since 
1997, and it has never been adequately answered.  Indeed the GAO, part 
of the US Congress, has twice found a vacuum where legal authority would 
have been expected.
And if ICANN is to continue the status quo of being a protector in name 
only, then those of us who need quality in our domain name purchases 
need to take self action.  One of those self actions would be to say 
"ICANN's choices of accredited registrars have been so bad that we want 
an non-accreditation system so that we can have hope that some 
(additional?) quality vendors will arise?"
Because, at the end of the day, if we are screwed by a registrar, 
whether accredited by ICANN or not, we have the laws of our countries 
and the laws of our states.
And if something is not unlawful, why should ICANN be in a position to 
prohibit it?
                --karl--