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

  • To: "Nevett, Jonathon" <jnevett@xxxxxxxxxxxxxxxxxxxx>
  • Subject: Re: [ga] GNSO Council: Taking 21 months to arrive at bad decisions
  • From: Karl Auerbach <karl@xxxxxxxxxxxx>
  • Date: Tue, 04 Sep 2007 19:08:19 -0700

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

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?


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