[ga] Re: [At-Large] Registrar Compliance and Enforcement

["Jeffrey A. Williams" <jwkckid1@xxxxxxxxxxxxx>]

Danny and all my friends,

  I am not sure, but I believe and it outwardly appears either
ICANN is not taking enforcement seriously, doesn't have the
necessary tools to effect adequate and fair enforcement, or
doesn't have the personnel resources either in number or
expertise.

Danny Younger wrote:

> http://www.ntia.doc.gov/ntiahome/domainname/jpacomments2007/jpacomment_160.pdf
>
> Excerpt from the GoDaddy submission to the NTIA:
>
> The tenth area of responsibility states that: "ICANN
> shall conduct a review of, and shall make necessary
> changes in, corporate administrative structure to
> ensure stability, including devoting adequate
> resources to contract enforcement, taking into account
> organizational and corporate governance 'best
> practices.'"
>
> ICANN has maintained a requirement for Registrar data
> escrow in the Registrar Accreditation Agreement (RAA)
> since at least 2001 (possibly earlier), but it is just
> now being implemented. Also, ICANN is just beginning
> to develop real efforts to improve its compliance and
> enforcement capabilities. Although good progress has
> been made in this area of responsibility, it is too
> soon to characterize either effort as successfully
> completed. In fact, RAA and Consensus Policy
> enforcement had been an all but ignored area up until
> the first major registrar failure, RegisterFly. The
> failure of registrars is inevitable and so a coherent
> and effective plan to deal with such failures is
> essential on ICANN?s part. In fact, no such plan
> currently exists.
>
> The problems associated with the failure of
> RegisterFly, for example, were exacerbated by the lack
> of any plan to deal with registrar failures, the
> inability of ICANN to enforce its RAA and Consensus
> Policies, and ICANN?s delay in implementing the data
> escrow requirement of the RAA. As a result, compliance
> efforts were ineffective and dragged out for over a
> year. During that time registrants suffered increasing
> problems ranging from the inability to manage their
> domain names to the outright loss of thousands of
> others.
>
> ICANN responsiveness to Registrars with an interest in
> compliance is also lacking at times. An example of
> this is our experience in assuming the RegisterFly
> domain names upon its failure. During the last few
> months leading up to RegisterFly?s loss of its
> Accreditation, Go Daddy engaged in negotiations with
> RegisterFly to acquire its portfolio of domain names.
> An agreement was reached and presented to ICANN with a
> request for the bulk transfer of the domain names.
> This was ultimately approved and the transfer took
> place within a few weeks.
>
> However, almost immediately Go Daddy came under fire
> for exercising its right under the Inter-Registrar
> Transfer Policy (IRTP) to deny transfer requests for
> 60-days after the bulk transfer had been completed. In
> fact, we were accused of not following policy on
> ICANN?s own blog. We had based our actions on section
> A.3.9 of the IRTP which allows a registrar to deny a
> transfer in cases where "a domain name is within 60
> days (or a lesser period to be determined) after being
> transferred (apart from being transferred back to the
> original Registrar in cases where both Registrars so
> agree and/or where a decision in the dispute
> resolution process so directs)." We did this as a
> precaution due to the state of many of the domain name
> records we received from RegisterFly and the numerous
> complaints we were getting about domain name
> hijackings and inaccurate contacts.
>
> We requested clarification on the policy from ICANN to
> be sure we were acting in accordance with the policy.
> To this day, we have not received a response. We did
> manage to get the editor of ICANN?s blog to print a
> retraction, but it only stated our explanation and the
> fact that we had requested clarification. We were
> never defended and no clarification was ever offered.
> This suggests either an inability or unwillingness on
> the part of ICANN to engage in simple contract
> interpretation, let alone "contract enforcement,
> [which takes] into account organizational and
> corporate governance 'best practices.?"
>
> There are numerous other instances where we have gone
> to ICANN in the past eighteen months for enforcement
> assistance and there was either no procedure in place,
> or ICANN simply ignored our requests. These instances
> include a variety of topics from straight forward
> domain name disputes to domain name transfer disputes
> to multi-registrar implementation disputes.
>
> For example, we currently have a request in to ICANN
> to enforce a variety of provisions in Section 3 of the
> RAA to cause a foreign registrar to implement the
> decision of a UDRP panel with respect to a domain name
> that was previously registered at Go Daddy. In this
> particular case, Go Daddy was attempting to comply
> with a UDRP ruling, but since the domain name was
> recently transferred to another registrar, Go Daddy
> must rely on the gaining registrar to implement the
> decision. Because the gaining registrar has been
> entirely uncooperative, we enlisted the assistance of
> ICANN to enforce the terms of the RAA. After several
> contacts, ICANN has been unresponsive in enforcing the
> UDRP ruling with the other registrar. It is unclear to
> us whether ICANN believes there is nothing they can do
> due to the lack of enforcement tools, or if ICANN
> believes there is nothing they should do for other
> reasons. Therefore it?s difficult for us to know what
> our next steps should be in resolving this dispute.
> This is not an isolated incident. Again, this suggests
> either an inability or unwillingness on the part of
> ICANN to engage in enforcement activities. This is not
> the response of an entity that has fully achieved its
> obligations regarding compliance and enforcement.
>
>       
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Regards,

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very often the accident of glory" - Theodore Roosevelt

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