Re: [ga] Provider/User Balance

["Richard Henderson" <richardhenderson@xxxxxxxxxxxx>]

Dear Vint and members of the GA list,

I feel I must support Danny Younger's very sharp analysis here, because it gets to the heart of one of ICANN's main weaknesses: its historic reluctance to "enforce" by means of its Registry and Registrar contracts.

The case highlighted by Danny is symptomatic of previous occasions when Agreements have been flouted, and the interests of "suppliers" put before the interests of millions of other people for whom the DNS and Internet functions primarily exist.

In short, these DNS functions do not exist "for the sake of registrars" and because registrars and many registries are simply profit-making companies set up to feed off the processes of "supply" their interests and decisions should always be subordinated to the wider interests and benefits of the actual users of the Internet as a whole.

Because it is almost impossible to legislate these matters at a global level (different sovereign states, for example, may take different views on WHOIS and privacy issues), it becomes even more imperative that ICANN steps up to the mark in terms of the "enforcement" of its Agreements/Contracts with Registrars and Registries.

Basically, it should become an underlying principle of the "right to operate through the ICANN-overseen functions" that from the outset, when a registrar enters into an Agreement to Operate with ICANN, they should accept that failure to adhere to agreements may result in suspension or termination of the right to operate. Such a devastating commercial consequence would result in much more (appropriate) control of the registrars and registries, and the subordination of their (purely commercial) interests to the wider interests of millions of other participants.

This does not mean that we should belittle the experience, insights and benefits of the registrar constituency: however, it is not acceptable that a group that simply exist to make money from "supplying" something that is not theirs, should be able to effectively overrule or thwart policies which impact on the people for whom the process and functions are actually meant to exist.

Vint, I engaged with you at some length over the registrar abuse (and some registry abuse) which occurred at the time of the .info Sunrise and then later during the launch of .biz. What became clear to me was that you (and ICANN as a whole) were either unwilling or unable to intervene. Registrar and Registry agreements were broken, to the disadvantage of ordinary consumers, but appeals to ICANN fell on seemingly deaf ears. ICANN would not intervene to require these constituents to adhere to their Agreements. Indeed, ICANN failed - over a period of more than two years - to even acknowledge my expressions of grave concern over the abuses which occurred.

I am not some eccentric and obscure 'conspiracist' who was fantasising about these abuses. I am in Senior Educational management and have also worked in the UK Prison Services as a Prison Governor (Warden in USA?) with responsibilities for hundreds of prisoners. I exist in the real world and I'm pragmatic. Do you suppose that I would have allowed my prisoners to have a right of overruling the institution on issues of security or conditions or date of release. They were in a subordinate relationship to the needs of the broader community of law-abiding citizens.

I therefore strongly support Danny Younger's point raised in his mail to you.

Registrars or Registrars want the right and privilege to benefit from the DNS functions that sustain the Internet and other resources. Fair enough. However the Internet and DNS does not exist for their sake. They are a subordinate part of the process. This subordination should be enforced by means of Agreements / Contracts. In order to make these Contracts stick, there must be clear and punitive consequences if the terms of their "right to trade" are breached.

In order to protect the interests of the broader worldwide community - for whom, actually, the Internet DOES exist - ICANN must be willing to "enforce" the terms of strong contracts with these "suppliers". This should extend, incicentally, to a mandatory Code of Conduct and an outright ban on warehousing domain names or the retention (at the expiry/deletes stage) for the purpose of selling at profit a resource which should not br theirs to re-sell.

At present, far too much influence is wielded in ICANN processes by the Registry and Registrar constituencies. Far too little influence is granted to the actual users of the Internet. ICANN has grown up - is certainly perceived as having grown up - as a small group of industry insiders who appear to gain mutual benefit from policy-making which they themselves control. In my opinion, Registrars and Registries - because they stand to gain financially from ICANN policies - should be allowed observer status only and should have a presence only in an advisory capacity. Otherwise there will always exist grounds for making accusations of "Conflict of Interest". Verisign have argued this recently, indeed.

I am not belittling the contributions of the DNS "Supply Industry". I am simply agreeing with Danny Younger that this industry should be subordinated, and that enforcement of Agreements / Contracts is a vital element in this process.

It goes without saying, that I believe the At Large (or community of net users) should be afforded much more power and influence on the ICANN Board. People around the world at present are questioning ICANN's right to determine or oversee policy on DNS. A reversal of Stuart Lynn's mistaken expulsion of At Large Directors would enable ICANN to say: "Look! ICANN is representative of the whole world and the whole internet community!" ICANN needs to move away from its appearance as a small Californian quango, answerable to only ONE country, and curtailed by its Registrar and Registry friends. It needs to be seen for what it should truly be: a guardian and steward of a resource that belongs to the whole world.

The other direction leads to Governmental control or UN control, and basic Internet freedoms and creative commercial development may be damaged that way, as I am sure you would agree.

ICANN needs to put its house in order and enforce clear and well-written Contracts. The era of buddies all just working together has passed, I fear.

With best wishes,

Richard Henderson
www.atlarge.org 
  ----- Original Message ----- 
  From: Danny Younger 
  To: vinton.g.cerf@xxxxxxx 
  Cc: ga@xxxxxxxxxxxxxx 
  Sent: Saturday, February 19, 2005 10:40 PM
  Subject: [ga] Provider/User Balance


  Dear Vint,

  Recently both the Registry Constituency and the Registrar Constituency acted to vote down the recommendations of the WHOIS Task Force.

  This was done in full knowledge that "If the Registrars and Registries voted against the report it would not be forwarded to the Board as a consensus policy, but as a majority proposal. The ramifications were that if it was not a consensus policy, the Board could not impose it on the registrars and registries and it would not become an automatic amendment to the contract."  (see http://gnso.icann.org/mailing-lists/archives/dow1-2tf/msg00250.html )

  This vote bothered me for a number of reasons:  Yes, I understand that these companies are not charities -- they have argued that the recommendations will cost some of them some money, and I know that these companies will only act either because competition demands it, or customers demand it, or because regulation demands it. 

  The problem is that the market imperative -- "let the providers decide" -- is often not in line with the result that the rest of society wants. 

  With respect to these particular WHOIS recommendations, the driving force behind the effort to have them implemented was the fact that registrants don't read shrink wrap agreements and therefore don't know that their contact information is being made publicly available through WHOIS; accordingly, they should be explicitly made aware of this fact separate from the agreement that they're not going to read.  

  Now, in terms of internet governance issues, a governing body could resolve this problem by demanding a change through industry regulation (if there were a governing body that was empowered to globally regulate).  Since we don't have such a global regulator, however, we must rely on the services that only ICANN can provide through the power of its contracts and bylaws.  

  So, if over the long haul the public interest is to be served, it appears to me that ICANN must consider inaugurating certain contract and bylaw changes so as to deny the provider segment the unilateral ability to effectively block the unanimous consensus of the user population.

  As ICANN begins the upcoming process of re-evaluating the RAA, I believe that it should also give thought to revising the voting schema currently in place within the GNSO Council that at present successfully manages to thwart the implementation of the public interest.  This may be accomplished by way of the Board's deliberations pursuant to the GNSO Council Review which envisioned the possibility of structural changes.

  The current "balance" within the Council favors the providers at the expense of the users.  An adjustment is warranted.

  Best regards,
  Danny Younger


------------------------------------------------------------------------------
  Do you Yahoo!?
  Yahoo! Search presents - Jib Jab's 'Second Term'