[ga] Escrow Concerns

[Danny Younger <dannyyounger@xxxxxxxxx>]

My thanks to Joop and to Bill Nichols for the timely reminder to avoid flaming on this list.  
 
I'd like switch the discussion away from ICANN politics for a moment to raise an at-large issue that has been on my mind for some time:  the risk to registrants posed by the failure of registrars to escrow data.
 
I came across the following within the last register.com quarterly report:  
 

Our business would be materially harmed if our computer systems become damaged. 

We currently do not have a comprehensive disaster recovery plan in effect and our systems redundancies are not geographically distributed. We have no current plans to add additional facilities to make our systems geographically redundant. Fires, floods, earthquakes, power losses, telecommunications failures, break-ins and similar events could damage these systems and severely harm our business because our services could be interrupted for an indeterminate length of time. Computer viruses, electronic break-ins, human error or other similar disruptive problems could also adversely affect our systems. 

 
If one of the largest accredited ICANN registrars does not have a disaster recovery plan in effect, then what can we expect of the other hundreds of smaller registrars?  There was a time when ICANN had discussed a registrar escrow test-bed program (see http://www.icann.org/escrow/registrar-escrow-08nov01.htm ).  
 
I don't recall ever having seen an ICANN report on this program even though the current ICANN Strategic Plan indicates that ICANN will be "providing data escrow coordination and services where appropriate".  Is anyone aware of the status of this testbed?  Does it exist?  Is data currently being escrowed by any ICANN registrars?
 
The Registrar Accreditation Agreement states:  
3.6 Data Escrow. During the Term of this Agreement, on a schedule, under the terms, and in the format specified by ICANN, Registrar shall submit an electronic copy of the database described in Subsection 3.4.1 to ICANN or, at Registrar's election and at its expense, to a reputable escrow agent mutually approved by Registrar and ICANN, such approval also not to be unreasonably withheld by either party. The data shall be held under an agreement among Registrar, ICANN, and the escrow agent (if any) providing that (1) the data shall be received and held in escrow, with no use other than verification that the deposited data is complete, consistent, and in proper format, until released to ICANN; (2) the data shall be released from escrow upon expiration without renewal or termination of this Agreement; and (3) ICANN's rights under the escrow agreement shall be assigned with any assignment of this Agreement. The escrow shall provide that in the event the escrow is released under th!
is
 Subsection, ICANN (or its assignee) shall have a non-exclusive, irrevocable, royalty-free license to exercise (only for transitional purposes) or have exercised all rights necessary to provide Registrar Services.

While the language is in the contract, I am not sure that this provision is being enforced.  If it was being enforced, then I doubt that we would have seen the accusations of purloined data in the Dodora v. Directi case (see http://webserv5.dodora.net/litigation/ ) as escrowed data would have rendered some of the arguments moot.  

Can anyone in ICANN management or in the registry/registrar community offer some insight?

 

		
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