RE: [registrars] Taskforce for New RAA Discussions

["John Berryhill" <john@xxxxxxxxxxxxxxxxx>]

> Personally, I am not aware of any compelling reasons why the RAA needs
> to be renegotiated.

One of the points that came up in the Deletes Task Force was a general
structural issue concerning the RAA.  In representing domain registrants
which, collectively, control around 1% of the entire registered .com
namespace, I got to hear a lot of registrars opinions of other registrars'
adherence to one or another provision of the RAA at any time, and the common
refrain that there is no enforcement, really, of any of the provisions.  So
what if a registrar does not follow the rules with respect to, say, 10
domain names out of several million that registrar manages?  Or so what if a
registrar habitually fails to follow a particular RAA provision?

The fundamental structural problem with the RAA is that it is a
all-or-nothing proposition.  You breach one rule, and you breach the
contract.  The only thing that ICANN can do is to yank your accreditation.

What "normal" lawyers do when writing a contract or a system of rules is
pretty simple.  For each rule, there is a consequence of that rule not being
followed.  Of course, for a real contract, that has to cut both ways.

The transfer dispute policy, despite serious flaws therein, is probably the
first time that an ICANN policy has moved from this odd expectation of "if
there is a rule it will be followed", to one of "if you did something wrong,
then there will be some downside short of the Apocalypse" - i.e. there is a
'loser pays' principle embodied in the transfer dispute policy.  For that
reason, the policy will probably never be invoked, since whether a registrar
is going to win or lose should be bleedingly clear from the materials
required under the policy.

But, absolutely, if a registrar in, say, a Pacific island country, requires
certified mail, a notarized signature, and a fee for authorizing an outbound
transfer, then there should be some way of obtaining compliance short of
threatening de-accreditation (which would impact all of the other
registrants of that registrar).  Or if, say, a registrar knows that it does
not provide a user-accessible unlocking mechanism for, oh, several thousand
.org domain names, then a system of graduated, proportionate penalties
embodied in the RAA would make a lot of sense.

That is not a specific suggestion, but a recurring theme that is heard where
I sit is that ICANN makes lots of rules, and those rules are regularly
ignored without consequence.  The basic problem is that there is no
consequence for non-compliance short of de-accreditation.  It is as if these
things are written on the assumption that all people are so pure of heart
that breaking a rule, even once, or a few times, or ten times a week, would
simply be incompatible with human nature.

Besides, the Ombudsman could use a to-do list.

John Berryhill