[alac] Re: Our comments on new biz, org, and info contracts

[Wendy Seltzer <wendy@xxxxxxxxxxx>]

At 12:21 PM 9/5/2006 -0400, John L wrote:
> The board is meeting in two days.  Do we care enough to send them 
> something, like we said we would?

Thanks John, I agree it's important that we follow up.


> Suggested points:
>
> 1.  The .org contract has three years to run.  There is no need to 
> change it now.  The other two contracts are not in any immediate 
> danger of expiring, either, so the rush to revise them is baffling 
> and contrary to ICANN's principles of stability and transparency.

[Bret's point: The GNSO is currently involved in policy development 
on registry contractual conditions.
Contracts that expire before the GNSO has completed its current policy
development process on registry contractual conditions should be renewed on
the same terms as in the expiring contract, subject to revision to conform
with adopted policy recommendations. ]

> 2.  Once a user has selected a domain, that domain's registry is the 
> monopoly supplier of renewals.

The domain name is, by design, a unique opportunity to establish a 
stable identifier online.

>  Uniform pricing from that monopoly supplier is an important part 
> of the stability of the net.  Millions of people have bought 
> domains on the expectation of being able to renew them at about the 
> same price.  Prepaying for 10 years is not a substitute for 
> stability, both because 10 years is not a long time in real life, 
> and because it forces users to buy defensive renewals they wouldn't 
> otherwise do.

(and because there's no reason to give that windfall to registries)


> 3.  Nobody has ever suggested that registries are not profitable at 
> the current capped price nor are they unwilling to make needed 
> investments in infrastructure.  Indeed, the experience of the .net 
> renewal strongly suggests that even at $3 there would be multiple 
> well qualified candidates to run large registries.
>
> 4.  The current system of fixed price caps has worked well for 
> registries, registrars, and most importantly for users since ICANN 
> began.  Removing price caps would needlessly benefit registries at 
> the expense of users. So don't.
>
> Perhaps Wendy can add a few more points on other bad things in the 
> proposed contracts.

5.  Traffic data, even that which has undergone some anonymization, 
may still contain sensitive personal or competitive information.  At 
a minimum, more public consultation should be held before registries 
are permitted to use that data.

6. These contracts are explicitly designed for the benefit of users 
of the DNS.  Remove the "no third-party beneficiaries" language to 
enable relying registrants and users to police their own interests.

7. Periodic re-bidding serves as a stronger check on bad behavior 
than the weak arbitration and mediation provisions within the 
contract.  The nearly-guaranteed perpetual renewal should be dropped.
[preempting a possible claim of "contradiction": Unlike the provision 
to users of a unique consistent domain name, these aren't sole-source 
services.  Although there's only one registry at one time for a given 
tld, any of several qualified parties could provide that service.]


I also mentioned in my own comments concern about limiting the range 
of reasons for which ICANN can reject a new registry service.  Do 
others share that concern?
--Wendy


--
Wendy Seltzer -- wendy@xxxxxxxxxxx
Visiting Assistant Professor of Law, Brooklyn Law School
Fellow, Berkman Center for Internet & Society
http://cyber.law.harvard.edu/seltzer.html
Chilling Effects: http://www.chillingeffects.org