[bc-gnso] Registry Code of Conduct in new gTLD Agreement

[Steve DelBianco <sdelbianco@xxxxxxxxxxxxx>]

Here's a follow-up to our policy discussion on last Thursday's call, in 
preparation for our Guidebook discussion this Thursday 18-Nov ( 10am eastern US 
time, dial-in to follow )

Now that vertical integration is permitted, we noted it was critical to have 
specific restrictions in the Code of Conduct section of the new Registry 
agreement.

As Jon Nevett noted on the call,  ICANN created a Code of Conduct as part of 
its 2001 agreement with NeuLevel to run the .biz gTLD.
http://www.icann.org/en/tlds/agreements/biz/registry-agmt-appi-27apr01.htm

There were several restrictions in the .biz code of conduct worth noting:
1. NeuLevel will not, directly or indirectly, show any preference or provide 
any special consideration to any registry operator or Registrars in the .biz 
Registry versus any other registry operator or Registrars

3. NeuLevel shall not in any way attempt to warehouse domain names. In 
addition, Registry Operator shall not attempt to register domain names in its 
own right, except for names designated for operational purposes in compliance 
with Subsection 3.6 of the Registry Agreement. In its Monthly Report to ICANN, 
NeuLevel shall include a list of all names designated for operational purposes.

5. Neither NeuLevel nor related entities shall have access to user data or 
proprietary information of a Registrar, except as necessary for registry 
management and operations.

6. NeuLevel will ensure that no user data or proprietary information from any 
Registrar is disclosed to related entities, except as necessary for registry 
management and operations.

7. Confidential information about NeuLevel's business services will not be 
shared with employees of any DNS registry operator or ICANN-Accredited 
Registrars, except (i) as necessary for registry management and operations or 
(ii) if such information is made available to all registry operator employees 
and Registrars on same terms and conditions.

For comparison purposes, the new Registry agreement issued on Friday includes  
a new Code of Conduct (Specification 9).
http://icann.org/en/topics/new-gtlds/draft-agreement-specs-clean-12nov10-en.pdf

SPECIFICATION 9*
Registry Operator Code of Conduct

[*Note: This draft Registry Operator Code of Conduct has been added to the form 
New gTLD Agreement pursuant to the ICANN Board resolution of 5 November 2010 
regarding the question of cross-ownership of gTLD registries and 
ICANN-accredited registrars. ICANN encourages community input on the types of 
conduct that should be prohibited and/or mandated given the potential for 
cross-ownership of domain-name distribution channels.]

1.    Registry Operator will not, and will not allow any parent, subsidiary, 
Affiliate, subcontractor or other related entity (each, a “Registry Related 
Party”) to:
a.    directly or indirectly show any preference or provide any special 
consideration to any registrar;
b.    register domain names in its own right, except for names registered 
through an ICANN accredited registrar that are reasonably necessary for the 
management, operations and purpose of the TLD;
c.    have access to user data or proprietary information of a registrar 
utilized by or Affiliated with Registry Operator, except as necessary for 
management and operations of the TLD; or
d.    register names in the TLD or sub-domains of the TLD based upon a search 
of available names by any consumer (i.e., "front-running").

[Steve’s Note:  Should we restrict other ways to do front-running, aside from 
Whois searches?   The Registry sees nearly 100% of traffic for non-existing 
records.  That means a Registry can see all non-registered domain names that 
are typed (or mis-tyed) by users, indicating potential names to acquire for 
themselves ]

2.    If Registry Operator or a Registry Related Party also operates as a 
provider of registrar or registrar reseller services, Registry Operator will, 
or will cause such Registry Related Party to, maintain separate books of 
accounts with respect to its registrar or registrar-reseller operations.

3.    Registry Operator will, and will cause each Registry Related Party to, 
ensure that no user data or proprietary information from any registrar is 
disclosed to Registry Operator or any Registry Related Party, except as 
necessary for the management and operations of the TLD.

4.    Registry Operator will not disclose confidential registry data or 
confidential information about its registry services or operations to any 
employee of any DNS services provider, except as necessary for the management 
and operations of the TLD.

5.    Registry Operator will conduct internal reviews at least once per 
calendar year to ensure compliance with this Code of Conduct. Within twenty 
(20) calendar days following the end of each calendar year, Registry Operator 
will provide the results of the internal review, along with a certification 
executed by an executive officer of Registry Operator certifying as to Registry 
Operator’s compliance with this Code of Conduct, via email to [an address to be 
provided by ICANN]. (ICANN may specify in the future that the reports be 
delivered by other reasonable means.)

6.    Nothing set forth herein shall: (i) limit ICANN from conducting 
investigations of claims of Registry Operator’s non-compliance with this Code 
of Conduct; or (ii) provide grounds for Registry Operator to refuse to 
cooperate with ICANN investigations of claims of Registry Operator’s 
non-compliance with this Code of Conduct.