Lack of Transparency in RAA Negotiations

["Garth Bruen" <gbruen@xxxxxxxxxx>]

Dear ATRT Members,

We all know that most of the new RAA negotiations happened behind closed
doors without much community participation. As an example of what can go
wrong in this opaque arrangement I offer up the changes to RAA 3.3.6 which
deals with bulk access to registrar WHOIS records. The change seems to have
entered through a side door and has left no verifiable fingerprints. 

The proposed changes to RAA 3.3.6 arrived from an unknown origin and without
prior disclosure. The September 2012 Summary Chart of RAA changes makes no
reference to changes to 3.3.6 (see:
https://community.icann.org/download/attachments/30344497/2012-09-24-Summary
-Chart-of+Status-of-Negotiations-Final.pdf?version=1&modificationDate=134858
6200000).  There is no discussion of the proposed change in the join
GNSO-ALAC Final Report (see:
http://gnso.icann.org/issues/raa/raa-improvements-proposal-final-report-18oc
t01-en.pdf). 

Various requests of  staff to provide more details on the "additional
proposed changes which have not yet been negotiated" mentioned in a December
2012 announcement (see:
http://www.icann.org/en/news/announcements/announcement-3-14dec12-en.htm)
were met with delay until March 2013 when the full list of changes was
posted. The source of the change to 3.3.6 is cited as "ICANN economic
advisors", an unknown party to the negotiations. They apparently based their
decision on an "economic study." The advisors are not named and the study is
not posted. 

On a March 18 2013 ALAC briefing call on RAA changes staff was asked to
identify the economic advisors and cite the study document but were unable
to do either. A request was made on this call to produce the document and
more details about the economic advisors but there has been no follow up
from staff (see:
https://community.icann.org/download/attachments/40933175/20130318_RAA_Brief
ing_English+copy.pdf).

This is something obviously not driven by any consensus policy and was not
discussed publicly. As a community we need to look at the fine print and
demand that 1) the economic advisors be identified, 2) the economic study be
published, 3) all transcripts from the negotiations concerning this change
be published, and 4) the full process for generating this change be
disclosed, meaning: A) who saw the need and motioned for the study, B) who
approved the study, C) who conducted the study, D) how much the study cost,
E) who decided the study results were valid, F) what the criteria was used
to interpret the results of the study in a way as to make the contract
change, and potentially additional questions. 

The community does not even know if this "negotiation" took place in the
same venue or context as the other RAA changes with the full NT membership
present. In a strict reading of the change it appears ICANN recommended the
change to itself. In short, because this change does not have community
review it cannot have community support. 

So, within the "Big Tent" where negotiations took place there was apparently
a smaller tent where "other" changes took place. This type of activity is
unacceptable. 

-Garth Bruen


-------------------------------------

Garth Bruen
gbruen@xxxxxxxxxx