Seltzer, Liddicoat, Gross: Comments on RAA Negotiation Draft

[Wendy Seltzer <wendy@xxxxxxxxxxx>]

In negotiating the contracts that form the basis of its governance
regime, ICANN is performing a public, not private, function. In doing
so, it has duties to the public, registrants included, to keep our
interests in mind. As lawyers, technologists, and members of the
Non-Commercial Users Constituency, we do not believe the latest proposed
Registrar Accreditation Agreement (RAA) does so. As such, it does not
reflect good public policy.

The heart of ICANN's multi-stakeholder regime is that difficult issues
are resolved through consensus driven by participation and
representation of the stakeholders, not by ICANN's Board acting without
(or against) such guidance. The consensus process carefully insulates
the Board from many decisions -- its governance is in making sure the
right procedural steps are followed, not by overturning that process to
intervene on the substance of contested questions.

The provision for unilateral amendment of the RAA pulls the Board into
disputes, subjecting them to lobbying from partisan interests.
Curtailing their power actually protects their ability to oversee the
interests of all of the stakeholders.

Unilateral amendments, even less than bilateral contractual negotiations
are not the place to set policy for a multi-stakeholder environment. The
unilateral decision-making in this foundational agreement undermines our
ability to advocate for multi-stakeholder governance in the ICANN model
in other fora. The Internet is, by definition, a community of networks.
To create a single point of unilateral decision-making, particularly
when no clear case for this has been made, is contrary to this very
basic and profoundly important architectural feature.

Additional problems with the most recent changes:

* They are not evidence-based and therefore irrational and without legal
basis: no evidence has been provided of a problem necessitating this
solution; no persuasive rationale has been presented and in any event,
any such evidence/rationale must be subject to community input.

* The "Registrants' Rights and Responsibilities" document gives feeble
rights in exchange for onerous (or unenforceable) responsibilities. It
should not have been tabled without input from community and especially
across community constituencies. Registrants rights are a foundational
aspect of the RFCs which guide the DNS.  To purport to define these
without community input is not only misguided, but also contrary to the
very rights the proposal seeks to assert.

* The proposed accreditation of privacy services and proxy registration
providers, along with new data collection and retention demands, has
come under much criticism -- it is vital that human rights implications
of such changes be taken into account. For example, should a lawyer
registering domains on behalf of a client, subject to attorney-client
privilege, be forced to register? must a whistleblower or critic depend
on mere promises not to disclose identity? Such provisions must be
subject to the rule of law, due process and take into account
registrants rights such as to freedom of association and freedom of
expression. Even a placeholder for this policy is inappropriate at this
stage.

ICANN is making policy for the Internet and most of its domain
registrants -- those seeking a stable location for their online speech
depend on domain registrations (some, however, use ccTLDs not subject to
this regime). Registrants depend on registrars to get these names,
registrars who won't be deterred by the nuisance of an uncomfortable
exercise of free expression rights.

We support the Registrars in their opposition to these proposed RAA
amendments.

--Wendy Seltzer, Joy Liddicoat, Robin Gross