MarkMonitor Comments Draft Registrar Disqualification

["Matt Serlin" <matt.serlin@xxxxxxxxxxxxxxx>]

MarkMonitor appreciates the opportunity to provide comments to this
draft procedure and compliments ICANN staff for their ongoing efforts in
creating this procedure.

MarkMonitor is the world's largest corporate domain name registrar,
providing services to over 50 Fortune 100 companies, as well as 5 of the
top 10 most popular Internet sites in the world. 

In general, MarkMonitor supports ICANN's efforts to identify and act
against organizations that are operating against the basic principles of
ICANN's mission (namely security and stability of the internet) by
causing harm to registrants, registries and other ICANN accredited
registrars.

While we support the efforts underway, we do have concerns about this
draft procedure as follows:

1.      Additional detail surrounding "triggering action" is needed

                                While we acknowledge it would be nearly
impossible to define every possible scenario that might fall into this
category, nonetheless it is important to provide some additional
clarification in this section.

                                Of most concern is section 1.2.5 which
states:

                                "Action by a registrar that threatens or
compromises the security or stability of the domain name system."

                                This wording is left wide open to
interpretation and should be clarified. For example, ICANN could include
language that the registrar "knowingly" or "maliciously" took these
actions which would add some additional criteria to the above.

                                Registrar's have a tremendous amount of
responsibility and can take any number of actions that could potentially
fall into the above without intent or simply by human error. ICANN
should account for this and clarify the language to set a clear standard
for what these specific actions are.

        2.      Scope of individuals needs to be examined very carefully

                                To include employees of a company for
potential disqualification as written in the current document is a risky
proposition. 

                                Registrars come in all shapes and sizes
with some having employees that number in the thousands. It's possible
to envision a situation that an entry level employee is simply following
instruction from a superior without knowledge of what implications could
result and potentially find themselves individually being disqualified
from the ICANN world (with their name published on the ICANN site for
the world to see).

                                To rectify this, we would encourage
ICANN staff to again include language such as "knowingly" or
"maliciously" so as to provide an additional level of clarification
around this procedure and provide employees with some comfort that
taking direction from a superior would not result in a disqualification.


        3.      Appeals and review processes

                                The draft procedure allows for a review
of the disqualification decision, but it does provide further details
around what the criteria is to request a review/appeal as well as other
details such as how often or how many times a disqualified party can
request a review.

                                Additionally, it is unclear from this
draft document who will be conducting the reviews. If the decision is
simply appealed to the same party who rendered the initial decision, it
would be highly unlikely to reverse that decision.

                                ICANN should consider the possibility of
using a third party arbitrator to handle appeal cases to as to provide
the disqualified party every opportunity for fairness.

        4.      Initiation of disqualification procedure

                                From reading the draft disqualification
procedure, it is unclear if a third party can request the
disqualification procedure be initiated or if this process can only be
started by ICANN staff themselves.

                                MarkMonitor would encourage ICANN to
include some provision that would allow third parties (registrars,
registries and registrants for example) to request this disqualification
procedure to be undertaken and have the opportunity to provide evidence
to demonstrate repeated harm has been caused as outlined in the
procedure.

                                ICANN has the ability to monitor for
contractual compliance; however, registrars can cause harm to
registrants in manners that would fall outside of the Registrar
Accreditation Agreement and therefore ICANN should allow for third
parties to initiate this process.

                                In creating such a third party filing
process, ICANN should be mindful of the potential for abuse and create a
procedure which sets the bar high and be thorough so as to prevent
frivolous claims.

        5.      Scope of disqualification procedure

                                While the document is specifically
addressing the disqualification of registrar employees and companies,
MarkMonitor would strongly encourage ICANN to allow for a more global
list of disqualified individuals and companies which would extend beyond
the registrar community.

                                Specifically, if any party goes through
the proposed registrar disqualification procedure, they should be
prohibited from entering into other contractual relationships with ICANN
for the duration of the disqualification period.

                                With the anticipated opening of the gTLD
space, ICANN should not allow a disqualified party on the registrar side
turn around and become a gTLD registry operator.

                                The draft procedure currently indicates
ICANN is, "establishing registry qualification criteria through other
initiatives." These separate registrar and registry initiatives should
have commonalities and should not allow for disqualified parties on one
side the opportunity to benefit from new ICANN relationships on another.

MarkMonitor would like to thank ICANN for the consideration of these
points and looks forward to working through future drafts to create a
final procedure that is in the best interest of all parties.

Sincerely,


MarkMonitor, Inc.