Re: [gnso-irtp-b-jun09] 60 day lock following registrant change

[Bob Mountain <bmountain@xxxxxxxxxxxxx>]

Hey George,
Wanted to give you our perspective on this.  As a marketplace for domains we
see the transfer lock as an extremely important element of fraud prevention.
While fraud for us is rare, the vast majority of fraudulent buyer and seller
situations are detected within this period giving us a chance to unwind
sales that otherwise would have resulted in the loss of a domain, funds, or
both.

Best,
Mtn 


On 7/6/10 11:23 AM, "George Kirikos" <icann@xxxxxxxx> wrote:

> 
> Hello,
> 
>> We understand GoDaddy.com¹s 60-day lock is a voluntary opt-in process where
>> registrants are made aware of and agree to the restriction that the domain
>> name is not to be transferred for 60-days following the completion of
>> transfer. As such, this practice is not prohibited by the transfer policy.
>>  Registrants are free to transfer to different registrars if they're not
>> satisfied with either the service or terms of service provided by their
>> current provider (i.e., registrant "A" could transfer the name to a new
>> registrar and then request the change of registrant to "B" at a registrar
>> that is willing to offer that service without asking the new registrant to
>> agree to reject transfer requests).
> 
> This is where I believe ICANN has it wrong, and is misinterpreting the
> policy. The transfer policy says transfers can be denied in the
> instance:
> 
> http://www.icann.org/en/transfers/policy-12jul04.htm
> 
> "Express written objection to the transfer from the Transfer Contact.
> (e.g. - email, fax, paper document or other processes by which the
> Transfer Contact has expressly and voluntarily objected through opt-in
> means)" (Section 3, Reason 6)
> 
> To be "opt-in", it cannot just be an agreement that a registrant makes
> on a *blanket basis* without the ability to later decide to expressly
> opt-out of. For example, a registrar might put into its terms of use
> that a domain name can't be transferred for 50 years. What prevents
> that, if ICANN's interpretation above is correct? Would that trump
> ICANN "minimum standards", which are protections for registrants from
> abusive registrars? My position would be that the ICANN minimum
> standards are *rights* for registrants which are above the provisions
> of the registration agreement (many of which might be contracts of
> adhesion, in any event).
> 
> In this case, the "fundamental right" is that for a registrant to
> choose the registrar they wish to use. Quoting from the above, ICANN
> shows its inconsistency when it says "Registrants are free to transfer
> to different registrars if they're not satisfied with either the
> service or terms of service." That should be an absolute right (i.e.
> except subject to the 60 days from creation"), not one that can be
> "negotiated away" as some registrars seem to believe.
> 
> Even if one nominally "opted-in" to a more secure process, e.g.
> executive lock, etc., one should be able to equally opt-out again as
> easily as it was to opt-in in the first place. e.g. I might agree with
> my registrar "reject all transfers unless you get a counter-signed fax
> from me expressly removing this lock." Later, I should be able to
> opt-out of this by using the counter-signed fax to cancel prior
> restrictions.
> 
> So, let's give an example, I buy example.com from Party A and do a
> change of registrant at GoDaddy on August 1, 2010, and the creation
> date is 1995 (so 60 days from creation is not a factor). I decide, for
> whatever reason, on August 20, 2010 (less than 60 days since change of
> registrant), that I want to transfer to Moniker. I should have the
> right to do so. GoDaddy might say "well, on August 1, you agreed that
> you wouldn't transfer for 60 days." However, on August 20, I would be
> revoking that supposed "express written objection" that GoDaddy is
> relying upon (and they could authenticate it all they want). In other
> words, I'm opting out.
> 
> Indeed, the gaining registrar might have an affidavit from me
> expressly *desiring* the transfer, and that should trump the older
> "opt-in." The older "expression written objection" is no longer valid.
> 
> Recall why the transfer policy even exists -- it's because there was a
> desire for "portability" of domains, just like telephone numbers. If
> we allow every registrar to start suggesting that they can incorporate
> their own supposed "opt-in" procedures (which are not really opt-in,
> if they can't be opted-out of), this would be a slippery slope that
> would reverse the gains registrants have made, and would permit abuse
> against registrants.
> 
> Anyhow, under the status quo (without the ETRP), this becomes moot on
> a practical level, because most folks in the secondary market will
> initiate a transfer from their favourite registrar, and never be a
> registrant at the "undesirable" registrar. This all changes, though,
> if the ETRP is adopted as currently proposed, because it would put
> those kinds of transfers (which I'd consider "best practices") at huge
> risk, as the domains could be unilaterally "clawed back" without any
> due process.
> 
> If the ETRP existed (as currently proposed), one might consider doing
> the registrant change at the "undesirable" registrar first, and then
> transferring to one's preferred registrar (as then the only person who
> could initiate the ETRP would be yourself). However, if each registrar
> is reinterpreting the Rules to basically hold those names hostage, one
> can be at even greater risk at the "undesirable" registrar with their
> ad hoc interpretations of "rules" and "policies."
> 
> In the end, registrants have a legitimate need for their domains to be:
> 
> (a) irrevocably transferred to them so that they have clear title (or
> at least subject to much due process if challenged), and
> (b) at their preferred registrar
> 
> ICANN policies (and those of certain registrars) should not be
> thwarting these simple needs.
> 
> Sincerely,
> 
> George Kirikos
> 416-588-0269
> http://www.leap.com/
> 

-- 
Robert J. Mountain
Vice President, Business Development
NameMedia, Inc.
mtn@xxxxxxxxxxxxx
C: +1-508-878-0469
O: +1-781-839-2871
F: +1-781-839-2801