[gnso-irtp-b-jun09] Re: Impact of "Voluntarily" language on 60 day lock following registrant change

[George Kirikos <icann@xxxxxxxx>]

Hi folks,

According to:

http://www.dnsnews.me/2010/07/14/icann-lose-more-staff---head-of-compliance-le/

David Giza is no longer with ICANN. I'm forwarding the issue re: the
impact of the word "voluntarily" to Pam Little instead, for an
interpretation of the 60-day lock upon registrant change issue.

For Ms. Little: see:

http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00367.html
http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00371.html

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Wed, Jul 7, 2010 at 1:09 PM, George Kirikos <icann@xxxxxxxx> wrote:
> Hi again,
>
> As I had a question from someone off list, the following additional
> details might help ICANN (and the working group) in their analysis.
>
> In my post I reference the definition of "voluntary"
>
> "acting or done of one's own free will ***without valuable
> consideration or legal obligation***"
>
> Note the latter part, which is really referencing an agreement or
> *contract.* (i.e. what GoDaddy is relying upon to *bind* someone, i.e.
> not making it voluntary)
>
> And here's the "smoking gun" that goes directly to that issue which
> was in a transcript from 2009 (where GoDaddy was trying to explain the
> policy):
>
> http://syd.icann.org/files/meetings/sydney2009/transcript-irtp-b-brainstorming-session-21jun09-en.pdf
>
> "And so, one thing is we want to make sure that we have a registration
> agreement in place with the new registrant. So, we have a process that
> you go through if you're going to do that, that both the losing
> registrant and the gaining registrant is made aware of the fact that
> this is a service that we're going to provide to you. We provide it
> free under the condition that once completed, the domain name, you
> agree that you won't transfer the domain name for 60 days.
> And then we explain if that's not going to work for you, the option is
> transfer the domain name first and then complete the change of
> ownership at the new registrar. And so, if they complete the process,
> they've been fully informed and then the domain name is held locked
> for 60 days."
> " (page 18, Tim Ruiz)
>
> Note words like:
>
> "a service we're going to provide to you" = legal consideration
> "under the condition"
> "you agree"
>
> And also what the alternative is "if that's not going to work for you"
> -- transfer it elsewhere. So, it's a classic "take it or leave it"
> contract of adhesion, not negotiable by two equal parties. The promise
> not to transfer is an integral part of the binding agreement, and is
> not some "voluntary" after thought.
>
> In other words, one simply can't do the registrant change at GoDaddy
> unless you also supposedly "opt-in" "voluntarily" to their 60-day
> lock. That's clearly not "voluntary" under the definition of the word
> above. There's both valuable consideration and a *legal obligation*
> attached to the agreement to the 60-day lock, which means it's not
> voluntary.
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
> On Wed, Jul 7, 2010 at 10:22 AM, George Kirikos <icann@xxxxxxxx> wrote:
>> Hello,
>>
>> In November 2009, David Giza of ICANN provided an interpretation of
>> the GoDaddy 60-day lock after a registrant change which has been
>> suggested to be "opt-in". This was posted to the IRTP-B working group
>> at the bottom at:
>>
>> http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00345.html
>>
>> recently, and led to some discussions. I believe this interpretation
>> needs to be looked at again, as it did not appear to fully consider
>> the meaning of "voluntarily" in the language of the transfers policy.
>> See below for points pulled from that prior thread (with a few
>> editorial changes and cleanup):
>>
>> I believe another route to attack ICANN's current interpretation is
>> via the word "voluntarily" in the transfer policy, i.e. it says:
>>
>> "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)"
>>
>> (emphasis added for "voluntarily")
>>
>> There are various definitions of "voluntarily" or "voluntary", but I
>> think the most apt one is #7 at:
>>
>> http://www.merriam-webster.com/dictionary/voluntarily
>> http://www.merriam-webster.com/dictionary/voluntary
>>
>> "acting or done of one's own free will ***without valuable
>> consideration or legal obligation***"
>>
>> *** = emphasis added
>>
>> I believe that conflicts with GoDaddy and ICANN's interpretation,
>> because one simply *cannot* opt-in via a *binding legal contract* to
>> something that is *voluntary*. I ask that ICANN's compliance take
>> another look at this. If something is truly voluntary, the "express
>> written objection" can be revoked at *any time* and is thus not
>> permanent or binding in any way legally.
>>
>> I think this point warrants further examination by ICANN and this
>> workgroup, to clarify exactly what can or cannot be "opted-in" to,
>> i.e. what is a minimum standard, what are a registrant's inalienable
>> rights?
>>
>> One can see further discussion on these latter points in the posts at:
>>
>> http://forum.icann.org/lists/gnso-irtp-b-jun09/
>>
>> in the "60 day lock following registrant change" thread, in particular:
>>
>> http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00346.html
>> http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00360.html
>>
>> Can, for example, a registrant "opt-in" to a binding and irreversible
>> 360 day lock or a 50-year lock that *cannot be undone* at a later
>> date? If so, how would that be "voluntary"?
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>