[gnso-raa-b] RAA processes

["Mason Cole" <masonc@xxxxxxxxxxxxx>]

Greetings -

 

As of this week, I have joined the RAA-B working group.  In my capacity
as chair of the Registrar Stakeholder Group, I hope to contribute
productively to this process.  I apologize for the late addition, but
wanted to be sure that we provided a clear registrar position on this
issue.

 

Up front, let me be clear that I, and all registrars, are interested in
friendly and productive exchanges with the rest of the community on the
issue of the RAA.  All too often in ICANN processes the tone can turn
combative, and I hope this can be avoided.

 

In that spirit, I do not intend for this e-mail to be inflammatory.  To
the contrary.  However, I'm concerned about perceptions or expectations
that are either inappropriate to the business at hand, or will
contribute to difficulty in any amendment process.  So, on behalf of the
registrars, let me address a few of them:

 

First, many in the community are attempting to use the RAA as a tool to
develop policy.  I know it's been said before, and sometimes met with
disagreement, but the RAA is a contract between two entities, not a
policy document.  When ICANN was formed as a bottom-up, consensus policy
organization, policy development processes were put in place to develop
policy.  The RAA will incorporate any policies that approved by the
community through the policy development process.  The registrars will
continue to view the RAA, however, as what it is, an agreement - an
important one - between contracting parties, and will orient discussions
on policy development toward their appropriate avenues.

 

On the issue of amendment process, the registrars (like the registries)
reasonably expect to develop and rely on a predictable method to
consider and implement amendments to the RAA.  The last amendment
process was the first since the initial 2001 RAA, and the current one is
a result of last year's process.  Registrars participated in the last
process in good faith, and are participating in the current one in good
faith.  Going forward, registrars will need to have a predictable
process on which to rely, for the purpose of anticipating impact to
customers, operations, engineering capacity, budgeting, hiring, and
other business and customer service metrics. 

 

Finally, further to the current amendment effort, as I and our GNSO
councilors have stated any number of times, following the months-long
community consultation regarding possible RAA amendments, when it's time
to negotiate the actual legal terms of the amended RAA, registrars will
do so with staff of the ICANN corporate entity only.  I'm aware that
those not party to the contract feel entitled to a presence in the
negotiations on the basis of being an "affected" party, but that is
unpersuasive in the end.  Each of us is "affected" daily by hundreds of
agreements regarding critical services or resources to which we are not
a party - agreements between food producers and distribution networks,
between national aviation authorities and commercial airlines, or even
between book publishers and distributors.  None enjoy or even expect any
kind of presence in the discussion of terms of these agreements, happy
or unhappy as they may be with previous circumstances.  Perhaps input
was solicited, as it extensively has been here, but ultimately it is the
sole responsibility of the contracting parties to come to legal or
business terms.  This is a reasonable expectation.  That said, with
registrar support, ICANN has committed to keeping the community apprised
of the status of negotiations and ensuring that any proposed amendments
are put out for public comments before they are finalized.  That is a
reasonable and fair approach in this case.  

 

The RrSG has been clear on this point, going back at least to the
meetings on the RAA in Seoul.  I fully realize others have alternative
points of view, which obviously are respected, but with which registrars
will not agree.  And let me be clear - registrars are not interested in
non-transparency or needless secrecy.  I hope that accusation is not
made.  We are interested in exercising reasonable processes for
community input on the agreements that govern our ability to meet
customer needs and assurances, operate businesses and still cooperate
with the community.  The process for amending the RAA will be governed
by the contract itself and not the decision of the GNSO Working Group or
the GNSO Council - both of which are arms of the policy making process.
The GNSO is a policy making body and per the RAA terms and the ICANN
Bylaws, it is not the appropriate venue to negotiate contractual
provisions unrelated to policy issues.   

 

On another note, we have had an opportunity to review the law
enforcement community's input into amendment considerations.  Registrars
share the concerns of law enforcement that the domain name system can be
used for criminal or harmful activity.  I'm pleased to tell you
registrars have engaged with law enforcement to discuss their concerns
and their proposed changes, further educate them about our own efforts
to combat this activity, to learn more detail about their concerns, and
find ways to proactively cooperate.  I anticipate this discussion to
continue, certainly in Brussels, and very likely long afterward.

 

Thanks.  I look forward to completing the consultative process on
potential amendments to the RAA.

 

Regards,

 

Mason Cole

RrSG Chair