Re: [gnso-vi-feb10] RE: Innovative Proposal - Jeff E response

[Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>]

Ron,

I agree that it is odd that the issue re-delegation for that
particular registry has not been explored by ICANN. Counsel's emphasis
on a unilaterally amendable contract for new registries is explained
by senior Staff as being motivated by their concern for misconduct in
the registrar space moving into the registry space. I'm paraphrasing
from the January WDC meeting on that issue and this issue. The absence
of interest in a well-known exploit for personal gain is inexplicable.

However, I suspect that those taxing Kathy to provide them with
credible threats will dismiss the abandonment of a sTLD's purpose as
either necessary (there are advocates for no restrictions on purpose),
or irrelevant (some advocates for linguistic and cultural purpose
manage not to draw on the experience of .cat).

I've suggested that rather than attempt to prove by assertion (as that
is what a proof based upon the absence of fact amounts to) that PIR's
not made a case (also more or less by assertion) of harm, that Jeff E.
ask to what point the PIR proposal of exception can be moved to (up
probably) that would satisfy his minimum and not exceed PIR's maximum.
Perhaps no such number exists, but it seems useful to ask Jeff E if
50k isn't the right number, is 500k righter? is it sufficiently
"right"? How about 5M? At what point is it an acceptable cost of
business to transition from an exception to Recommendation 19 to
non-exception?

If no point of agreement can be found, and there are others who have
an interest in any exception to Recommendation 19 being less than, not
more than, PIR's initial number, then the "more scary" or "less scary"
claims are really secondary to the basic difference of model, some,
PIR's included, place a limit on exception, others reject limits,
utterly or below some numbers that look difficult to achieve.

Presently, registrants have the recourse of contacting ICANN when they
have a non-solvable problem with a registrar, in addition to the
recourse of simply switching registrars. This would be absent where
there is an exception to Recommendation 19, and the only rebuttals
that seems possible are that (a) the registrant's non-solvable problem
is with the registry, and therefore not curable by any recourse to a
change of registrar or correction by a registrar, or (b) registrants
don't exist distinct from the registry and therefore no problem
involving distinct registrants and a registry can exist.

No recourse under any circumstances seems like a large claim to make
harmless by assertion. If it is made in the specific context of a
"single registrant" type of registry, with all the necessary
assumptions about undefined other policy implementation details
overlooked, because there are no registrants, and no agency or intent
distinct from the registry to exist in conflict with that of the
registry, the issue of lack of recourse seems answered, though only if
the analysis of conflicting purpose ends at the "registrant"
abstraction. If "users" have purposes, e.g., in "ofmars.bank" actually
resolving to a recourse of the Bank of Mars rather than somewhere
else, which might be the purpose of the registry, then a
no-registrants-therefore-no-harm dismissal of no recourse is insufficient.

Of course, as Jeff E pointed out, he does not discount "threats of
consumer abuse and think some are legitimate, but also believe that
through oversight and penalties as envisioned in many other proposals
submitted to the WG, the harmful practices would be curbed." What he
does discount however is that recourse to the registrar complaint
mechanism, and change of registrar, have any effect, and that these
effects have to be either abandoned or included in the "oversight and
penalties" set of mechanisms.

It is an unfortunate artifact of ICANN's being long on lawyers and
short on computer scientists that the phrase "the security and
stability of the internet" is tossed around as if it had a clear and
useful meaning. We all might be better off if we used words that have
common meanings, like "fraud" or "under provision".

Eric