[gnso-vi-feb10] Proposed Addendum to Proposals

[Jeff Eckhaus <eckhaus@xxxxxxxxxxxxxxx>]

All,
After today's discussions with this group and reading the emails on the list, I 
have noticed a consistent concern coming from many group members, that they are 
worried about ICANN's ability to enforce any rules that are put in place. It is 
one of the main concerns opponents of the JN2 proposal have expressed with the 
issue of co-ownership. Specifically being able to police the following issue: 
"Registry Operator or its Affiliate may serve as an ICANN-Accredited Registrar 
in any top-level domain other than the TLD for which Registry Operator or its 
Affiliate serves as the Registry Operator" .
Those opposed to JN2 and other proposals seem to agree that cross-ownership is 
appropriate, but that ICANN will not be able to police any restrictions on data 
sharing between a registry and registrar. They believe that we cannot simply 
rely on Registrars to adhere to a signed agreement. Thus, because compliance 
will be too difficult to enforce, we must limit cross-ownership.
While I disagree with this viewpoint, my opinion does not matter at this point. 
What does matter is assuring the people who are concerned with the above, 
attempting to bridge the gap and reach consensus. To that end, I am proposing 
an unsolicited addendum to the JN2 proposal (maybe JN3 now??) and to any other 
proposals that allow a Registry to own up to 100% of a Registrar (vice-versa) 
but not distribute the owned TLD.
This will only apply to co-owned entities that have an ownership level above 
the 2% threshold as discussed in the DAGv4:

*         The Registry/Registrar must agree to an annual audit for the first 2 
years. Every 18 months for next 3 years, and every 2 years thereafter. (timing 
can be negotiated)

*         The audit will focus on ensuring that Registry data is not shared 
with the co-owned Registrar, co-owned Resellers, and any related Affiliates

o   Details of what data would need to be audited would be supplied by a 
working group/committee led by current Registries

*         Stiff penalties would be levied if there is an audit failure (amounts 
TBD)

*         All costs of the audit would be borne by the co-owned entity

o   The co-owned entity would pay fees into a pool, not directly to auditors. 
This avoids any thoughts of impropriety

*         This audit would be in addition to the audit and compliance 
requirements already agreed to in ICANN Registry and Registrar agreements

*         Auditors would be independent of ICANN but would work with ICANN 
Compliance on fees and remedies

*         Auditors would be rotated among assignments to avoid capture
This is the framework of my proposal that I believe would cover Registrant 
rights and concerns and bring comfort to those who believe there will be 
enhanced harms if there is any type of co-ownership. Most important it would 
cover the policing/enforcement issues that seems to be the roadblock to 
consensus. I welcome feedback on this idea and look forward to hearing more and 
seeing everyone in Brussels.

Regards,

Jeff Eckhaus