[gnso-vi-feb10] Law, Policing and Punishment aka compliance proposal, aka WIP draft collection

[Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>]

Maybe we can try to approach the issue another way, by focussing on the 
one issue most of us can agree upon: Compliance.
Most of us can from what I see from discussions over the previous days 
with everyone I had the opportunity to steal a little time from, we so 
far agree that he most important issue is compliance and enforcement. We 
need a strong and well defined body of law (contract), a competent 
police force (compliance control team) and a tiered penalty system. Once 
we can agree on terms of such a system ownership or control percentages 
will become irrelevant. For many proponents, the topic of compliance 
seems to be the driving motive behind their desire to implement control 
limits even though many of the harms are entirely unrelated to VI and CO 
and can just as likely occur in scenarios of 0 % CO/VI.
I will only list the basic premise we all add to and therefore clearly 
mark the following as:

WORK IN PROGRESS


THE LAW:

To draw up the law, a codex of rules that applies to every contracted 
partner, from registry to RSP we first need to clearly define the harms 
we intend to prevent and the behavior patterns we believe to be 
undesirable. Extrapolating from these, our lawyer team-members, myself 
included, can adapt the contractual body to combat the harms more 
effectively than any ownership limitation could.
Pilfering shamelessly from the “back-room proposal”, a separate contract 
of RSPs will have to be put in place clearly defining the roles and 
obligations of such service providers, as all parties need to be 
contractually bound by ICANN to allow policing.
Rather than focussing on separation percentages, let us focus in the 
text of the law on what we want to achieve/prevent and cast that into a 
text of rules. The contracts will of course require an inclusion option 
to allow revision after a reasonable time of review to either reduce or 
increase requirements.
As not all registries are created equally, we may want to considered a 
tiered system of application requirements, based on market power of the 
created or owning entity, as well as the designated purpose of the TLDS. 
For example, a SRSU TLD will need less stringent initial requirements 
than other x-owned entities.

POLICE FORCE:

From our meetings I have gathered that many believe that establishing 
an effective police force is the biggest problem. ICANN enforcement 
today is underfunded and understaffed. So we need to make sure that we 
hold Rod to his words given in this weeks introductory speech. Whatever 
we design, ICANN must put in place (and finance). The funds are there, 
but we will need to convince the board that they will have to dip into 
the sacred fund to put a compliance enforcement team worthy of its name 
in place. I agree with pessimists that will claim such a suggestion is 
impossible to get, but hearing various comments from the board and 
having the strong impression that ICANN staff can be persuaded that the 
exchange of cash for success of the program is possible, we need to 
hammer staff in the coming days with the unified demand of this WG: set 
aside some of the money currently sitting in the bank for a strong and 
competent enforcement team. This is heavy-duty lobbying, but united we 
can, nay, must do it.
As we all think that enforcement is lacking this needs to be done in 
either case, no matter what proposal you favor.

PENALTIES:

As placeholder for further discussion, I am basing the penalty system on 
criminal justice systems:
Tier 0: Notice and warning: Small fine for minor violation

Tier 1: Fiscal penalty: Minor violations not fixed after notice period 
carrying a pecuniary penalty substantial enough to discourage active 
intent by nullifying all ill-gotten gains.
Tier 2: Doing Time: Repeated minor violations or more substantial 
violations reducing the available contingent for registrations to a 
percentage of the average over the past 12 months
Tier 3: Hard time: Temporary suspension of registration activity, 
possibility of cancellation of contract for RSP, prohibition of carrying 
TLD for registrar in case of severe breach of contract.
Tier 4: Death penalty: Permanent Suspension of entity from service, 
redelegation of all TLDs under management/deaccreditation for active 
intentional misconduct, repeated major breach of contract.
Other penalties may include but are not limited to obligatory audits, 
higher fees and more.
I invite everyone to review these ideas, and consider what to improve, 
change, adapt or reject (and why). I welcome all constructive criticism 
unless you are only interested in protecting your own market share by 
disallowing competition.

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Fur Ruckfragen stehen wir Ihnen gerne zur Verfugung.

Mit freundlichen Grusen,

Volker A. Greimann
- Rechtsabteilung -

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Best regards,

Volker A. Greimann
- legal department -

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