Public Comment on Registrar Accreditation Agreement Amendments

["Enrico Schaefer" <enrico@xxxxxxxxxxxxxxxxx>]

To Whom It May Concern:

My name is Enrico Schaefer and I am an attorney with Traverse Legal, PLC, a law 
firm specializing in technology and domain name issues.  We handle a large 
volume of cybersquatting disputes, both for complainants and respondents.  

I closely followed the RegisterFly meltdown which I’m sure was a rude wake-up 
call for many of those interested in domain name issues.  Our website at 
www.traverselegal.com posted information concerning RegisterFly and ICANN’s 
role in the accreditation process.  Obviously, we had dozens of emails and 
calls from registrants who had lost control of their domain names.  Some wanted 
to sue RegisterFly.  Others wanted to sue ENOM.  Still, others thought ICANN 
should have responsibility in the matter.  

The big problem in all of this was the simple fact that RegisterFly’s 
registration agreement contractual precluded any of these people for suing 
RegisterFly for much of anything.  I know there is a class action which has 
been pending against RegisterFly by registrants.  My guess is that the class 
action has gone nowhere.  Especially in the United States, courts rarely look 
at the equities concerning these registrar agreements.  Virtually all 
registrar’s disclaim any liability for anything beyond the registration fee as 
a result of their registration activities.  

One incentive to companies at the registrar level have to “get it right” if 
they have no legal liability for negligent, reckless, grossly negligent or even 
engaging in intentional misconduct.  I get emails and calls just about every 
day from people saying that the registrar actually stole their domain name.  I 
receive calls from people who have emails from registrars who admit that they 
screwed up, but note they have no legal liability under the registration 
agreement which forced people to say “I agree” before ordering, renewing or 
otherwise manipulating their domain name.

While I do not believe that open-ended liability is the answer, I would like to 
see that the registration accreditation agreement puts some limits on the 
number and types of disclaimers, waivers, damage limitations, disclaimers of 
warranty, etc. which can be included in the registrant agreement.  I believe 
ICANN should force registrars to accept a certain level of legal liability if 
they screw up by negligence, reckless or intentional misconduct.  

I’m not suggesting that litigation is the answer here.  What I am suggesting is 
that allowing registrars to immunize themselves from liability, there are 
literally no incentives in place for accountability.  In fact, some registrars 
are absolutely callous in their responses to registrants whose domains are now 
being held by the registrar who picked them up on expiration.  

This brings me to another point.  I do not believe registrars should be allowed 
to engage in domain tasting or have relationships with companies that engage in 
domain tasting.  A registrar is simply to “close to the action” to be expected 
to fairly compete with the very registrants who are seeking to register domain 
names.  I received many comments from people who say they registered a domain 
name and came to find out hours later that the registrar was now listed as the 
registrant.  The registrar then apologizes for whatever error caused the 
failure of the registration to go through.  However, there is literally nothing 
the registrant can do against the registrar.

I hope you will consider requiring registrars to accept some level of legal 
liability in order to ensure that the most reputable, customer-service oriented 
registrars rise to the top.  There is an element of “natural selection” which 
would occur here if bad registrars could in fact be sued by registrants who 
become victimized by their negligence or intentional misconduct.  

Sincerely, 

Enrico Schaefer, Attorney
Traverse Legal, PLC 
810 Cottageview Dr, Unit G-20 
Traverse City, MI 49684 



Please note that this email was dictated by Enrico, but typed and sent by Al 
Dalesandro, Enrico's assistant. This email was not reviewed by Enrico prior to 
sending.Al's email is al@xxxxxxxxxxxxxxxxx.


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