Summary/analysis of public comments received
[Posted on behalf of Chief Registrar Liaison Tim Cole by ICANN's general manager of public participation, Kieren McCarthy] RAA CONSULTATION ON PROPOSED CHANGES SUMMARY OF PUBLIC COMMENTS The public comment period for the Draft Proposed Changes to Registrar Accreditation Agreement was open from 18 June 2008 until 4 August 2008. At that time the At Large Advisory Committee requested a special extension for the purposes of providing an opportunity for input from non-English speaking members. Documents were translated into French and Spanish and additional consultation with staff was held. (Note: subsequently documents were also translated into Portuguese, Japanese, Chinese and Korean.) At the time this summary was prepared, staff has a draft of ALAC's comments, but they had not yet been voted upon by the full body. In the interest of moving this process forward, the summary has been prepared with the assurance that the final ALAC document will not differ substantially with what has been submitted to date. (Note: ALAC has since adopted the statement.) A total of 29 distinct submissions were received (including the ALAC draft noted above and a second comment from the Business Constituency that came in after the deadline). Eight comments were detailed comments specific to the amendments, and with the exception of Danny Younger, came from entities, rather than individuals, including: the Department of Commerce National Telecommunications and Information Administration (DOC), Business Users Constituency (BUC), Coalition Against Domain Name Abuse (CADNA), Intellectual Property Constituency (IPC), the Internet Committee of the International Trademark Association (INTA), the Internet Commerce Association (ICA), and the At Large Advisory Committee (ALAC). Brief summaries of each of these submissions follow in the order received. Remaining comments did not pertain directly to these amendments and this subject matter. Eighteen of the comments solely expressed objections to registrars "warehousing" domain names upon expiration and made no other observations or comments about proposed changes to the RAA. Some of these comments noted that such behavior is anti-competitive and should be addressed through the RAA. One individual called for greater anti-spam enforcement efforts while another expressed concern about the Whois conflict with privacy laws and another proposed that "ICANN should provide direct, secure way to search available domain names". USG Department of Commerce This letter focused on the proposed revisions that provide for data escrow of the underlying customer data of privacy and proxy services offered by registrars and resellers. Concern was expressed that any recognition of such services amounts to an "endorsement of proxy services" before adequate study has been conducted and, therefore, is inconsistent with GAC principles and ICANN's commitment to enforce Whois policy. The letter stresses the importance of protecting registrants and escrowing all registrant data. Danny Younger Mr. Younger approves of the registrant rights and responsibilities provision and the escrow of privacy/proxy customer data (but objects to an opt-out clause). Most comments in this submission are critical of the process used to arrive at the set of proposed amendments and assert that the current set of proposed amendments does not go far enough and should not be accepted until further work and input from wider audience is considered. Specific comments: ICANN should exercise "zero tolerance" and terminate registrars after a single "willful fundamental and material contract breach"; sanctions language is inadequate; ICANN should consider "whether the competitive registration model should ultimately be scrapped". Business Users Constituency Approved of arbitration stay provision; registrant rights and responsibilities provision; reseller provisions (but should be expanded to include sub-domain registrars); data retention requirements. Disapproved of the opt-out option for data escrow of privacy/proxy customer data; making permanent the temporary fee policy that registrars can add new registries without fees; provision requiring use of ICANN accredited registrars by registries; removal of references to the DOC as premature. Recommended stronger Whois enforcement; clarification about registry cooperation in any sanctions program; better definitions of certain terms used, such as common control, officers & directors, and notice provision timing. Coalition Against Domain Name Abuse Approved of graduated suspension sanctions; data retention requirements; affiliated registrar sanctions (but term should be better defined); audit provision (but 15-day notice should be removed); registrant rights and responsibilities (developed with entire ICANN community); arbitration stay provision; financial sanctions (but should be stronger and easier to impose); registration by registrars - holding to same standard approved, but warehousing should be explicitly prohibited on unfair competition basis; approved of holding resellers to standards, but should establish criteria for what constitutes a reseller that should include sub-domain registrars. Disapproved of removal of references to the DOC as premature; the opt-out option for data escrow of privacy/proxy customer data. Recommended that the provision requiring registrar to re-verify contact information of registrants should be made more specific with outlined enforcement steps; establish fixed schedule for updating registration information (Whois); create a central repository of "true" Whois information. Intellectual Property Constituency Approved of reseller provisions (but did not consider them strong enough or well defined; identity of registrar should be easier to find). Disapproved of audit provision as "anemic"; graduated sanctions that can only be imposed under "extremely restrictive circumstances"; group liability provisions that are "unjustifiably limited"; privacy/proxy provisions appear to legitimize "irresponsible business models"; the opt-out option for data escrow of privacy/proxy customer data. Recommended revisions on proxy/privacy services to clarify obligations under licensing provision (RAA sub-section 22.214.171.124) specifically requiring the release of information when presented with evidence of actionable harm and requiring such services to provide real points of contact; provision to address registration by registrars of names through "dummy entities controlled by registrar". Criticized "closed negotiations" - broader community input should be sought (not just those who are contracted parties); terms should be better defined (e.g., affiliate companies, reseller; privacy/proxy services; conspicuous notice). In general the IPC encouraged ICANN to refer to the original redline it submitted during the first public comment period (more details about this were provided in the INTA comments below). Internet Committee of the International Trademark Association Recommended a number of items, most of which come from the IPC redline provided in an earlier public comment period: Objected to "special consideration" given to registrars that register domain names themselves - all registrations should be subject to the same requirements; Whois accuracy provision should require registrars to cancel registrations for failure to correct inaccurate information; Affiliated registrar provision needs better definitions and disclosure requirement and the standard for joint liability is too high; "Registrar services" needs to be defined to limit circumstances under which a registrar can register names (such definition should exclude proxy services); provision is needed to strengthen ICANN's ability to exert quality control over use of its trademark; provision should be in place to require registrars to provide and maintain accurate contact information for the registrar; reseller provision should include requirement of disclosure of registrar to any third party and should require registrar to terminate reseller agreement for uncured breaches of the provision (not optional); expand the contract termination provisions of RAA sub-section 5.3 to apply to registrar affiliates; Change of Control language needs to be better defined to cover all possible scenarios and to close "loophole" for acquisition of registrars; relevant ownership restrictions may be needed for potential cross ownership of registries and registrars; proxy and privacy services should be defined. Internet Commerce Association Approved of audit provision (but should extend notice requirement to 30 days); monetary sanctions (but maximum should be treble damages not 5 times); late payment penalties; registrar as registrant provision; supports changes to the arbitration stay provision, but would remove requirement that registrar must request a third party to operate registrar business and leave the determination up to the arbitrator; supports data escrow of privacy/proxy customer data (but objects to an opt-out option); change of ownership provision; notice provision (but should have firm compliance dates, not "reasonable period of time"). Disapproved of making permanent the temporary fee policy that registrars can add new registries without fees; objects to registrant rights and responsibilities provision if it is created only in consultation with registrars (instead, it should only be considered if created in full consultation with the community); registrar training provision unnecessary - enforcement should be used to assure understanding of policies, not training; provision requiring use of ICANN accredited registrars by registries (new gTLDs may warrant alternatives); removal of references to the DOC as premature. Recommended stronger reseller provisions - should require full disclosure of registrar; should require release of data to registrar for any breach; registrars should be affirmatively required to monitor activities of its resellers to assure they are compliant; ICANN must establish a limit on the degree to which national law can preempt Whois or data retention requirements to avoid "a race to the bottom". At Large Advisory Committee Approved of the audit provision, but advance notice should be limited; group liability provision, but it should be stronger and not require "serial misconduct" to apply. Disapproved of the opt-out option for data escrow of privacy/proxy customer data; Recommended better definitions of monetary sanctions and when they apply; registrars should be required to disclose any deviation from a standard set of contract terms to enhance consumer understanding and choice; requirement for registrars under compliance review to refrain from using logo or seal; warehousing should be addressed; requirements should be established to ensure that services paid for by registrants are actually provided (e.g., multi-year registrations); registrars should be prevented from changing Whois information because of a dispute with the registrant; ICANN should limit disclaimers by registrars that are not in compliance; should require standardized Acceptable Use Policy in registration agreements; enforce and make public results of dispute mechanisms; require all registrars to offer DNSSEC. Finally, ICANN should undertake a separate review of the accreditation process itself with results made public. Conclusion This summary should not be considered a full and complete recitation of every comment, concern, or recommendation contained in the public comments. It is an attempt to capture in broad terms the nature and scope of the comments. In several instances (particularly in comments submitted by some individuals concerned with domain warehousing, by the Department of Commerce, Danny Younger, the Business Constituency, CADNA, the Intellectual Property Constituency, INTA, ICA, and ALAC) substantial written comments were submitted to elaborate on and support the positions presented. This summary has been prepared in an effort to highlight key elements of these submissions in an abbreviated format, not to replace them. Every effort has been made to avoid mischaracterizations and to present fairly the views provided. Any failure to do so is unintentional. Next Steps Staff will now proceed to consult with the GNSO on the proposed amendments, public comment and implementation options so that the GNSO can advise the Board..