Registrant Rights Charter and Proposals for Improvements to the RAA comments by Leap of Faith Financial Services Inc.
Registrant Rights Charter and Proposals for Improvements to the RAA comments By: George Kirikos Company: Leap of Faith Financial Services Inc. Date: July 8, 2010 As a preface, I notice the lack of comments to date in this important comment period. As I've suggested numerous times before, ICANN needs to: a) Space out the comment periods: there are too many comment periods at any one time that are pending, and they often end around the same time. This gives little time to read all the relevant background material to produce useful comments. ICANN needs to cut back on things, if there are too many issues being entertained at any one time. b) Extend the comment periods: ICANN can learn from CIRA (the .ca registry), which had a *100 day* comment period for a recent important issue http://twitter.com/GeorgeKirikos/status/16797572817 c) Send notices to all gTLD registrants regarding comment periods: As per (b), CIRA sent out notices to ALL domain registrants in .ca regarding the comment period. ICANN should do the same on a quarterly basis (just like there are requirements for annual WHOIS accuracy reminders). The above being said, we've perused the "Proposals for Improvements" document, and have a hard time taking it seriously. It's lengthy, but seems to be more of a "laundry list" of concerns that are not prioritized and seem to come out of left field in many cases. We are very disappointed by the lack of progress on a registrant rights charter. Indeed, the working group appears to have given up, thereby failing registrants entirely. 1) The current proposed Registrants rights "charter". Seems very silly and a waste of time, because as Annex D plainly states "The summaries provided here do not override or replace the actual terms as written in the RAA or the related policies and specifications." If this "charter" is to have any value, it should work the other way around, namely that registrant rights are enumerated in one place and any other document/policy cannot conflict with that charter, just like the US Bill of Rights, or the constitution of many countries. If there's any conflict, the rights in the charter reign supreme, unless the charter itself is amended by a supermajority. A plain language "summary" document is *not* a charter at all, and is a perversion and misuse of the term. Call it what it really is, which is a "Dummy's Guide" or an "Idiot's Guide", not a charter. To see what a "charter" of rights really is, look at the text of the US Bill of Rights or the Canadian Charter of Rights and Freedoms: http://en.wikipedia.org/wiki/United_States_Bill_of_Rights http://en.wikipedia.org/wiki/Canadian_Charter_of_Rights_and_Freedoms Those are the highest laws of the land. To give registrants rights, it would also allow registrants to *enforce* those rights in court against ICANN, when ICANN creates policies that conflict with those fundamental and inalienable rights. However, ICANN always makes sure that registrants have *no* rights to enforce anything against ICANN itself. This needs to change. Having a *real* charter, of the nature I described, *would* actually be useful. But, it doesn't look like that's going to happen given this document. According to the summary, the RAA Drafting Team was tasked with "drafting a charter comprised of registrant rights" -- it has obviously misinterpreted the meaning of that task, and instead just came back with the job of what a lowly "secretary" might accomplish, instead of thinking deeply about what the fundamental rights and responsibilities of registrants should be. This shows lack of leadership and vision. What's worse is that the working groups knew all this, and instead of deciding to show leadership, it copped out and *unanimously* went with the approach of a simple "Idiot's Guide" approach, instead of a charter. See for example page 10 of the PDF: "Some members envisioned the Charter to be a document declaring basic rights that should be afforded to registrants by registrars in connection with domain name registrations.Others viewed the Charter as an inventory of current obligations and responsibilities under the RAA related to registrants." For the "inventory" approach to have been adopted *unanimously* demonstrates why ICANN is not taken seriously by outsiders, and is nearly universally loathed. Show some vision and leadership! I say this especially to those in the workgroup who cowardly cast their vote for an "Idiot's Guide", rather than holding true to their convictions as to what a real charter should be. You did not do well for registrants at all, and it would be better that you simply resign instead of pretending to represent the interests of registrants' rights. Or, better yet, fight for those rights! In the real world, blood has been spilled in wars (US War of Independence, etc.) to achieve and defend certain rights and freedoms. Great sacrifices have been made. Where are those leaders within the ICANN community who would fight for rights? They're obviously not in this working group, because they lack the passion and the persistence to get the job done. It's better to fail honourably if one actually put forth the effort, and showed some persistence. Show some backbone...ICANN needs fewer jellyfish! But, their "surrender" on the issue of creation a true charter of rights for registrants brings them no honour. It's a great waste of an opportunity to bring real change. The "aspirational charter" discussed in the document is a silly joke. Read about real charters, study some history, and then bring forth a document in consultation with registrants. The "At-Large" should be disbanded, given its failure to represent registrants. It appears to serve little purpose. ICANN should simply create a real registrants constituency, 1 vote per gTLD domain name (or another formula), and allow for real representation, with Board voting power (like Karl Auerbach knows all too well). 2) The topics for RAA "improvements": Here's where we get into a huge laundry list that covers the bulk of the document (the entire document is 153 pages --- I imagine very few people in the working group will probably even read the entire document; even fewer in the public will probably read it at all, as we'll see in the low number of comments). Not found in the "high priority" list of topics on page 18 is the designation of a Legal Contact in the WHOIS. We've advocated this for years and years. Of course, working group members don't study the past and have their own agendas. God forbid they actually do some *research* and *reading*, instead of only bringing to the table their own wish lists. Fundamental research like that done by CIRA in (c) above, contacting all registrants, should have happened *before* this huge report, not *after* this report. We disagree with many of the high priority topics, e.g. "malicious conduct" is better suited to the courts, rather than making the registrars become the court and police for all claimed "abuse" on the internet. The duty should be to have WHOIS accuracy, and then let private parties, police, etc. handle things in the real world. Otherwise, there is a huge slippery slope of turning ICANN into a "government of the Internet" which is far outside of what is supposed to be its narrow technical mission. Having Verified WHOIS, which we've long advocated, would have been a step in the right direction. We also don't agree that the RAA should be negotiated behind closed doors at present, as it affects registrants (because we obviously do not have a real charter, as I described in #1 above). If we actually *did* have a charter of rights for registrants, we would not *care* as much whether the RAA was negotiated in private, because it could not *conflict* with our fundamental rights. The charter of rights would rank higher in law, and could be used to quash "bad" things in the RAA. 3) The "Matrix" -- this is the laundry list I mentioned in #2. One cannot expect us to comment on every single idea there, however I'd like to point out that some of the claimed "input" is simply preposterous. Here are just a few: i) Let's start at the very first example, page 48, number 1.1 "Prohibition on Registrar Cybersquatting". On its own, it might not seem unreasonable. However, take a look at the 4th column, "Stakeholder Input". It says "Staff"! Since when are ICANN Staff suddenly "stakeholders" in the Policymaking process at ICANN???!!!?? Staff are supposed to be there to *serve* and facilitate the bottom-up process. They're not supposed to be dictating policy from a top-down perspective! This is just a further example of how ICANN is captured by interests that do not reflect the public. Is it any surprise that these same "staff" are paying themselves enormous salaries, wasting the money of the domain registrants? http://forum.icann.org/lists/op-budget-fy2011/msg00013.html http://www.circleid.com/posts/20090105_icann_for_profit_companies_comparables/ Oh, and with just "Staff" as "Stakeholder Input", surprise, surprise, the "Priority" (rightmost column) is "High". Oh, and ICANN staff are going to come up with their own "definition" of cybersquatting now! This is an example of mission creep. ICANN needs to be focused on the technical mission. I'm opposed to cybersquatting as much (if not more) than most people. The proper venue is the courts, not the back rooms of ICANN's offices in Marina del Rey. ii) Note "Staff" again make many more "inputs", e.g. 1.2, 1.3, 1.4, etc. See i) again for why Staff are supposed to *serve* and listen, not be participants in policymaking. iii) Issue number 1.2 -- interesting how staff wants to eliminate any "due process" for registrars, to give themselves final authority to terminate "immediately." I've written about "due process" many times. Even bad guys deserve it. There's a famous award-winning film, "A Man for All Seasons" from the 1960s, based on the play, that had a memorable scene: ---- start quote -------- "William Roper: So, now you give the Devil the benefit of law! Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil? William Roper: Yes, I'd cut down every law in England to do that! Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!" ------ end of quote -------- Even the Devil (real abusers, spammers, etc.) deserves the benefit of law (and due process), in order to protect everyone else from the anarachy that would result without laws and due process. iv) Issue Number 2.2 is a anti-capitalism proposal. It suggest a prohibition on so-called "speculation." This is marked as a "high priority". To some, "profit" is a dirty word. They should seriously consider moving to Cuba. I would have suggested China or Russia, but "profit" is a good word in China and Russia these days! v) Issue 3.1 (and others): Staff is suggesting registrars police the internet. As we suggested above, this is a bad idea. It should be left to the police and the courts. Registrars should only act when ordered to do so by a relevant court, to ensure due process. vi) Issue 3.4 -- while an "abuse contact" sounds like a good idea, we prefer the approach we've long advocated of having the Verified WHOIS (names don't resolve until WHOIS is verified via a PIN code sent by postal mail to a registrant, for example). This would proactively *reduce* abuse. It would provide the physical location of the perpetrators. And, because physical locations are finite, it would eliminate the ability to create infinite "throwaway" identities, which is a major cause of abuse. Ask law enforcement which is a bigger priority, and I'm confident that Verified WHOIS would be much preferred. vii) Lots of other issues: without enumerating them all, many others are best left to courts, and registrars should only be responsible for acting against a domain name when a relevant court orders them to do so. Ensuring accurate and verified WHOIS should be the registrar's responsibility. viii) In many cases, the police want too much information. Privacy laws exist in various countries, as do laws that limit the scope of a police "search." A proper balance needs to be maintained. Search warrants should be required. Also, jurisdiction needs to be properly handled and respected. Is a registrant based entirely in New York for example, subject to a "search" initiated by a police force in China or North Korea? ix) Issue 6.9 is one we can agree with, and go far beyond, i.e. the Verified WHOIS we've long advocated. x) Issue 8.2 is somewhat amusing, given the appeals mechanisms and ability to "correct" breaches that exist in the .com agreement. Why is VeriSign given the opportunity to correct breaches? Clearly, some balance needs to exist, and even due process for the "Devil" as mentioned above, especially given that ICANN is no Angel. xi) 9.1 is interesting. What is meant by "business associations" -- everyone a company does business with? Too broad! xii) 9.2 is funny. We support elimination of gaming opportunities directly, rather than play the game of shutting down the shell corporations. Eliminating gaming requires writing smart policies and closing loopholes. Do that, and you don't have to worry about the shell corporations. In other words, don't attack the *symptoms* of a problem. Instead, go after to root *cause* of a problem. xiii) 9.4 should apply to *registrants* as we've discussed above, i.e. have a Legal Contact directly in the WHOIS. xiv) 10.3 should apply to ICANN itself, and to registry operators (i.e. if there's a security breach to ICANN, it needs to be disclosed, same for .com, etc.) xv) 12.1 is amusing -- why would ICANN *Staff* propose *reducing* the number of arbitrators from 3 to 1? With only 1 arbitrator, it can be a roll of the dice in terms of quality. With 3, you tend to get more balanced and proper decisions. One only needs to look at the crazy decisions that come out of 1-panel UDRP cases, for example. xvi) 12.2 is ICANN staff believing that no one deserves due process, wanting to give itself "sole discretion" xvii) 13.2 is amusing, that such "operational" details (staff trying to pump new TLDs, which the vast majority of the public opposes) into the RAA process. xviii) Section 15 covers the UDRP, yet ICANN continues to bring the UDRP *providers* under written contract with ICANN, even though this issue has been brought to ICANN's attention numerous times, including in the recent Brussels meeting. xix) Section 16 Interesting to see the IPC Working Group talk about "sanctions" and "fines". How about the same when reverse domain name hijacking cases occur in UDRPs? xx) Section 18 (Privity of Contract) -- this is a point we *agree* with. Registrants need to be able to hold ICANN accountable, but ICANN goes out of its way to make this difficult or impossible. Note how TM holders were given the UDRP, even though TM holders are *not* a party to a contract between ICANN, a registrant or a registrar. How is this *any* different? It's not! Plain hypocrisy. xxi) 60-day lock following registrant change. As we've noted to ICANN recently: http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00367.html http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00371.html their current interpretation of the 60-day lock following registrant change that *some* registrars are doing appears to be incorrect. This needs to be revisited. In conclusion, this report leaves very much to be desired, beyond the above examples. Let us hope that future reports are of much higher quality, bringing a real charter of rights for registrants. Sincerely, George Kirikos President Leap of Faith Financial Services Inc. http://www.leap.com/