FW: Comments on RAA report - from Alan Greenberg

[Liz Gasster <liz.gasster@xxxxxxxxx>]

-------------------------

From: Alan Greenberg <alan.greenberg@xxxxxxxxx>
Subject: Comments on RAA Report

Comments on: Initial Report on Proposals for Improvements to the 
Registrar Accreditation Agreement

These comments are submitted solely on my own behalf and do not 
necessarily represent the views of the ALAC or NARALO.

I commend the Joint GNSO/ALAC RAA Drafting team for a comprehensive 
report on a difficult subject.

I first must comment on the timing of this report and the 
implications for RAA changes in the future. The GNSO resolution that 
created this Drafting Team was passed in March 2009, with the stated 
intent of having the recommendations by the end of July 2009. A year 
later, we have an Initial Report. This is not meant as a criticism of 
the Drafting Team(s) - in retrospect, the target date was 
euphorically optimistic. But it should be a wake-up call to push 
forward with the process with due haste. The high priority issues 
listed in the report are indeed high priority, and it would be good 
to see quick progress. This is all the more so in light of the 
recommendation to handle issues that are eligible for consensus 
policy via PDPs, a process which itself typically takes years, and 
the fact that as the RAA is interpreted, it can take up to five years 
to implement a new version.

I would like to highlight a number of specific issues.


Resellers
---------

The 9th high priority topic is to define reseller and clarify 
responsibilities. I strongly support this. I specifically support the 
wording of the IPC and Law Enforcement proposals to make it explicit 
the resellers must comply with ALL registrar requirements that are 
delegated to them. Prior to the May 2009 RAA, resellers were not 
mentioned in the RAA, and one could assume that resellers would have 
to adhere to any rules associated with the registrar tasks that they 
perform. It is a given that in the general case, a party to a 
contract cannot absolve themselves of their  responsibilities simply 
by subcontracting the work to a third party - if that was the case, 
there would be a lot more subcontracting being done. However, it the 
May 2009 RAA, section 3.12 explicitly assigns certain 
responsibilities to resellers, and some registrars have claimed that 
this means that those responsibilities not mentioned are de facto 
excluded. As a result, adding section 3.12 could be viewed as having 
effectively weakened the RAA.

Although not currently an RAA issue, it is also important to note 
that ICANN Compliance has always said that since ICANN has no 
contracts with resellers and therefore cannot take actions against 
them, they do not focus any attention on reseller issues. They are 
correct that they have no right to audit or otherwise force 
disclosure of information from resellers. But that can take action 
through the appropriate registrar. And there is nothing to stop 
compliance from doing audits using publicly available information 
(such as web pages) and then following up with registrars if needed. 
The lack of a definitive list of all resellers should not stop ICANN 
from at least doing spot checks or investigations based on complaints.


Registered Name Holders
-----------------------

The report section on "Registrar Business Dealings with Registrants" 
starting on page 39 includes the text:

"The RAA sets forth actions the Registrar may take at the conclusion 
of the registration period if a Registered Name Holder has not 
provided consent to renew the registration, including the Registrar 
cancelling the registration at the end of the current registration 
term. If the Registered Name Holder did not consent to renewal, the 
Registrar must make sure that a Registered Name is deleted from the 
Registry database within 45 days of the end of the registration term."

This makes it sound as if the "Registered Name Holder" is a single 
entity. However, as noted in RAA Matrix No. 10.2, most registration 
agreements allow the registrar to unilaterally reassign a Registered 
Name to itself or a related or unrelated third party at any time 
after expiration. It is unclear if such transfers are in fact in 
compliance with section 3.7.4 of the RAA, but regardless, the 
ORIGINAL Registered Name Holder (that is, the one on record just 
prior to expiration) is not accorded the rights as described in this 
section. As a result, this section of the report does not really 
represent reality.


Section 5.2 Recommended Next Steps
----------------------------------

I believe that the wording in both Option A and B implicitly biases 
the outcome. They describe the two parties who must negotiate as 
Staff and Registrars. But it is not "Staff" who is one of the 
signatories of the contract, it is "ICANN". The responsibility to 
negotiate and sign has been delegated to certain ICANN staff, but 
that is a policy decision within ICANN.

In a bottom up, stakeholder-based organization such as ICANN, paid or 
contract staff are given certain responsibilities, but that is a 
conscious decision. If ICANN chooses to have as its negotiating team, 
someone from ICANN legal services, the ICANN Chief Registrar Liaison, 
and several people representing ICANN Stakeholder Groups or Advisory 
Councils, that should be an internal ICANN decision. These user 
representatives do not have to be either excluded or classed as 
observers. If ICANN management wants to include them, then that is a 
decision that they can make.