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RrSG Position Regarding RAA 3.7.7.3

  • To: "raa-subsection-3773-advisory@xxxxxxxxx" <raa-subsection-3773-advisory@xxxxxxxxx>
  • Subject: RrSG Position Regarding RAA 3.7.7.3
  • From: "Clarke D. Walton" <clarke.walton@xxxxxxxxxxxxxx>
  • Date: Sat, 10 Jul 2010 01:27:33 -0400

July 9, 2010


Registrar Stakeholder Group Position Regarding
Registrar Accreditation Agreement Subsection 3.7.7.3


BACKGROUND

The Registrar Stakeholder Group ("RrSG") has been asked to provide feedback 
regarding the draft advisory concerning subsection 3.7.7.3 of the Registrar 
Accreditation Agreement ("Advisory").  This position paper captures the overall 
sentiment expressed by the RrSG Executive Committee members who provided 
feedback about this matter.  Due to time constraints, however, no formal vote 
regarding this position paper was taken.

RrSG POSITION

The RrSG is seriously troubled by the §3.7.7.3 Advisory.  In particular, the 
RrSG is very concerned about ICANN's interpretations of what constitutes 
"reasonable evidence of actionable harm" or "prompt" identification of a domain 
name licensee.  These are legal terms that are subject to interpretation by a 
court of law, within a proper jurisdiction, and on a case-by-case basis.  There 
is no universal definition of these terms that is applicable to all 
circumstances and court systems.  As such, ICANN should not undertake the 
impossible task of rendering advisory opinions regarding their definitions.

Furthermore, the Advisory addresses issues beyond the scope of ICANN's mission. 
 The Advisory is not an interpretation of the Registrar Accreditation Agreement 
("RAA"), and not adhering to the Advisory would not raise an ICANN compliance 
issue.  §3.7.7.3 of the RAA only requires that registrars place in their 
registration agreements an obligation that Registered Name Holders provide 
accurate WHOIS data, and that if a domain name is licensed to a third party 
then the Registered Name Holder accepts liability if it does not reveal the 
name of the third party in certain circumstances.  ICANN is only responsible 
for ensuring that these provisions are contained in a registrar's service 
agreements.  As long as a registrar has these provisions in its service 
agreements, there is no breach of the RAA.

The Advisory inappropriately stretches beyond the RAA and attempts to define 
terms contained in the service agreements that registrars have with their 
customers.  Interpreting provisions of registrar service agreements is outside 
the scope of ICANN's responsibilities and is not an appropriate ICANN function. 
 This particular divergence from ICANN's charged responsibilities is especially 
alarming to the RrSG because the Advisory may increase liability for a 
registrar's customers.  The Advisory is another example of ICANN mission creep 
that harms innocent registrants.

As a practical matter, the Advisory does not help registrars or Registered Name 
Holders appropriately define the terms "reasonable evidence of actionable harm" 
or "prompt" identification.  This is due, in part, to the global nature of the 
Internet and the myriad of diverse legal systems worldwide.

For example, RrSG members note that while publishing critical commentary about 
a particular country's politicians on a domain name such as 
[politician]sucks.com may be permissible in some countries, it may be illegal 
in others.  Clearly, in cases such as these, the evidence required to 
demonstrate actionable harm will vary depending on the jurisdiction where the 
dispute arises.  Similar problems also extend to intellectual property related 
domain name disputes, where the law varies from country to country.

With respect to the definition of "prompt" identification, a bright-line 
definition of what constitutes "prompt" identification is inappropriate.  
Individual circumstances should dictate whether identification is "prompt."  In 
some cases, it may take more than five business days to make a good faith 
determination about whether reasonable evidence of actionable harm exists.

ICANN's publication of a formal advisory regarding the definitions of these 
terms is inappropriate.  Attempting to define these terms is simply not a 
responsibility that ICANN should assume and the RrSG urges ICANN to refrain 
from rendering an advisory opinion regarding their definition.  If ICANN 
insists on formally publishing the Advisory then ICANN should include a 
disclaimer that it is not legal advice and that a court of law may make a 
completely different determination or interpretation.

CONCLUSION

The opinions expressed by the RrSG in this position paper should not be 
interpreted to reflect the individual opinion of any particular RrSG member.



Attachment: RSG Position - RAA Section 3 7 7 3 FINAL.pdf
Description: RSG Position - RAA Section 3 7 7 3 FINAL.pdf



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