Re: [gnso-vi-feb10] Proposed Addendum to Proposals

[Alan Greenberg <alan.greenberg@xxxxxxxxx>]

Like Jeff Neuman, I think this is a useful 
contribution. I am probably not the best expert 
on whether the details are right, or how 
successful such audit methodology would be.
Your message is unclear regarding whether such 
new audit requirements would be enshrined purely 
in the new registry agreements or also in 
agreements signed by the registrars in question. 
As I have made it clear before, I believe that 
the RAA is not nearly sufficient in appropriately 
governing what registrars can and cannot do, and 
what they must disclose to ICANN, in a VI world 
(I also think that it is the case in today's 
world, but that is a different discussion).
Alan

At 14/06/2010 04:54 PM, Jeff Eckhaus wrote:
> All,
> After today?s discussions with this group and 
> reading the emails on the list, I have noticed a 
> consistent concern coming from many group 
> members, that they are worried about ICANN?s 
> ability to enforce any rules that are put in 
> place. It is one of the main concerns opponents 
> of the JN2 proposal have expressed with the 
> issue of co-ownership. Specifically being able 
> to police the following issue: ?Registry 
> Operator or its Affiliate may serve as an 
> ICANN-Accredited Registrar in any top-level 
> domain other than the TLD for which Registry 
> Operator or its Affiliate serves as the Registry Operator? .
> Those opposed to JN2 and other proposals seem to 
> agree that cross-ownership is appropriate, but 
> that ICANN will not be able to police any 
> restrictions on data sharing between a registry 
> and registrar. They believe that we cannot 
> simply rely on Registrars to adhere to a signed 
> agreement. Thus, because compliance will be too 
> difficult to enforce, we must limit cross-ownership.
> While I disagree with this viewpoint, my opinion 
> does not matter at this point. What does matter 
> is assuring the people who are concerned with 
> the above, attempting to bridge the gap and 
> reach consensus. To that end, I am proposing an 
> unsolicited addendum to the JN2 proposal (maybe 
> JN3 now??) and to any other proposals that allow 
> a Registry to own up to 100% of a Registrar 
> (vice-versa) but not distribute the owned TLD.
> This will only apply to co-owned entities that 
> have an ownership level above the 2% threshold as discussed in the DAGv4:
> ·         The Registry/Registrar must agree to 
> an annual audit for the first 2 years. Every 18 
> months for next 3 years, and every 2 years 
> thereafter. (timing can be negotiated)
> ·         The audit will focus on ensuring that 
> Registry data is not shared with the co-owned 
> Registrar, co-owned Resellers, and any related Affiliates
> o   Details of what data would need to be 
> audited would be supplied by a working 
> group/committee led by current Registries
> ·         Stiff penalties would be levied if 
> there is an audit failure (amounts TBD)
> ·         All costs of the audit would be borne by the co-owned entity
> o   The co-owned entity would pay fees into a 
> pool, not directly to auditors. This avoids any thoughts of impropriety
> ·         This audit would be in addition to the 
> audit and compliance requirements already agreed 
> to in ICANN Registry and Registrar agreements
> ·         Auditors would be independent of ICANN 
> but would work with ICANN Compliance on fees and remedies
> ·         Auditors would be rotated among assignments to avoid capture
> This is the framework of my proposal that I 
> believe would cover Registrant rights and 
> concerns and bring comfort to those who believe 
> there will be enhanced harms if there is any 
> type of co-ownership. Most important it would 
> cover the policing/enforcement issues that seems 
> to be the roadblock to consensus. I welcome 
> feedback on this idea and look forward to 
> hearing more and seeing everyone in Brussels.
> Regards,
>
> Jeff Eckhaus