Summary/analysis of public comments received

[Kieren McCarthy <kieren.mccarthy@xxxxxxxxx>]

[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 3.7.7.3) 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..