ICA Comment on Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse

[Phil Corwin <psc@xxxxxxxxxxx>]

VIRTUALAW LLC

Philip S. Corwin, Founding Principal
1155 F Street, NW  Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
psc@xxxxxxxxxxx

                                                                                
                August 15, 2012
By E-mail to: 
uoc-prelim-issue-report@xxxxxxxxx<mailto:uoc-prelim-issue-report@xxxxxxxxx>

Internet Corporation for Assigned Names and Numbers (ICANN)
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536

Re: Preliminary Issue Report on Uniformity of Contracts to Address Registration 
Abuse

Dear ICANN:
I am writing on behalf of the members of the Internet Commerce Association 
(ICA) in regard to ICANN's Comment Period on the Preliminary Issue Report on 
Uniformity of Contracts to Address Registration Abuse. This Comment Period 
opened on July 25th  and closes today, August 15th.
ICA is a not-for-profit trade association representing the domain name 
industry, including domain registrants, domain marketplaces, and direct search 
providers. Its membership is composed of domain name registrants who invest in 
domain names (DNs) and develop the associated websites, as well as the 
companies that serve them. Professional domain name registrants are a major 
source of the fees that support registrars, registries, and ICANN itself. ICA 
members own and operate approximately ten percent of all existing Internet 
domains on behalf of their own domain portfolios as well as those of thousands 
of customers.
Executive Summary

  *   ICA supports the creation of a minimum baseline of registration abuse 
provisions for all in scope ICANN agreements, so long as such provisions are 
devoted solely to registration abuses and do not stray into the area of use 
abuses that are the proper province of national governments, law enforcement, 
and similar entities.
  *   However, ICA opposes the initiation of yet another PDP to further extend 
the consideration of a subject that has already been under study for almost 
four years - especially when the proposed PDP would not constitute the final 
step in this process.
  *   Overall, ICA views this issue as symptomatic of serious flaws in the 
ICANN policy development process in which important matters are subjected to 
endless study and debate without any final determination or action, and 
community members are asked to devote innumerable hours to participation in 
working groups that create reports which in turn just lead to the initiation of 
additional reports and working groups.
  *   Rather than initiate another PDP, we suggest that ICANN's legal staff 
prepare draft provisions for the relevant in scope ICANN agreements that are as 
uniform as possible and that address the limited number of registration abuses 
at issue, and that these draft provisions should be put out for comment by 
contracted parties as well as the ICANN community.
Discussion
This Issue has Already Been Subjected to Multiple Processes that Reexamined 
Identical Ground and Failed to Reach a Conclusion or Result in Concrete Action
The consideration of whether ICANN should create a minimum baseline of 
registration abuse provisions for all in-scope ICANN agreements, and if 
created, how such language would be structured to address the most common forms 
of registration abuse, has been under study for nearly four years.
This has already resulted in the issuance of three separate reports totaling 
212 pages in length:

  *   On 25 September 2008, the GNSO Council requested an issues report from 
ICANN Staff that resulted in the issuance, on October 29, 2008, of the 49 page

"GNSO Issues Report on Registration Abuse Policies"

  *   More than one year later, in December 2009, the GNSO Council agreed to 
charter a Working Group to investigate the open issues identified in 
Registration Abuse Policies report, before deciding on whether or not to 
initiate a Policy Development Process (PDP); and a Registration Abuse Policies 
Working Group (RAPWG) was chartered in February 2009. The RAPWG issued its 129 
page Final Report on May 29, 2010. (Note: I participated in the RAPWG on behalf 
of ICA and in affiliation with the Commercial and Business Users Constituency.)
  *   More than one additional year subsequently passed until, on October 6, 
2011, the GNSO requested yet another report "to evaluate whether a minimum 
baseline of registration abuse provisions should be created for all in-scope 
ICANN agreements, and if created, how such language would be structured to 
address the most common forms of registration abuse". That request resulted in 
the issuance of the 34 page "Preliminary Issue Report on Uniformity of 
Contracts to Address Registration Abuse" on July 25, 2012.
  *   ICANN staff is now suggesting that yet another working group be formed to 
address this topic, stating,
Staff recommends that the Council initiate a Policy Development Process on this 
topic. Should the PDP proceed, Staff suggests that the working group conduct 
further research, as follows:
*         Understand if registration abuses are occurring that could be 
addressed more effectively if consistent registration abuse policies were 
established;
*         Determine if and how (registration) abuse is dealt with in those 
registries (and registrars) that do not have in place any specific provisions 
or policies to address abuse; and
*         Identify how registration abuse provisions, where they exist, are 
implemented in practice and whether they are effective in addressing 
registration abuse.
If the results of this research reveals that there is value in having uniform 
provisions to address registration abuse, the PDP WG should also consider a set 
of initial benchmarks for developing an initial baseline or framework of 
provisions to battle registration abuse, and define potential reporting 
requirements to track progress toward those goals.

  *   If the recommended PDP was initiated and a new WG formed, it appears that 
it would be largely tasked with reexamining issues that have already been 
addressed by the prior efforts. Further, it would likely lead to yet additional 
study, rather than the adoption of uniform contract provisions, given that the 
main task envisioned for the WG would be to "consider a set of initial 
benchmarks for developing an initial baseline or framework of provisions to 
battle registration abuse".
With all due respect, enough is enough. To the extent that registration abuses 
create serious problems it is inexcusable to address the issue through a 
hyper-bureaucratic and seemingly never-ending process that after nearly four 
years only seems to promise yet multiple additional working groups and reports 
without any foreseeable conclusion. And it is frankly abusive to request that 
volunteers from the ICANN community devote hundreds of additional collective 
hours to participation in new WGs that reexamine already examined issues and 
are unlikely to lead to any near-term results.
The ICANN Policy/Decision Model Compares Unfavorably to both Private and Public 
Sector Counterparts
ICANN is a unique organization - a non-profit sector entity making decisions 
with public policy implications. Yet, whether measured against private or 
public sector models, the ICANN policy and decision making process is clearly 
deficient and in need of some serious reform. We are all for careful 
deliberation, but only up the point where it devolves into pointless repetition 
of effort and the absence of any final conclusion to act or not.
If ICANN were a pure private sector entity that perceived that its various 
contracts with third parties required revisions to address specific issues in a 
uniform matter it would request that its in-house or outside counsel to prepare 
draft language -- and such changes would likely be approved and implemented 
within months.
If ICANN were a U.S. government agency with a similar perspective it would 
issue a preliminary notice of proposed rulemaking and solicit public comment. 
It would subsequently issue a proposed final rule and again solicit public 
comment.   While the entire process would take longer than for a private sector 
entity, it would likely be concluded in less than two years before the final 
rule was implemented.
ICANN Legal Staff Should Prepare Uniform Draft Contract Provisions for Comment 
by Contracted Parties and the Community
The most extensive study of registration abuses was undertaken by the RAPWG. We 
have reviewed the entirety of the RAPWG's May 2012 Final Report and note that 
it does not identify a single registration abuse for which it recommended 
alterations of ICANN contract language. We cannot imagine any successor WG 
unearthing new registration abuses or making alternate consensus 
recommendations.
On the precise subject of Uniformity of Contracts, the RAPWG made the following 
recommendation (which had strong support but also significant opposition):
The RAPWG recommends the creation of an Issues Report to evaluate whether a 
minimum baseline of registration abuse provisions should be created for all 
in-scope ICANN agreements, and if created, how such language would be 
structured to address the most common forms of registration abuse.
That Issues Report was undertaken and is the document that is the focus of this 
comment letter. As that Report notes:
Earlier reports on this topic (see October 2008 Issues Report and the RAPWG 
Final Report), describe the lack of uniformity of abuse provisions among the 
currently delegated gTLD registry agreements, as well as the absence of 
specific abuse provisions in the Registrar Accreditation Agreement (RAA). 
Across the spectrum of existing registry agreements, there are elements of 
similarity but each contract (currently) is customized to the uniqueness of the 
respective registry's business model and operating conditions.
Clearly, the work required to identify existing anti-abuse provisions in 
relevant contractual agreements, and the lack of uniformity thereof, has 
already been done and there is no need or justification for revisiting that 
subject. ICANN staff, in preparing the July 2012 Preliminary Issues report, 
already surveyed a variety of existing contracts to analyze the extent to which 
registration abuse was addressed and whether that was done in a uniform manner.
ICANN is the contracting party for all four of the contract types implicated - 
Registry Agreement (RA), Registry-Registrar Agreement (RRA), Registrar 
Accreditation Agreement (RAA), and Registration Agreement (RtA). And ICANN has 
a highly qualified and well compensated legal staff, as well as access to 
prestigious outside counsel.
We can see little potential gain from the initiation of a new PDP and the 
establishment of yet another WG on this subject, and do not believe the 
community should again be asked to expend countless hours on something that has 
already been exhaustively examined. ICANN has more than enough information to 
proceed if it believes that uniform contract provisions to address registration 
abuses should be developed. In our view, the proper next step, if there is to 
be one, is to have ICANN inside and/or outside counsel develop proposed such 
proposed draft language and thereby provide potentially affected contracted 
parties, as well as the overall community, with concrete draft provisions to 
focus their comments on.
In the absence of such proposed contractual language, the entire subject should 
be dropped rather than embark on yet another chapter of a seemingly 
never-ending process that does not result in conclusive action.
Conclusion
ICA appreciates this opportunity to file this reply comment regarding 
Uniformity of Contracts to Address Registration Abuse.
As stated above,  while we support the concept of such uniform contract 
language we believe that after almost four years of inquiry into this subject 
it is time to "fish or cut bait". We therefore cannot support the initiation of 
yet another PDP and the creation of a related WG. ICANN legal staff has more 
than enough information to prepare proposed draft contractual provisions for 
public comment. They should either do so, or further consideration of this 
entire matter should be terminated.
Thank you for considering our views in this matter.

Sincerely,

Philip S. Corwin
Counsel, Internet Commerce Association



Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell

Twitter: @VlawDC

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