For those who may be interested, I submitted the following comments to the RAA Improvements report. Alan

From: Alan Greenberg <alan.greenberg@mcgill.ca> 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.