izumi

---------- Forwarded message ----------
From: Wendy Seltzer <wendy@seltzer.com>
Date: 2007/03/16 20:51
Subject: [At-Large] Recommendation on contract enforcement by the public
To: alac@atlarge-lists.icann.org

If ICANN't keep a contract, let the public enforce it

Earlier in the Registerfly controversy, ICANN Vice President Paul Levins
posted to the ICANN Blog <http://blog.icann.org/?p=32>,

     ICANN is not a regulator. We rely mainly on contract law. We do not
condone in any way whatsoever RegisterFly's business practice and behaviour.

This is disingenuous. ICANN is the central link in a web of contracts
that regulate the business of domain name allocation. ICANN has
committed, as a public benefit corporation, to enforcing those contracts
in the public interest. Domain name registrants, among others, rely on
those contracts to establish a secure, stable environment for domain
name registration and through that for online content location.

A user registers a domain name by contracting with a registrar, such as
Registerfly. The terms of that agreement are constrained by ICANN's
accreditation contract with the registrar
<http://www.icann.org/registrars/ra-agreement-17may01.htm>. French
registrar Gandi < http://gandi.net/> explains this web with helpful
diagrams in its registration agreement
<http://www.gandi.net/contracts/en/g1/pdf/>:

    Gandi is a Registrar, accredited by both the Trustee Authority
[ICANN] and registry of each TLD to assign and manage domain names
according to their specific TLD. We must abide by the terms and
conditions of Our accreditation  contract. As a consequence, We must
pass some of Our obligations on
to Our  customers.
    ...
    As such, We commit Ourselves to providing you with the best possible
service. This being said, due to Our contractual obligations with the
Trustee Authorities and Registries, and which You must also abide by,
Our services are limited in some of their technical, legal, regulatory
and contractual aspects.

Now the ICANN contracts can both limit and help the end-user registrant.
On the limit side, they restrict the registrant's ability to maintain
anonymity or privacy by requiring the registrar to provide accurate
identifying information to the WHOIS database
<http://www.icann.org/registrars/ra-agreement-17may01.htm#3.2 >, a duty
the registrar fulfills by compelling provision of accurate information
in its own contract with the registrant. This requirement benefits
trademark holders, who have recently turned out
< http://forum.icann.org/lists/whois-services-comments/> to prophesy doom
if data display is limited.

On the benefit side, the RAA-imposed duty of data escrow
< http://www.icann.org/registrars/ra-agreement-17may01.htm#3.6>,
requiring the registrar to maintain an escrowed copy of its registration
database, provides evidence of a registrant's domain name holdings in
the event of registrar failure. Registrants seeing this provision could
believe that their domain names would be secure even if the registrar
who had recorded them defaulted.

So they might have believed, but apparently ICANN has never enforced
this provision of its contracts
<http://gnso.icann.org/mailing-lists/archives/ga/msg06000.html>.
Moreover, ICANN denies that the public is a third-party beneficiary
entitled to demand enforcement
<http://www.icann.org/registrars/ra-agreement-17may01.htm#5.10>.

The Registerfly debacle
< http://www.businessweek.com/technology/content/mar2007/tc20070307_079128.htm?chan=smallbiz_smallbiz+index+page_technology+ >
shows why this view is wrong as a matter of law and policy. ICANN was
told more than a year ago of customer service problems at Registerfly,
but did nothing to respond to those complaints, including escrowing
data, leaving the company's 200,000 registrants at risk of losing domain
names or the ability to update them when Registerfly's business troubles
escalated early this year.

ICANN should recognize that the reason for its registrar contracts is
precisely to benefit third parties: domain name registrants and those
who rely on the domain name system. ICANN is not (or shouldn't be)
accrediting registrars merely to have a larger pool of organizations
paying fealty to it. Rather, it is imposing terms and conditions on
registrars and, with an "ICANN accredited" seal, inviting the public to
rely on those terms for a secure domain name registration.

In cases where ICANN fails <http://omblog.icann.org/?p=6> to recognize a
registrar's problems
< http://www.theregister.com/2007/02/19/registerfly_angry_customers/>,
concerned members of the public should be entitled to take action
themselves. As well as enforcing public-benefit obligations on its own,
ICANN should facilitate individual action by removing the "no
third-party beneficiary" language from its contracts.

Resolved that:
Recognizing that the public Internet users are intended beneficiaries of
ICANN should strike the "no third-party beneficiary" language from its
Registrar Accreditation Agreements and Registry Agreements;

ICANN should promptly adopt a schedule and provisions for escrowing of
data from all registrars, as envisioned in RAA 3.6.

--
Wendy Seltzer -- wendy@seltzer.org
Visiting Assistant Professor of Law, Brooklyn Law School
Fellow, Berkman Center for Internet & Society
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/

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--
                      >> Izumi Aizu <<

             Institute for HyperNetwork Society
             Kumon Center, Tama University
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