RAA amendment process
I have put off raising this issue until I had a chance to re-listen to the last Council meeting MP3, which I have now done. I have to admit that I was quite astounded when we were told that if the GNSO approved, this set of amendments would take effect over a five year period as contracts were renewed (with a possibility that some registrars could volunteer to amend their contract prior to expiration). The rationale given was that this is because the form of the contract was being changed, and that some of the new terms were outside of those eligible for consensus policy (that is, outside of the proverbial picket fence). I was one of the people who previously questioned how this new package could be considered a "consensus policy" since some terms were arguably outside of the eligible areas, so the rationale does make some sense. However, I find it hard to accept that this was the first time that this has been mentioned (in any of the three briefings that I have attended). In fact, during previous discussions, the ALTERNATIVE to approving this amendment package was to either renegotiate with registrars one-by-one (those who were amenable, that is), or to implement the changes as contracts expired. Since those options were clearly less desirable, the GNSO route was being pursued. Am I the only one who feels that the ground-rules were changed at the last moment? Alan
Hello Alan, Your email highlights one of the key problems that ICANN has had over several years - that being the difference between developing policies/technical standards that all parties need to adhere to when they are created, and the process for changing a contract. I will attempt to describe at the least my understanding of the situation. (1) Consensus Policies - within the gTLD registry and gTLD registrar contracts - over time this has the meaning of those policies that are mandatory and must be complied with as soon as they are posted to: http://www.icann.org/en/general/consensus-policies.htm - the GNSO PDP process was specifically developed for this scenario (2) Contractual terms - ICANN has run various processes to update the .com agreement during the term of the agreement, and also update the new gTLD agreements (.biz, .info ) when they have come up for renewal - these contracts have been updated by mutual agreement between ICANN and the contracting party, but ICANN did seek public input in all cases but did not go through any GNSO approval process - the .com agreement in particular was very controversial - one of the issues is that portions of the contracts that have been developed overtime - have components that do have policy implications - for example section 3.3.1 of the RAA (http://www.icann.org/en/registrars/ra-agreement-17may01.htm#2) specifies what data elements must be provided as part of a WHOIS service. So it would be inappropriate for a registrar to negotiate with ICANN to change such text in the absence of consensus agreement. Items such as WHOIS do not have a complete consensus policy defined in http://www.icann.org/en/general/consensus-policies.htm, as they were encapsulated into the RAA at the time of creating the registry/registrar model in 1999. This work predated the GNSO and the policy development process (PDP). - other aspects of a contract - e.g section 3.9.1 the yearly accreditation fee is specified as US$4,000- are not really policy issues - and ICANN should be able to negotiate with a registrar to change this number up or done, consistent with ICANN's overall budget process etc. - with respect to registry agreements, a policy was created for a process called the "Registry Services Evaluation Policy" http://www.icann.org/en/registries/rsep/rsep.html to allow a registry operator to change the specifications of the services it offers that are defined in the contract using a standard process - the RAA process has become confusing in that it has started out with a simple shared objective between registrars an ICANN to improve the contract to deal with situations such as the RegisterFly incident (such changes including mechanisms for ICANN to suspend a registrar and mechanisms to deal with private or proxy registrations), and to carry out these changes quickly. ICANN has sought public comments on the RAA as part of this process. I believe that ICANN staff believe that there are some policy implications with some of the proposed changes - and thus they are now seeking approval from the GNSO, before presenting it to the Board. As this is a contract change - either the parties both agree to update the current agreement (as was done for .com), or ICANN updates the agreement at the time of renewal (as was done for .biz and .info). - we now have a community expectation problem - a wide range of improvements to the RAA have been suggested as part of the consultation - but many of these changes are in effect significant policy changes and should go through a full PDP process. The perception is that because these changes have not be incorporated into the RAA that the public input has been ignored. (3) Possible way forward? Perhaps the path forward is to identify the changes that have been proposed that provide a clear benefit and are not major policy issues. So for example the proposed change to section 2.1 - gives ICANN stronger mechanisms to suspend a registrar ability to register names, should be able to be accepted as a commercial term between a registrar and ICANN, whereas the proposed change to section 3.2 relates to privacy services and WHOIS and is probably best left to a GNSO policy process - even though the change is certainly an improvement on the current contract, and even though the GNSO process will take longer to complete. In the meantime, registrars may voluntarily agree to implement the proposed language in clause 3.2. - - maybe ICANN could create a fresh redline of changes that do not have policy implications and don't need a consensus approval process, and leave the other changes to a PDP process to develop consensus policy around topics such as privacy and proxy registration services. I hope these personal observations may be helpful, coming from someone that has been involved in ICANN discussions on contracts and policies since 2001. Regards, Bruce Tonkin
Thanks for taking the time to explain Bruce. I just which someone on the Council could explain to me why we would not have been better off approving the current RAA amendments as they are rather than delaying them along with other possible future changes. I haven't heard anything yet that makes sense to me from a practical point of view. Are there any of the proposed changes that would not be at least as good as those in the existing RAA? I understand other frustrations but in my opinion they don't justify delaying some improvements any further than we have to. Chuck
-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Bruce Tonkin Sent: Tuesday, January 13, 2009 3:34 AM To: Council GNSO Subject: RE: [council] RAA amendment process
Hello Alan,
Your email highlights one of the key problems that ICANN has had over several years - that being the difference between developing policies/technical standards that all parties need to adhere to when they are created, and the process for changing a contract.
I will attempt to describe at the least my understanding of the situation.
(1) Consensus Policies
- within the gTLD registry and gTLD registrar contracts - over time this has the meaning of those policies that are mandatory and must be complied with as soon as they are posted to: http://www.icann.org/en/general/consensus-policies.htm
- the GNSO PDP process was specifically developed for this scenario
(2) Contractual terms
- ICANN has run various processes to update the .com agreement during the term of the agreement, and also update the new gTLD agreements (.biz, .info ) when they have come up for renewal
- these contracts have been updated by mutual agreement between ICANN and the contracting party, but ICANN did seek public input in all cases but did not go through any GNSO approval process
- the .com agreement in particular was very controversial
- one of the issues is that portions of the contracts that have been developed overtime - have components that do have policy implications - for example section 3.3.1 of the RAA (http://www.icann.org/en/registrars/ra-agreement-17may01.htm#2) specifies what data elements must be provided as part of a WHOIS service. So it would be inappropriate for a registrar to negotiate with ICANN to change such text in the absence of consensus agreement. Items such as WHOIS do not have a complete consensus policy defined in http://www.icann.org/en/general/consensus-policies.htm, as they were encapsulated into the RAA at the time of creating the registry/registrar model in 1999. This work predated the GNSO and the policy development process (PDP).
- other aspects of a contract - e.g section 3.9.1 the yearly accreditation fee is specified as US$4,000- are not really policy issues - and ICANN should be able to negotiate with a registrar to change this number up or done, consistent with ICANN's overall budget process etc.
- with respect to registry agreements, a policy was created for a process called the "Registry Services Evaluation Policy" http://www.icann.org/en/registries/rsep/rsep.html to allow a registry operator to change the specifications of the services it offers that are defined in the contract using a standard process
- the RAA process has become confusing in that it has started out with a simple shared objective between registrars an ICANN to improve the contract to deal with situations such as the RegisterFly incident (such changes including mechanisms for ICANN to suspend a registrar and mechanisms to deal with private or proxy registrations), and to carry out these changes quickly. ICANN has sought public comments on the RAA as part of this process. I believe that ICANN staff believe that there are some policy implications with some of the proposed changes - and thus they are now seeking approval from the GNSO, before presenting it to the Board. As this is a contract change - either the parties both agree to update the current agreement (as was done for .com), or ICANN updates the agreement at the time of renewal (as was done for .biz and .info).
- we now have a community expectation problem - a wide range of improvements to the RAA have been suggested as part of the consultation - but many of these changes are in effect significant policy changes and should go through a full PDP process. The perception is that because these changes have not be incorporated into the RAA that the public input has been ignored.
(3) Possible way forward?
Perhaps the path forward is to identify the changes that have been proposed that provide a clear benefit and are not major policy issues. So for example the proposed change to section 2.1 - gives ICANN stronger mechanisms to suspend a registrar ability to register names, should be able to be accepted as a commercial term between a registrar and ICANN, whereas the proposed change to section 3.2 relates to privacy services and WHOIS and is probably best left to a GNSO policy process - even though the change is certainly an improvement on the current contract, and even though the GNSO process will take longer to complete. In the meantime, registrars may voluntarily agree to implement the proposed language in clause 3.2.
- - maybe ICANN could create a fresh redline of changes that do not have policy implications and don't need a consensus approval process, and leave the other changes to a PDP process to develop consensus policy around topics such as privacy and proxy registration services.
I hope these personal observations may be helpful, coming from someone that has been involved in ICANN discussions on contracts and policies since 2001.
Regards, Bruce Tonkin
Hi, On 13 Jan 2009, at 08:39, Gomes, Chuck wrote:
I just which someone on the Council could explain to me why we would not have been better off approving the current RAA amendments as they are rather than delaying them along with other possible future changes. I haven't heard anything yet that makes sense to me from a practical point of view. Are there any of the proposed changes that would not be at least as good as those in the existing RAA? I understand other frustrations but in my opinion they don't justify delaying some improvements any further than we have to.
I too voted for the RAA amendment and to some extent have similar views - something was better then nothing. But,some very good reasons given by those who abstained or voted no. One important reason given was that they found the process flawed. Without agreeing that it necessarily was flawed, it is something that you and I probably should have realized much earlier - that without great advance work they possibly would at least appear flawed - and we all know what is said about appearances and reality. There is also another reason often given by people against accepting the incomplete and imperfect as at least some improvement, and that it that in the long run we will satisfy ourselves with the incomplete - there is often nothing so permanent as a temporay solution. And this can hold despite the fact that we had a follow-up motion indicating we should continue the work. This is one reason I have started sometimes putting the 'continue to work motions' before policy decision vote. Another reason some may have taken for voting against, was the very nature of the implementation. Again we all should have understood that this was an issue of amending contracts at renewal time and not a consensus policy within the picket fence, much earlier in the process. Though I am sure that some on the council did understand. As chair and v-chair together with the policy staff, we should have realized there was a gap or difference in understanding the implications of a contract amendment and should have brought it into the light earlier. At this point, the question does become: What do we, as a council, wish to do next about the RAA? Are we at the point where we need an issues report to try and take us back to ground 0. Can we put together a PDP that will recommend consensus policy changes where that is the legitimate course and that recommends contract changes in place outside the range of consensus policy. Can an issues report be written that makes these categories and which issues belong in which category clear to the council and community? Another thing we obviously need to know is the implication for the amendments given the council not having approved them by a supermajoriy. E.g. are some registrars likely to adopt them anyway? Can they do so if they wish - assuming the RrC believes they are good amendments? What recourse does the board have at this point? thanks a.
Avri As one of those who voted against the amendments you've articulated the reasons why perfectly. I couldn't agree more. As for the way forward, I wouldn't want to go back to zero even though there were too many vague areas before. At least that's now been recognised, although where we go from here isn't clear either. Answers to the questions you raise at the end should help us decide but I'd be interested to hear a view on the preferred way forward from the RrC. Tony -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Avri Doria Sent: 13 January 2009 16:06 To: Council GNSO Subject: Re: [council] RAA amendment process Hi, On 13 Jan 2009, at 08:39, Gomes, Chuck wrote:
I just which someone on the Council could explain to me why we would not have been better off approving the current RAA amendments as they are rather than delaying them along with other possible future changes. I haven't heard anything yet that makes sense to me from a practical point of view. Are there any of the proposed changes that would not be at least as good as those in the existing RAA? I understand other frustrations but in my opinion they don't justify delaying some improvements any further than we have to.
I too voted for the RAA amendment and to some extent have similar views - something was better then nothing. But,some very good reasons given by those who abstained or voted no. One important reason given was that they found the process flawed. Without agreeing that it necessarily was flawed, it is something that you and I probably should have realized much earlier - that without great advance work they possibly would at least appear flawed - and we all know what is said about appearances and reality. There is also another reason often given by people against accepting the incomplete and imperfect as at least some improvement, and that it that in the long run we will satisfy ourselves with the incomplete - there is often nothing so permanent as a temporay solution. And this can hold despite the fact that we had a follow-up motion indicating we should continue the work. This is one reason I have started sometimes putting the 'continue to work motions' before policy decision vote. Another reason some may have taken for voting against, was the very nature of the implementation. Again we all should have understood that this was an issue of amending contracts at renewal time and not a consensus policy within the picket fence, much earlier in the process. Though I am sure that some on the council did understand. As chair and v-chair together with the policy staff, we should have realized there was a gap or difference in understanding the implications of a contract amendment and should have brought it into the light earlier. At this point, the question does become: What do we, as a council, wish to do next about the RAA? Are we at the point where we need an issues report to try and take us back to ground 0. Can we put together a PDP that will recommend consensus policy changes where that is the legitimate course and that recommends contract changes in place outside the range of consensus policy. Can an issues report be written that makes these categories and which issues belong in which category clear to the council and community? Another thing we obviously need to know is the implication for the amendments given the council not having approved them by a supermajoriy. E.g. are some registrars likely to adopt them anyway? Can they do so if they wish - assuming the RrC believes they are good amendments? What recourse does the board have at this point? thanks a.
This is close enough to the reasons I abstained that I won't quibble with it (other than to note that I do believe it was a flawed process). I would also note that I did not believe the follow up motion was sufficiently specific and definite and would have voted against it on that ground. As for the amendment process, I did understand that it was not a Capital-C "Consensus Policy" within the picket fence. I, however, thought that the entire point of going through the 2/3 majority vote process was to avoid the piecemeal amendment-upon-renewal process. I haven't gone back to listen to the recording of our Thursday wrap up session in Cairo, but that's the understanding I had after that presentation by Kurt. K -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Avri Doria Sent: Tuesday, January 13, 2009 11:06 AM To: Council GNSO Subject: Re: [council] RAA amendment process Hi, On 13 Jan 2009, at 08:39, Gomes, Chuck wrote:
I just which someone on the Council could explain to me why we would not have been better off approving the current RAA amendments as they are rather than delaying them along with other possible future changes. I haven't heard anything yet that makes sense to me from a practical point of view. Are there any of the proposed changes that would not be at least as good as those in the existing RAA? I understand other frustrations but in my opinion they don't justify delaying some improvements any further than we have to.
I too voted for the RAA amendment and to some extent have similar views - something was better then nothing. But,some very good reasons given by those who abstained or voted no. One important reason given was that they found the process flawed. Without agreeing that it necessarily was flawed, it is something that you and I probably should have realized much earlier - that without great advance work they possibly would at least appear flawed - and we all know what is said about appearances and reality. There is also another reason often given by people against accepting the incomplete and imperfect as at least some improvement, and that it that in the long run we will satisfy ourselves with the incomplete - there is often nothing so permanent as a temporay solution. And this can hold despite the fact that we had a follow-up motion indicating we should continue the work. This is one reason I have started sometimes putting the 'continue to work motions' before policy decision vote. Another reason some may have taken for voting against, was the very nature of the implementation. Again we all should have understood that this was an issue of amending contracts at renewal time and not a consensus policy within the picket fence, much earlier in the process. Though I am sure that some on the council did understand. As chair and v-chair together with the policy staff, we should have realized there was a gap or difference in understanding the implications of a contract amendment and should have brought it into the light earlier. At this point, the question does become: What do we, as a council, wish to do next about the RAA? Are we at the point where we need an issues report to try and take us back to ground 0. Can we put together a PDP that will recommend consensus policy changes where that is the legitimate course and that recommends contract changes in place outside the range of consensus policy. Can an issues report be written that makes these categories and which issues belong in which category clear to the council and community? Another thing we obviously need to know is the implication for the amendments given the council not having approved them by a supermajoriy. E.g. are some registrars likely to adopt them anyway? Can they do so if they wish - assuming the RrC believes they are good amendments? What recourse does the board have at this point? thanks a.
I totally agree with Alan that this should have been made clear much earlier in the process. I did not understand this until the day before the Council meeting because of the answers the RyC received to questions we ask in our meeting that week. As it turns out, even if we had approved the amendments by a 2/3 vote, it still would be required to negotiate with registrars one by one if they did not voluntarily agree to the changes before their RAA expired, so it really wasn't an alternative for speeding things up as we all thought. At the same time, I still believe we would get some improvements sooner going that route. Chuck
-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Alan Greenberg Sent: Monday, January 12, 2009 10:14 PM To: Council GNSO' Subject: [council] RAA amendment process
I have put off raising this issue until I had a chance to re-listen to the last Council meeting MP3, which I have now done.
I have to admit that I was quite astounded when we were told that if the GNSO approved, this set of amendments would take effect over a five year period as contracts were renewed (with a possibility that some registrars could volunteer to amend their contract prior to expiration).
The rationale given was that this is because the form of the contract was being changed, and that some of the new terms were outside of those eligible for consensus policy (that is, outside of the proverbial picket fence). I was one of the people who previously questioned how this new package could be considered a "consensus policy" since some terms were arguably outside of the eligible areas, so the rationale does make some sense.
However, I find it hard to accept that this was the first time that this has been mentioned (in any of the three briefings that I have attended). In fact, during previous discussions, the ALTERNATIVE to approving this amendment package was to either renegotiate with registrars one-by-one (those who were amenable, that is), or to implement the changes as contracts expired. Since those options were clearly less desirable, the GNSO route was being pursued.
Am I the only one who feels that the ground-rules were changed at the last moment?
Alan
participants (6)
-
Alan Greenberg -
Avri Doria -
Bruce Tonkin -
Gomes, Chuck -
Rosette, Kristina -
Tony Holmes