Hi Mike,
This is an issue that I (and the small team) spent a lot of time trying to reconcile: the desires of registrars to be able to deny transfers for registration agreement violations (which in theory could be something other than fraud or illegal or abusive, but still very objectionable), and those of NCSG (and myself) about being able to deny a transfer for any minor breach of the registration agreement.
We compromised and decided to include this implementation guidance in the report, which will need to be included in a final report (and thus form basis of any eventual policy):
Implementation Guidance: The intent of “violation of the Registration Agreement” is not to allow the blocking of transfers due to minor violations, but to allow action in case of substantive contravention of the Registration Agreement.
We also provided a rationale in the notes, which will also carry forward into the final report:
The working group noted that such abusive activities typically constitute a violation of the Registration Agreement, and therefore by including “violation of the Registration Agreement” to the reasons that the Registrar of Record MAY deny a transfer, the Policy will explicitly permit denials in these circumstances. The Implementation Guidance provides additional “guardrails” to protect against denial of transfers for minor, inadvertent violations of the Registration Agreement. The Working Group notes that Registration Agreement violations have in the past formed the basis of formal ICANN Compliance enforcement relating to domain transfer.
I pushed hard to ensure the guardrails, because of the referenced Compliance case. I cannot provide further details (as they remain confidential), but basically agreeing to the registration agreement (and its problematic wording) would have immediately subjected the registrant to breaching the agreement (and potentially losing the domain name).
With that in mind, here is a real world example of “violation of user agreement” that could result in denying a transfer rather than for evidence of fraud. As you may know, Namecheap has a large presence in Ukraine. Recently, a customer spewed horrific propaganda towards our support team, and after being asked several times to treat our team with respect and to transfer away, he continued to escalate the rhetoric. We suspended his account, and now he cannot transfer out his domains. We canceled the registration agreement, so this falls under non-Transfer Policy reasons, but this is a time when there was a clear violation of our registration agreement that could be used to deny a transfer. For the record, we disclosed this issue to ICANN because of the gray area in “denying” the Transfer (and they did not object).
Happy to discuss further, but we did want to put more than just “illegal” activities as a reason to deny transfers. I also note that “abuse” is generally defined as “DNS abuse” and not “being abusive to customer support”.
Regards,
Owen
I wish to raise a further issue wrt Reco 19, allowing registrars to deny a transfer for virtually any breach of the registration agreement. Given that registrars can put just about anything they like into a registration agreement, and that they are given full discretion whether to judge whether the RNH is in some breach of it, I am concerned this is far too broad of a reason and far too much discretion for a registrar to deny a transfer.
It seems to be a fairly radical change unless we can develop some restrictive language. I think our intent was to allow greater freedom to stop transfers where there has been abuse, other than 'fraud'. And that is a laudable goal that certainly the IPC supports. So perhaps we should expand on 'fraud' but not so far as 'almost any breach of any provision of the registration agreement' (..., I am paraphrasing). We could say "fraud or other illegal or abusive behavior", or something like that?
Thanks,
Mike
| Mike Rodenbaugh |
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Dear working group members,
As a reminder, the deadline for submitting input on the draft Initial Report is 14 May 2022.
Please see instructions below for additional details.
Kind regards,
Caitlin, Julie, Berry, and Emily
Dear working group members,
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