January 2009 - NA-Discuss - lists.icann.org

Another Small Issue for the Compliance Staff
by Danny Younger Jan. 8, 2009

Jan. 8, 2009

"This Registration Agreement ("Agreement") sets forth the terms and conditions of your use of BestRegistrar.com and the Internet Council of Registrars ("CORE") to register a domain name on the Internet... BestRegistrar.com and CORE are accredited registrars with the Internet Corporation for Assigned Names and Numbers ("ICANN") under an agreement with ICANN ("ICANN Agreement")." ... and yet we all know that bestregistrar.com's accreditation was terminated on 4 March 08. Question: Is CORE accountable for the misrepresentations made by their reseller?

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How did we get into this new gTLD mess?
by Danny Younger Jan. 8, 2009

Jan. 8, 2009

It's a rare day that I decide to focus upon process, but process was the root cause of the GNSO's poor decision-making that led to the sorely deficient Applicant Guidebook. I recall the GNSO's Washington session chaired by Bruce Tonkin at which the position was taken that least-common-denominator agreement constituted consensus. This meant that if Business had a concern that wasn't shared by other parties, that concern was shoved to the sidelines in pursuit of those areas upon which all other parties had sufficient agreement. Similarly, if Intellectual Property concerns were raised that weren't shared by all in the room, then these too were set aside. This approach was a fundamental deviation from the consensus standard that has guided ICANN since its inception. In the article "Why Consensus Matters", Susan Crawford defined the nature of consensus as follows: "The consensus standard calls on all parties to suggest changes that, while not perhaps optimal, will persuade others not to oppose. It is a standard based on the ideal of cooperation (looking for the high ground, not the lowest common denominator that can marshal a majority) on which the net was built." We are in a mess with the new gTLD plans precisely because we failed to act in keeping with consensus principles. The basic premise is simple: if intense opposition is absent or irrational or limited to those who do not bear the impact of the policy in question, then a policy may go forward on a consensus basis, otherwise, legitimate opposition and concerns must be taken into account -- they cannot be trampled upon in the pursuit of a least-common-denominator approach. In view of the public comments tendered, we should have the GNSO go back to the drawing board and begin anew with a process that respects our consensus traditions.

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ICANN Annual Report's Compliance Statistics
by Danny Younger Jan. 8, 2009

Jan. 8, 2009

page 73: Complaints in 2007 -- 5,808 Complaints in 2008 (Jan-Oct) -- 9,397 With complaints to ICANN almost doubling this year over the complaints filed last year, its appropriate to ask whether ICANN is devoting enough personnel resources to Compliance and Enforcement. With the revamped WDPRS that should now be accomodating bulk submissions, we can expect the Department's workload to increase dramatically over the course of the next year. The last Operating Plan called for "reacting to compliance issues in a timely, firm manner" -- we haven't seen that happen as we can still point to ongoing Conssensus Policy violations by GoDaddy and to cybersquatting activities on the part of other registrars that have yet to be addressed. Finally, the outpouring of comments on new gTLDs has made it clear that the business community does not believe that ICANN has sufficiently ramped up its efforts to deal with the multitude of issues that will arise if the new gTLD project goes forward as currently planned. The NARALO should take the lead in bringing these concerns to the attention of ICANN management.

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Re: [NA-Discuss] Congressional Caucus State of the Net Event
by Paul Levins Jan. 8, 2009

Jan. 8, 2009

Danny I have no idea whether transcripts will provided. I can ask the organisers and come back. I'm not sure I'll be presenting an 'ICANN' viewpoint as much as a personal one. Paul ----- Original Message ----- From: Danny Younger <dannyyounger(a)yahoo.com> To: Paul Levins Cc: na-discuss(a)atlarge-lists.icann.org <na-discuss(a)atlarge-lists.icann.org> Sent: Wed Jan 07 17:23:57 2009 Subject: Congressional Caucus State of the Net Event Paul, With regard to the upcoming January 14 Congressional Caucus State of the Net event, might you know if post-event transcripts or recordings will be available? I am given to understand that only some State of the Net panel sessions will be podcast... I note that together with Roger Cochetti, AT&T's Jeff Bruggeman, NetChoice's Steve DelBianco and Brazil's Everton Lucero you will be speaking on the topic of the "Future of ICANN and Internet Governance" I am sure that quite a few of us would have an interest in hearing the ICANN viewpoint and the views of your peers on the topic. (please note that I have copied this query to the NARALO list). Thanks, Danny

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OnlineNic's real address
by Danny Younger Jan. 3, 2009

Jan. 3, 2009

Cybersquatting registrar OnlineNic has gone out of its way to hide its primary business address. On ICANN's list of accredited registrars it only posts this info: Carrie Arden Tel: 510-769-8492 Google's residential phonebook shows this phone number registered to: Rex Liu 2251 Mosley Ave,Alameda, CA 94501 Rex is cited as an onlinenic technical contact here: http://www.ratite.com/whois/whois.cgi?domain=registrar+ONLINENIC. Hint: note the large number of Xiamen, China phone numbers Meanwhile, OnlineNic's support page provides a mailing address at 351 Embarcadero E. Oakland, CA 94606 Unfortunately, their office isn't there either -- for an investigative report (complete with pictures) see http://dotsnews.com/domain-name-news/184 So where is their primary place of business? See the link below: http://www.icann.org/en/tlds/pro1/pdf/rop_exhibit_a5.pdf

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Yahoo lawsuit against OnlineNic
by Danny Younger Jan. 2, 2009

Jan. 2, 2009

filed December 19, 2008 Court Papers: http://claranet.scu.edu/eres/documentview.aspx?associd=30304 Interesting that Yahoo is also raising counterfeiting charges per 15 U.S.C. section 1114(1) and section 1117 that allows an award up to $1 million for each instance. The document details at least 544 registrations at issue and does a good job of documenting the kiting practice employed.

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Industry Self-Regulation vs. a Multi-stakeholder Regulatory Regime
by Danny Younger Jan. 1, 2009

Jan. 1, 2009

The debate over the amendments to the RAA has revealed a fundamental tension between those that want the domain name industry to be self-regulated and those that see that self-regulation never goes far enough, is replete with loopholes that a truck could be driven through, and invariably fails to adequately protect consumer interests. While calls for increased compliance and enforcement measures have been echoing throughout ICANN's chambers, there continues to be an ongoing reticence on the part of ICANN Staff to do anything that would actually ruffle the feathers of those that are the direct source of its ever-increasing income. Sadly, ICANN has made its bed with the proponents of the self-regulatory model while the rest of the world has come to realize the need for a much stronger regulatory hand at work. This is why we cheer when we read the bold remarks of the NTIA -- that organization, like many of us, wants ICANN to function as an ethical and forthright "manager" of the DNS rather than as the neutered lapdog of the domain name industry cartel -- it seeks an entity in charge that has the public interest (not the contracted party interest) uppermost in its mind. Unfortunately, ICANN has become so accustomed to offering up only lip-service to public concerns, so comfortable with the PR and spin processes, that we can no longer consider it to be the "honest broker" or "coordinator" of the DNS that we all wanted when the DNS Project was initiated. ICANN has been captured by the contracted parties. That is the reality... and it is a reality that stands starkly at odds with the notion of multi-stakeholderism. ... and this is why we have seen such outrage with regard to the new gTLD implementation phase. The business world has come to realize that base contracts are being drafted that only serve the needs of ICANN and its contracted parties. The RAA is yet another perfect example of this. What is needed is the continued expression of outrage. It is we, the community, that should be setting the rules for the registrars and the registries to follow; not the other way around. When you hire a worker to do a job, does the worker get to call the shots, to set all the rules? Of course not -- the worker is the hired help that needs to behave himself properly if he wants to retain his employment. The RAA amendments exemplify industry self-regulation -- which is why they suck. In the long run you will need to ask yourself this question: can you manage a sustained long-term fight against a cartel aided and abetted by ICANN Staff to continue protecting those that you represent against a series of abuses that will always follow in the wake of the exploitation of new contract loopholes, or are you better off fighting for a stronger multi-stakeholder regulatory regime that can manage the registries and registrars in much the same manner as telecommunications carriers are managed today? The self-regulatory approach is not working. That model needs to be replaced by a multi-stakeholder model where the public writes the contracts that the registrars and registries will necessarily follow. The way that ICANN is managing the process is bass-ackwards. It has to be changed.

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A LACRALO Viewpoint on the RAA
by Danny Younger Jan. 1, 2009

Jan. 1, 2009

Comments of Carlton Samuels: "Jeez, how's this for consideration. If you have to *call and remind* ALAC members to vote on a matter the entire ALAC has declared to be important and which has been circulated too many times out of memory, then I submit we have a larger problem. It just seems awry, not to mention grossly unfair, to ask some members, all of whom are volunteers, to work so hard while others are hardly working! With regard to the RAA, the ALAC has made several submissions, some of which repeat language I have used in my own postings on the matter. Notwithstanding, I will reiterate my perspective. Context is the key here. In the context of ICANN and the Registry/Registrar constituency relationship, I take the position that those who pay the piper will call the tune. The language of extant RAA Subsections 4.3 and 5.4 are the key parts that peak my interests. The ICANN Board Resolution 07.51 directs staff to engage the Registrar constituency on the proposals for modifying the RAA. It reads in part "a set of proposed amendments or alternative version to the RAA, that is intended to address *to the extent feasible* the concerns raised by the Internet community." The *emphases* are mine. Following on these elements, anyone who takes a balanced comparative view of the extant and proposed RAA revisions will not fail to note the tilt towards the registrar/registry constituency. I do believe this is causal rather than casual but entirely understandable. Having had some experience with commercial contracts of different kinds, I'm minded to think a more purposeful form of the RAA could be devised. However it will come into being from the weight of time, clear-eyed business drivers from competition and registrants willing to shop around. In the current setup, sanctions for violations are weak to non-existent and enforcement is spotty, at best. The amended agreement has some sanctions. But it is laced with language so "weaselly" that any lawyer with a fair knowledge of the tort law or uniform commercial code could argue it away. You just need to look back at the initial At-Large response at LA to see that some of us have been onto that for some time. I agree that there are some provisions in the proposed amended RAA that are now explicit in their intent to protect registrants. However, we know that ICANN does not now have an enforcement operation worth its name, in-house or externally. If memory serves, my concern with the ALAC-commisisoned Issues Report on contract enforcement and the conundrum of contract grace periods pertinent to the domain tasting phenomenon was part and parcel of the main issue. This aside, I have diligently combed the operational reports to see if there are enforcement operations in place or planned here forward without success. I remain willing to be educated but until such time, I shall remain a skeptic and mark this one advantage to the registrar/registry constituency. Like any other commercial contract, what one set of lawyers form/generate/devise, an opposing set can and will always see gaps/opportunities to delay/undermine/exploit in the name of competitive advantage. Sometimes they use the tort law. And since ICANN is configured as a California corporation with its contract adjudication under California and/or US law, then there are lots of fungible opportunities for the RAA via the tort law. The point I'm making is the At-Large needs to recognize the limits of influence and decide when to hold.......and when to fold. Here's the other thing concerning RAA subsection 4.3 and 5.4. I am fairly certain that I can recognize "gobbledygook" when I read it. Hell, I myself have contributed my fair share of such "language" to a few contracts, some of which remain in active use today. Every reasonable interpretation of these clauses I see tends to suggest that they preserve an "opt out" for registrars/registries. In other words, some are "grandfathered" and cannot be forced to comply with these amendments or other such clauses they deem inoperative. Or, they cannot be compelled to enforce this or other requirement down the line. Now, let us supposed I was a member of this constituency and, given perfect alignment of all the stars, become aggrieved of an enforcement action. I could see a petition and claim in federal court for equal protection of the laws and iniquitous enforcement as a rational outcome. Because I know that my chance of relief in law and equity would be awfully good. To me, the central issue has always been enforcement. And I see nothing that would make me think or believe it is going to be better this time around than under the existing agreement."

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