- NA-Discuss - lists.icann.org

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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FW: [Secretariat] FW: [APAC-Discuss] MAG appointments
by Thompson, Darlene Dec. 29, 2008

Dec. 29, 2008

FYI - See Below. ________________________________ From: secretariat-bounces(a)atlarge-lists.icann.org on behalf of Cheryl Langdon-Orr Sent: Sun 12/28/2008 2:55 PM To: karaitiana(a)taiuru.maori.nz Cc: secretariat(a)atlarge-lists.icann.org Subject: Re: [Secretariat] FW: [APAC-Discuss] MAG appointments If there is no one else offering themselves I believe that me self nominating (or being an APRALO nominee) would be OK and I would see it as complimentary to my ALAC work if successful... CLO 2008/12/27 Karaitana Taiuru <karaitiana(a)taiuru.maori.nz> > Dear colleagues, > > You may find this of interest to your RALO. > > Regards, > Karaitiana Taiuru > APRALO Chair > > > > >The Multistakeholder Advisory Group on Internet Governance for the > Internet > >Governance Forum http://www.intgovforum.org/cms/index.php/mag is seeking > to > >elect new members to its Advisory board. > > > >We are actively seeking suitably qualified Internet governance experts > whom > >will represent APRALO and the Asia Pacific region to nominate. There are > >limited positions available, but we wish to nominate as many suitable > >candidates as possible. > > And a further note from Adam Peak, > > One thing: members of the Multistakeholder Advisory Group are > selected by the UN Secretary General, names are submitted to the IGF > Secretariat and selections are made by Secretary General. > > > _______________________________________________ > Secretariat mailing list > Secretariat(a)atlarge-lists.icann.org > > http://atlarge-lists.icann.org/mailman/listinfo/secretariat_atlarge-lists.i… > > Secretariat wiki at: http://st.icann.org/secretariat > -- Cheryl Langdon-Orr (CLO) _______________________________________________ Secretariat mailing list Secretariat(a)atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/secretariat_atlarge-lists.i… Secretariat wiki at: http://st.icann.org/secretariat

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2nd Survey on the At Large Summit - REMINDER!!!
by Thompson, Darlene Dec. 29, 2008

Dec. 29, 2008

Hi all, All accredited ALSs in the NA region should have received an e-mail from Nick on the 2nd questionnaire relating to our summit planning. If you have not, please let me or Nick know ASAP. PLEASE NOTE THAT THE DEADLINE IS JANUARY 12! This is a HARD deadline and NO extensions will be given. Even if you are still a little bit unsure if you will be able to attend, please fill this out or else you WON'T be attending. Now, you know where I live and I am going to have to PHONE you if ICANN doesn't receive your response in good time (we decided that the Secretariats should call up the stragglers on one of the last conference calls). Now, you realize how much this is going to cost me, right? So, PLEEEEEASE get those responses in ASAP or else its gonna cost me (both in time and in money) - and then YOU will be getting a call from a VERY crabby Darlene (hey, you know what rolls down hill, right?). :) Hoping you are all having a great time with family and friends! D

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When a Registry goes Rogue
by Danny Younger Dec. 29, 2008

Dec. 29, 2008

In the context of discussions about new gTLDs, we need to talk about the malicious practices of old gTLDs in order to avoid making the same set of mistakes with the new batch of TLDs. Let's consider the .travel TLD. After putting in place a bulk purchase program this registry went private. It then registered through namesbeyond.com 164,708 domains (normally going for $99 at retail) at an insider unit price of $4.09 and proceeded to monetize this namespace. Of course, there are acceptable forms of monetization, and then there are those forms which can only be described as cybersquatting. WIPO has recently ruled that "many of the domain names it has registered are well-known trademarks, thus evidencing a clear pattern of abusive domain name registration." -- see http://www.wipo.int/amc/en/domains/decisions/html/2008/d2008-1161.html So now we have a registry operator apparently engaged in cybersquatting. What has this experience taught us? 1. Neither registry operators nor their subsidiaries, affiliates, or other related shell corporations should be permitted to register domain names unless such registrations comport with narrowly drafted guidelines. 2. Registry ownership can change. You might think that you are approving an applicant's bona fides, yet the applicant's undisclosed intent is to immediately turn over the registry operation/management to another entity upon receipt of the delegation. You might think that you are approving an application on the part of a publicly-listed firm, only to see shenanigans start when the firm thereafter goes private. Changes in ownership should require some type of re-accreditation/re-certification or ICANN-approval process. 3. Cybersquatting on the part of registries and/or registrars should be punishable through a sanctions program. When contracted parties go off the deep end, the community needs to be protected.

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FW: Second Vote on the RAA Package now open
by Brendler, Beau Dec. 29, 2008

Dec. 29, 2008

Dear NA region: I voted no on the last RAA submission. There's been a modification, as you see below. How would you like me to vote on this modification? I am inclined to vote "yes," as long as we can count on the "with the possibility of further policy development in the future" part. Otherwise, from what I am able to understand, we might lose the good work that's been done on the RAA up to this point. Beau Brendler -----Original Message----- From: alac-announce-bounces(a)atlarge-lists.icann.org [mailto:alac-announce-bounces@atlarge-lists.icann.org] On Behalf Of At-Large Staff Sent: Wednesday, December 24, 2008 1:29 AM To: alac-announce(a)atlarge-lists.icann.org Subject: [ALAC-Announce] Second Vote on the RAA Package now open Dear ALAC members, A briefing was recently held on the RAA Package by Tim Cole and Kurt Pritz from ICANN staff. You can find the audio recording and summary minutes of this briefing under: https://st.icann.org/alac/index.cgi?discussion_on_the_raa Following this briefing, it was decided to start a second online vote on the ALAC recommendation to the GNSO on the RAA Package. The new vote will be open until 08 January 2009 at 1200 UTC, which will allow the ALAC GNSO Liaison to announce the result at the GSNO Council meeting scheduled later that day. You will be asked to choose among the following options: 1. Recommend the GNSO to accept the current RAA package, with the possibility of further policy development in the future. 2. Recommend that the GNSO do not approve the current RAA package. 3. Abstain You will receive a separate email with you voting credentials shortly. Regards, Nick Ashton-Hart, Matthias Langenegger, Marie-Hélène Bouchoms, Heidi Ullrich ICANN At-Large Staff email: staff(a)atlarge.icann.org _______________________________________________ ALAC-Announce mailing list ALAC-Announce(a)atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac-announce_atlarge-lists… At-Large Official Site: http://atlarge.icann.org *** Scanned ** This e-mail message is intended only for the designated recipient(s) named above. The information contained in this e-mail and any attachments may be confidential or legally privileged. If you are not the intended recipient, you may not review, retain, copy, redistribute or use this e-mail or any attachment for any purpose, or disclose all or any part of its contents. If you have received this e-mail in error, please immediately notify the sender by reply e-mail and permanently delete this e-mail and any attachments from your computer system.

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Another Cybersquatting Registrar
by Danny Younger Dec. 27, 2008

Dec. 27, 2008

ICANN accredited registrar OnlineNIC "unlawfully registered at least 663 domain names that were either identical to or confusingly similar to Verizon trademarks". A federal court in the Northern District of California calculated an award based on $50,000 per domain name and awarded Verizon $33.15 million. http://www.bizjournals.com/sanjose/stories/2008/12/22/daily39.html Thanks to George Kirikos for bringing this news to our attention on the GA list. Now we will wait and see what, if any, action ICANN takes. As George notes: OnlineNIC is a top 20 registrar with more than 1 million domains under management: http://www.registrarstats.com/Public/RegistrarMarketShareMain.aspx Meanwhile, I have asked ICANN Staff to look into whether Daniel Sundin, the head of Red Register (another ICANN accredited registrar and a recent recipient of an ICANN Breach Notice), is the same Daniel Sundin cited in a recent FTC complaint that dealt with a massive "scareware" scheme, which falsely claimed that scans had detected viruses, spyware, and illegal pornography on consumers’ computers. see http://www.ftc.gov/os/caselist/0723137/index.shtm

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FW: [Secretariat] FW: [APAC-Discuss] MAG appointments
by Thompson, Darlene Dec. 26, 2008

Dec. 26, 2008

FYI - See below ________________________________ From: secretariat-bounces(a)atlarge-lists.icann.org on behalf of Karaitana Taiuru Sent: Fri 12/26/2008 5:30 PM To: secretariat(a)atlarge-lists.icann.org Subject: [Secretariat] FW: [APAC-Discuss] MAG appointments Dear colleagues, You may find this of interest to your RALO. Regards, Karaitiana Taiuru APRALO Chair >The Multistakeholder Advisory Group on Internet Governance for the Internet >Governance Forum http://www.intgovforum.org/cms/index.php/mag is seeking to >elect new members to its Advisory board. > >We are actively seeking suitably qualified Internet governance experts whom >will represent APRALO and the Asia Pacific region to nominate. There are >limited positions available, but we wish to nominate as many suitable >candidates as possible. And a further note from Adam Peak, One thing: members of the Multistakeholder Advisory Group are selected by the UN Secretary General, names are submitted to the IGF Secretariat and selections are made by Secretary General. _______________________________________________ Secretariat mailing list Secretariat(a)atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/secretariat_atlarge-lists.i… Secretariat wiki at: http://st.icann.org/secretariat

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Happy Holidays!!
by Evan Leibovitch Dec. 23, 2008

Dec. 23, 2008

I wish everyone here all the best wishes for a happy and healthy holiday season. For my own little present I offer a small piece of software, that I co-wrote 19 years ago but still seems to be making the rounds. If you don't have (or want to learn to use) a C compiler, you can see the results of running it at http://www.dezert-rose.com/humor/christmas/12unix.html - Evan

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On ALAC response to BGC WG midpoint etc.: How do you want me to vote?
by Brendler, Beau Dec. 22, 2008

Dec. 22, 2008

http://forum.icann.org/lists/alac-mid-consult/pdfMMtE1XZm6d.pdf I have noted some issues among the NA with some of the language in this report. I would appreciate the guidance of the NARALO as to how to vote. Personally, I'm wavering between 60 percent for and 40 percent against. The percent I'm against mostly consists of wording that reads to me like something of a transferrence of power from the ALAC to the exec committee and the chair. I'm also not sure about the language on page 4 referring to ALAC as the appropriate organizational channel for the voice and concern of the individual Internet user in ICANN processes. I'm opposed to this statement both in theory and in practice -- I don't think ALAC is doing that now, and I don't think it should be roped off as the most appropriate venue for individual users. What sayest thou, constituents? Endorse or reject? ** This e-mail message is intended only for the designated recipient(s) named above. The information contained in this e-mail and any attachments may be confidential or legally privileged. If you are not the intended recipient, you may not review, retain, copy, redistribute or use this e-mail or any attachment for any purpose, or disclose all or any part of its contents. If you have received this e-mail in error, please immediately notify the sender by reply e-mail and permanently delete this e-mail and any attachments from your computer system.

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Re: [NA-Discuss] [ALAC-Internal] On ALAC response to BGC WG midpoint etc.: How do you want me to vote?
by Evan Leibovitch Dec. 21, 2008

Dec. 21, 2008

Cheryl Langdon-Orr wrote: > I will not be making the edits suggested lest yet another round of issues concerns and complaints bursts forth from the NARALO list further delaying our noe overly delayed process The "concerns and complaints" referred to above were internal to NARALO until they were cross-posted to the ALAC internal list. Nothing "burst forth" from the NARALO list without the active effort of people outside the region. Note the subject line. An internal discussion -- an ALAC rep requesting guidance from the region on how to vote -- was re-broadcast to the rest of ALAC (and, I would note, separately CCd to the ExComm mailing list in yet another abuse of its function). Why were all these CCs added, if not to provoke inappropriate outside comment and prolong the process? Perhaps this result may serve as an disincentive to similarly pointless cross-posting in the future. - Evan

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