I agree
Marc H. Trachtenberg
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Chair, Internet, Domain Name, e-Commerce and Social Media Practice
Greenberg Traurig, LLP
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From: Jeff Neuman via SubPro-IRT <subpro-irt@icann.org>
Sent: Wednesday, April 30, 2025 2:39 PM
To: Karla Hakansson <karla.hakansson@icann.org>; Anne ICANN <anneicanngnso@gmail.com>; Jared Erwin via SubPro-IRT <subpro-irt@icann.org>
Subject: [SubPro-IRT] Re: [Ext] Base RA redline
*EXTERNAL TO GT*
Dear Anne and Susan,
I know you have this covered, but if I could offer my own view as one of the former co-chairs of SubPro. I have not spoken with Cheryl about this as the other co-chair, but I would hope she would support
this. I would support forwarding this on to the Council to assist in its review.
During the discussions within the Subsequent Procedures PDP, the topic of “fraudulent and deceptive practices” was discussed on numerous occasions, especially earlier on during the work track phases (prior
to the preliminary report). The driving force behind those discussions was a decision issued in the very first PICDRP dispute in 2017 regarding the .feedback registry.
The .feedback PICDRP report (found
here) was read by the working group and discussed at length. More specifically, the Panel found that the .feedback registry was engaged in fraudulent and/or deceptive practices, but neither Specification 11 nor the registry agreement itself contained
a commitment, representation or covenant, that the registry would not engage in fraudulent or deceptive practices. See Exhibit A to the PICDRP report.
The Working Group believed that this was an unjust result and that the next registry agreement must fix this issue so that consumers are not harmed in the future when a registry commits a fraudulent or deceptive
action. Therefore it unanimously agreed to recommendation 36.4 which states:
Recommendation 36.4
“CANN must add a contractual provision stating that the registry operator will not engage in fraudulent or deceptive practices. In the event that ICANN receives an order from a court that a registry has engaged in fraudulent
or deceptive practices, ICANN may issue a notice of breach for such practices and allow the registry to cure such breach in accordance with the Registry Agreement. Further, in the event that there is a credible allegation by any third party of fraudulent or
deceptive practices, other than as set forth in above, ICANN may, at its discretion, either commence dispute resolution actions under the Registry Agreement (Currently Article 5 of the Registry Agreement), or appoint a panel under the PICDRP. For the purposes
of a credible claim of fraudulent or deceptive practices the reporter (as defined by the PICDRP) must only specifically state the grounds of the alleged non-compliance, but not that it personally has been harmed as a result of the registry operator’s act or
omission.”
It is also worth noting that neither ICANN staff nor the ICANN Board raised any issues about this recommendation in their comments to the Initial Report or to the Proposed Final Draft Report, both of which
contained this recommendation. In addition, the ICANN Board of Directors adopted this recommendation without any modification.
ICANN now states that they believe they have accurately captured the intent of the Recommendation 36.4. This could not be further from the truth.
- First, ICANN is refusing to put a commitment in the Registry Agreement whereby the registry agrees to not engage in fraudulent or deceptive practices.
Rather, it proposes to hide that commitment in a termination provision.
- Second, the recommendation is clear that the promise to not engage in fraud be included in the PICDRP, which means obviously that it must be a Public
Interest Commitment made by the registry. Otherwise it could not be included in the PICDRP. ICANN has refused to create such a PIC.
- Third, in its proposed language in the termination section, ICANN states that it will only do so if such fraud is found by a court, a consumer protection
authority, or what it deems to be a suitable arbitration. ICANN has refused to have it be subject to the PICDRP (where a third party….not ICANN…would decide if there was fraud).
- Fourth, ICANN argues that we should not put ICANN in a position to determine fraud. We actually agree with this which is why SubPro recommended it be
in a PICDRP, so that ICANN could choose to have a third party make that determination. ICANN has refused.
What does this mean? It means that if the .feedback situation came up again, we would likely have the same unjust result. A registry would be found to have engaged in fraud by an independent panel, but ICANN
and the panel would be powerless to find the registry in breach of its Registry Agreement. Like in .feedback, consumers were harmed, and ICANN stood by powerless to address. Under ICANN’s proposed language it would still be as powerless.
It is also worth noting that the reason SubPro chose to go with the language it went with in the recommendation was because that language actually appears in another section of the Registry Agreement. More
specifically, ICANN has imposed an obligation for registries to require registrars to have a registrant agreement that prohibits … fraudulent and deceptive practice. The irony here is that ICANN is saying that registries/registrars should police for this,
but ICANN org should not. Apparently, when it concerns ICANN having to do some enforcement, it will not claiming they are not law enforcement and do not have the ability to do that type of enforcement. But apparently ICANN believes that registries and registrars
do have that ability.
To reiterate the SubPro Recommendation:
-
ICANN must include a provision in the Registry Agreement stating that the registry operator will not engage in fraudulent or deceptive practices.
– ICANN has not done this.
- If ICANN receives a Court Order that the registry has engaged in fraud, it may issue a notice of breach
– ICANN has done this.
- Further, in the event that there is a credible allegation by any third party of fraudulent or deceptive practices, other than as set forth in above,
ICANN may, at its discretion, either commence dispute resolution actions under the Registry Agreement (Currently Article 5 of the Registry Agreement), or appoint a panel under the PICDRP. ICANN has NOT done this.
Nothing requires ICANN to police for fraud. Rather, if there is a credible claim, ICANN can send it to a PICDRP for the third party to make the determination OR it can choose to Arbitrate the issue directly
under Article 5 of the Registry Agreement.
Sincerely,
Jeff
From: Karla Hakansson via SubPro-IRT <subpro-irt@icann.org>
Sent: Wednesday, April 30, 2025 1:12 PM
To: Anne ICANN <anneicanngnso@gmail.com>; Jared Erwin via SubPro-IRT <subpro-irt@icann.org>
Cc: subpro-irt@icann.org
Subject: [SubPro-IRT] Re: [Ext] Base RA redline
Hi Anne,
You can find the NxR Base RA redline in the working documents under Topic 36: Base RA on the SubPro IRT wiki:
file:///Users/karla.hakansson/Downloads/REDLINE%20-%20Next%20Round%20Base%20RA%20Preliminary%20Working%20Draft_1%20November%202024%20(7).pdf
Still TBD on the date when we post the RA for public comment. We are shooting for the end of May. The public comment period will be the standard 40 days.
Best,
Karla
From:
Anne ICANN <anneicanngnso@gmail.com>
Date: Tuesday, April 29, 2025 at 15:52
To: Karla Hakansson <karla.hakansson@icann.org>, Jared Erwin via SubPro-IRT <subpro-irt@icann.org>
Subject: [Ext] Base RA redline
Hi Karla,
Do we currently have a link to the entire Base RA redline as previously requested?
Will the Base RA language be going out for public comment at the same time as the draft AGB in its entirety? How long with the public comment period be?
Thank you,
Anne