[bc-gnso] FW: Lifting the lid on ICANN's RAA negotiations

Phil Corwin psc at vlaw-dc.com
Wed Feb 8 15:16:11 UTC 2012



Lifting the lid on ICANN's RAA negotiations
by Kieren McCarthy | 7 Feb 2012 |
Starting this week and ending on 15 February when a revised Registrar Accreditation Agreement (RAA) is expected to be published for public review, .Nxt will take you inside the secret negotiations to update the domain name system's key contract.
In response to a failure by ICANN to provide sufficient openness or transparency regarding the negotiations, despite promises otherwise, we have been in contact with many of those in and surrounding the negotiations, all of whom have spoken on the condition of anonymity.
[Description: http://news.dot-nxt.com/sites/news.dot-nxt.com/files/raa-signing.jpg]
Signing the last RAA revision in 2009. The smiles are not there in 2012.
Our investigation has uncovered:
*         The depth of disagreement between registrars
*         That ICANN is willing to "throw registrars under the bus" in order to keep governments happy and look as if it is solving the problem
*         The pressure placed on ICANN's negotiating team to force through results dictated from above
*         A conscious effort by ICANN to force registrars' hands by making public statements about what changes will be included, despite having no idea how to introduce them
*         A refusal on some registrars' part to acknowledge that the world has changed, to the extent that some are advocating walking away from the whole process
Our investigation also highlights a significant number of failures on the part of ICANN staff, including:
*         Agreeing to a fast-track negotiation despite the likelihood of failure
*         Insisting on closed-doors discussions, despite a past history of it failing
*         Failing to keep the community adequately informed
*         Putting forward the wrong negotiation team
*         Undermining negotiations through public pronouncements
*         Failing to fully understand registrar realities but expecting registrars to work in good faith to make changes work shortly after refusing to listen to their concerns
We will begin our review later this week with the most contentious part of RAA negotiations - the insistence that there be some kind of verification of registrant data for domain names.
But first some quick history
When the ICANN Board ordered a fast-track negotiation over the key contract that the organization has with registrars - the RAA - it used unusually strong language.
It called for staff and registrars to "rapidly develop a set of amendments" and to do so "as a matter of extreme urgency""The Board wishes to convey its sense of urgency on this issue," began the resolution<http://www.icann.org/en/minutes/resolutions-28oct11-en.htm#7> of 28 October. Another part read: "The Board requires action." It called for staff and registrars to "rapidly develop a set of amendments" and to do so "as a matter of extreme urgency".
Equally strong language had come from the world's governments earlier that week. They were sick of the delay in changes to the RAA to the extent that they threatened to walk away<http://news.dot-nxt.com/2011/10/24/governments-registrars-fight> from the entire decision-making structure that ICANN embodies.
A few months later, the Federal Trade Commission (FTC), not to mention two Congressional hearings and several business coalitions focussed in on one of the issues tied up with RAA negotiations - the issue of accurate registrant data.
Open, transparent? Nope.
Both parties were aware this did not please anyoneDespite ICANN's own obligation to "operate to the maximum extent feasible in an open and transparent manner", it decided to hold negotiations over the RAA in secret, with just ICANN staff and registrar representatives present. Both parties were aware this did not please anyone.
In an announcement<http://www.icann.org/en/announcements/announcement-02dec11-en.htm>, ICANN noted: "To promote transparency and timely communications, ICANN has created a dedicated Wiki to describe the communications plan, publish regular status updates on the amendment topics under consideration, and provide comment opportunities to the broader ICANN community."
The registrars promised the same<http://gnso.icann.org/mailing-lists/archives/council/msg12335.html>: "To ensure transparency, registrars and ICANN will update the community regarding the substance and progress of negotiations. Decision rationale will be included as part of those communications and at the time the new agreement is published for public comment."
As soon as negotiations began, however, the promise of openness and transparency into the discussions was jettisoned. Not only are the meeting reports<https://community.icann.org/display/RAA/RAA+Negotiation+Meeting+Reports> largely meaningless but ICANN has stopped producing them.
As of today, 7 February, the last report available is from 5 January. There have been at least two meetings between the parties since 5 January; none are listed.
Uncovering the discussion
ICANN counted on its negotiations being secretICANN counted on its negotiations being secret. However such is the level of concern at the tactics used, and the failure of key parties on both sides to approach the negotiations in good faith, that those concerned about the process have spoken to us on the condition of anonymity.
What results is as damning as the letter<http://news.dot-nxt.com/2011/12/16/ftc-letter-to-icann> sent to ICANN recently by the Federal Trade Commission, which found that ICANN had "neglected to respond to the needs of this community both in the accuracy of Whois data and in response times for access and action".
Yet again, ICANN has failed to effectively carry out its job. When the revised RAA is published - which should be on 15 February - we will publish what changes we believe ICANN needs to make in order to maintain confidence in its ability as an organization to look after the domain name system

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey


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