[bc-gnso] Uniformity of Contracts to Address Registration Abuse

[Phil Corwin]

On today's BC call there was a brief discussion relating to the GNSO Council's upcoming consideration of further steps on Uniformity of Contracts to Address Registration Abuse.

I thought BC members might be interested in reviewing the comment letter that ICA filed, and our further observations, on this subject ---

http://internetcommerce.org/Registration_Abuse_Time_to-Fish_or_Cut_Bait

The ICANN Policy and Decision Making Process is Seriously Flawed
Submitted by Philip Corwin on Wed, 08/15/2012 - 22:03
ICANN's policy and decision making process is supposedly based upon a bottom up, community consensus model. While we are all for careful deliberation before major policies are adopted and implementing actions are taken, we cannot support endless process for its own sake - especially when no concrete action ever results.
ICA has just filed a comment letter regarding the July 2012 Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse. We favor the concept of uniformity in related provisions of complementary contracts, and we certainly are against "registration abuse" (although we note that the most extensive study of this subject ever undertaken, by the Registration Abuse Policy Working Group, failed to identify a single registration abuse for which it recommended uniform contract language as a response). ICANN staff's response to an October 2011 GNSO request was to recommend the initiation of yet another Policy Development Process assisted by yet another Working Group.
But the subject of registration abuse has already been under study for nearly four years and has resulted in the issuance of three separate reports totaling 212 pages! So our response to this recommendation is "Enough is enough" and that it's time to "fish or cut bait" - especially when the proposed PDP would be unlikely to result in any final action but just more bureaucratic paper shuffling "to evaluate whether a minimum baseline of registration abuse provisions should be created for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse".
ICANN's expert and well-compensated legal staff already has more than enough information to propose draft uniform contract language for whatever registration abuses it believes are taking place, and if they think this is an important subject they should do so and put that specific language out for community comment. And if not, then discussion of this subject should be terminated.
We don't fault ICANN staff for producing a report requested by the GNSO. But we do perceive them as weighing in for repetitive inquiry on subjects in which there is little evidence of "bottom up" community interest, and against action on subjects where there is, based upon internal organizational objectives as well as outside political pressure.
We hope our suggestion will be adopted. As for the time and effort that won't be expended by ICANN staff and community members on yet another repetitious inquiry into a well-examined subject, we can think of one very important subject that is way overdue for review and action to which it could be devoted, and which large elements of the community have already expressed support for.
And that subject is procedural UDRP reform, with the primary objective being development of a standard contract for all UDRP arbitration providers. The UDRP is the only major ICANN policy that has never been subjected to review and reform. We believe that ICANN's empowerment of select organizations to transfer or extinguish domains without enforceable standards and limitations is inherently subject to abuse, and that addressing it should be a high priority. That's a discussion of uniform contract language we'd be happy to enthusiastically engage in.
ICA's comment letter follows ---
VIRTUALAW LLC

Philip S. Corwin, Founding Principal
1155 F Street, NW Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
psc at vlaw-dc.com
August 15, 2012
By E-mail to: uoc-prelim-issue-report at icann.org<mailto:uoc-prelim-issue-report at icann.org>
Internet Corporation for Assigned Names and Numbers (ICANN)
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536
Re: Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse
Dear ICANN:
I am writing on behalf of the members of the Internet Commerce Association (ICA) in regard to ICANN's Comment Period on the Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse. This Comment Period opened on July 25th and closes today, August 15th.
ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers.
Executive Summary

  *   ICA supports the creation of a minimum baseline of registration abuse provisions for all in scope ICANN agreements, so long as such provisions are devoted solely to registration abuses and do not stray into the area of use abuses that are the proper province of national governments, law enforcement, and similar entities.
  *   However, ICA opposes the initiation of yet another PDP to further extend the consideration of a subject that has already been under study for almost four years - especially when the proposed PDP would not constitute the final step in this process.
  *   Overall, ICA views this issue as symptomatic of serious flaws in the ICANN policy development process in which important matters are subjected to endless study and debate without any final determination or action, and community members are asked to devote innumerable hours to participation in working groups that create reports which in turn just lead to the initiation of additional reports and working groups.
  *   Rather than initiate another PDP, we suggest that ICANN's legal staff prepare draft provisions for the relevant in scope ICANN agreements that are as uniform as possible and that address the limited number of registration abuses at issue, and that these draft provisions should be put out for comment by contracted parties as well as the ICANN community.
Discussion
This Issue has Already Been Subjected to Multiple Processes that Reexamined Identical Ground and Failed to Reach a Conclusion or Result in Concrete Action
The consideration of whether ICANN should create a minimum baseline of registration abuse provisions for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse, has been under study for nearly four years.
This has already resulted in the issuance of three separate reports totaling 212 pages in length:

  *   On 25 September 2008, the GNSO Council requested an issues report from ICANN Staff that resulted in the issuance, on October 29, 2008, of the 49 page
"GNSO Issues Report on Registration Abuse Policies"

  *   More than one year later, in December 2009, the GNSO Council agreed to charter a Working Group to investigate the open issues identified in Registration Abuse Policies report, before deciding on whether or not to initiate a Policy Development Process (PDP); and a Registration Abuse Policies Working Group (RAPWG) was chartered in February 2009. The RAPWG issued its 129 page Final Report on May 29, 2010. (Note: I participated in the RAPWG on behalf of ICA and in affiliation with the Commercial and Business Users Constituency.)
  *   More than one additional year subsequently passed until, on October 6, 2011, the GNSO requested yet another report "to evaluate whether a minimum baseline of registration abuse provisions should be created for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse". That request resulted in the issuance of the 34 page "Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse" on July 25, 2012.
  *   ICANN staff is now suggesting that yet another working group be formed to address this topic, stating,
Staff recommends that the Council initiate a Policy Development Process on this topic. Should the PDP proceed, Staff suggests that the working group conduct further research, as follows:

  *   Understand if registration abuses are occurring that could be addressed more effectively if consistent registration abuse policies were established;
  *   Determine if and how (registration) abuse is dealt with in those registries (and registrars) that do not have in place any specific provisions or policies to address abuse; and
  *   Identify how registration abuse provisions, where they exist, are implemented in practice and whether they are effective in addressing registration abuse.
If the results of this research reveals that there is value in having uniform provisions to address registration abuse, the PDP WG should also consider a set of initial benchmarks for developing an initial baseline or framework of provisions to battle registration abuse, and define potential reporting requirements to track progress toward those goals.

  *   If the recommended PDP was initiated and a new WG formed, it appears that it would be largely tasked with reexamining issues that have already been addressed by the prior efforts. Further, it would likely lead to yet additional study, rather than the adoption of uniform contract provisions, given that the main task envisioned for the WG would be to "consider a set of initial benchmarks for developing an initial baseline or framework of provisions to battle registration abuse".
With all due respect, enough is enough. To the extent that registration abuses create serious problems it is inexcusable to address the issue through a hyper-bureaucratic and seemingly never-ending process that after nearly four years only seems to promise yet multiple additional working groups and reports without any foreseeable conclusion. And it is frankly abusive to request that volunteers from the ICANN community devote hundreds of additional collective hours to participation in new WGs that reexamine already examined issues and are unlikely to lead to any near-term results.
The ICANN Policy/Decision Model Compares Unfavorably to both Private and Public Sector Counterparts
ICANN is a unique organization - a non-profit sector entity making decisions with public policy implications. Yet, whether measured against private or public sector models, the ICANN policy and decision making process is clearly deficient and in need of some serious reform. We are all for careful deliberation, but only up the point where it devolves into pointless repetition of effort and the absence of any final conclusion to act or not.
If ICANN were a pure private sector entity that perceived that its various contracts with third parties required revisions to address specific issues in a uniform matter it would request that its in-house or outside counsel to prepare draft language -- and such changes would likely be approved and implemented within months.
If ICANN were a U.S. government agency with a similar perspective it would issue a preliminary notice of proposed rulemaking and solicit public comment. It would subsequently issue a proposed final rule and again solicit public comment. While the entire process would take longer than for a private sector entity, it would likely be concluded in less than two years before the final rule was implemented.
ICANN Legal Staff Should Prepare Uniform Draft Contract Provisions for Comment by Contracted Parties and the Community
The most extensive study of registration abuses was undertaken by the RAPWG. We have reviewed the entirety of the RAPWG's May 2012 Final Report and note that it does not identify a single registration abuse for which it recommended alterations of ICANN contract language. We cannot imagine any successor WG unearthing new registration abuses or making alternate consensus recommendations.
On the precise subject of Uniformity of Contracts, the RAPWG made the following recommendation (which had strong support but also significant opposition):
The RAPWG recommends the creation of an Issues Report to evaluate whether a minimum baseline of registration abuse provisions should be created for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse.
That Issues Report was undertaken and is the document that is the focus of this comment letter. As that Report notes:
Earlier reports on this topic (see October 2008 Issues Report and the RAPWG Final Report), describe the lack of uniformity of abuse provisions among the currently delegated gTLD registry agreements, as well as the absence of specific abuse provisions in the Registrar Accreditation Agreement (RAA). Across the spectrum of existing registry agreements, there are elements of similarity but each contract (currently) is customized to the uniqueness of the respective registry's business model and operating conditions.
Clearly, the work required to identify existing anti-abuse provisions in relevant contractual agreements, and the lack of uniformity thereof, has already been done and there is no need or justification for revisiting that subject. ICANN staff, in preparing the July 2012 Preliminary Issues report, already surveyed a variety of existing contracts to analyze the extent to which registration abuse was addressed and whether that was done in a uniform manner.
ICANN is the contracting party for all four of the contract types implicated - Registry Agreement (RA), Registry-Registrar Agreement (RRA), Registrar Accreditation Agreement (RAA), and Registration Agreement (RtA). And ICANN has a highly qualified and well compensated legal staff, as well as access to prestigious outside counsel.
We can see little potential gain from the initiation of a new PDP and the establishment of yet another WG on this subject, and do not believe the community should again be asked to expend countless hours on something that has already been exhaustively examined. ICANN has more than enough information to proceed if it believes that uniform contract provisions to address registration abuses should be developed. In our view, the proper next step, if there is to be one, is to have ICANN inside and/or outside counsel develop proposed such proposed draft language and thereby provide potentially affected contracted parties, as well as the overall community, with concrete draft provisions to focus their comments on.
In the absence of such proposed contractual language, the entire subject should be dropped rather than embark on yet another chapter of a seemingly never-ending process that does not result in conclusive action.
Conclusion
ICA appreciates this opportunity to file this reply comment regarding Uniformity of Contracts to Address Registration Abuse.
As stated above, while we support the concept of such uniform contract language we believe that after almost four years of inquiry into this subject it is time to "fish or cut bait". We therefore cannot support the initiation of yet another PDP and the creation of a related WG. ICANN legal staff has more than enough information to prepare proposed draft contractual provisions for public comment. They should either do so, or further consideration of this entire matter should be terminated.
Thank you for considering our views in this matter.
Sincerely,
Philip S. Corwin
Counsel, Internet Commerce Association


Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell

Twitter: @VlawDC

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

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