[GNSO-Accuracy-ST] Potential Questions for ICANN Org

Michael Palage michael at palage.com
Wed Nov 24 16:36:18 UTC 2021

Hello Steve,


Your welcome for these “potential” questions.  As I noted in my previous email it is up to a working group member to formally submit them or a variation of them to the Google Doc, or an individually authored question inspired by them.


With regard to your comments:


My use of active and passive was intended to be analogous to active and passive sonar on a submarine.  Active enforcement, means that ICANN Compliance has a list of local laws, e.g. Chinese Real Name Verification, or potential NIS 2.0 Article 23 and ICANN Compliance is proactively auditing these requirements.  Personally, I think this is potentially burdensome on ICANN Compliance but it would be nice if ICANN Org could inform registrars of laws they may wish to be aware of in their daily operation.  I think this could merged seamlessly with the work ICANN Org is currently doing in tracking various global legislative initiatives that impact the domain name industry.


Passive enforcement would be ICANN Compliance responding to an inquiry from a third party.  My apologies for the typo, 16 was intended to be private sector and 17 was intended to be public sector. I personally think a passive mechanism could be appropriate in certain situations, but I believe the case for taking action on behalf of complaints from the public sector is specifically supported by ICANN’s articles of incorporation which state in relevant part that ICANN shall “pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet.” (emphasis added). Somehow not providing a mechanism for governments to inform ICANN of non-compliant contracting parties is personally hard for me to square with this “purpose” in the ICANN articles of incorporation.


Hopefully this list and my subsequent responses has inspired some questions of your own.


Have a great Thanksgiving holiday.


Best regards,






From: Steve Crocker <steve at shinkuro.com> 
Sent: Wednesday, November 24, 2021 10:17 AM
To: Michael Palage <michael at palage.com>
Cc: gnso-accuracy-st at icann.org
Subject: Re: [GNSO-Accuracy-ST] Potential Questions for ICANN Org




Thanks for these questions and grammatical corrections – if someone should insert any of the questions I submitted please make note of the errors identified by Steve.  Please see my comments below in response to questions 16 and 17.  I also spotted a minor typo in question 7.





On Mon, Nov 22, 2021 at 4:59 PM Michael Palage <michael at palage.com <mailto:michael at palage.com> > wrote:

Hello All,


As I mentioned in my previous email today, I found it a bit disappointing that we have only proposed 7 questions to ICANN Org. Therefore, over the weekend I did a lot of re-reading and re-listening to our plenary calls and I have composed the following working list of potential questions that the group may want to ask ICANN. This is not an exhaustive list, but I will continue to try and seed the discussion within the group prior to finalizing the list of questions to ICANN.  


Best regards,




Potential Questions:


1.	Does ICANN Org have any internal documentation regarding “accuracy” or “registration data inaccuracy” complaints which they use for internal training and/or onboarding of new ICANN Compliance team members? If so, can they please share it with the Working Group?


2.	If ICANN Org does not have internal training and/or onboarding documentation to provide guidance on the meaning of accuracy or registration data inaccuracy, is it up to individual Compliance team members to apply their own subjective interpretation of the relevant contracts and parties? If so, how does ICANN Compliance management resolve potential conflicts between divergent assessments from Compliance team members?


3.	The Working Group’s current best understanding of the “contractual construct” regarding accuracy as understood by the Working Group is:

Accuracy is syntactical accuracy of the registration data elements processed by Registrars and certain Registries as provided by the Registered Name Holder or Account Holder as well as the operational accuracy of either the telephone number or the email address.

To be determined to be syntactically accurate, the contact must satisfy all requirements for validity (See Whois Accuracy Program Specification Sections 1b-d). For example, for email addresses all characters must be permissible, the “@” symbol is required, and there must be characters before the “@” symbol.

To be determined to be operably accurate, the contact must be operable as defined in the Whois Accuracy Program Specification Section f. The RAA currently requires validation of syntactical accuracy and verification of operational accuracy including an affirmative response from the Registered Name Holder for either email or phone.

Can ICANN Org share any thoughts or concerns with this contractual construct based on their existing operational practices involving accuracy?


4.	Under this contractual construct cited above would the following RDDS information be deemed accurate provided that the registrar got an affirmative response from the email account listed below: 


Registrant: Mickey Mouse

Organization: Disney

Email: disney-login at protonmail.com <mailto:disney-login at protonmail.com> 

Telephone: +1-407-934-7639

Address: 1375 E Buena Vista Dr, Orlando, FL 32830

 SDC: Nice example.

If ICANN Compliance was to receive a Data Inaccuracy Complaint in connection with the above referenced RDDS data fields, and they were to contact the Sponsoring Registrar who provided proof of an affirmative response from the email would ICANN Compliance deem this accurate and close out the ticket? If not why, and what next steps would ICANN Compliance undertake.


5.	In the Whois Accuracy Program Specification to the 2013 RAA, there is a requirement to “verify” either the Registered Name Holder’s email or telephone with an affirmative response. Can ICANN Compliance confirm that there is no such affirmative response requirement in connection with the 2003 Whois Data Reminder Policy?  


6.	When ICANN Compliance audits Registrars regarding Whois Data Reminder Policy obligations there is a requirement for Registrars to provide “copies of each WDRP Notice or an electronic database documenting the date and time, and the content, of each WDRP notice sent under this policy.” However, there does not currently seem to be any requirement the Registrars prove that the reminder was received, just that it was sent. As part of this audit process does ICANN inquire about email bounce backs, disconnected telephone numbers or returned postal communication, if so what are these follow-up questions and/or remedial actions that ICANN takes. 


7.	The Whois Data Reminder Policy references “registrant” whereas the Whois Accuracy Program references “Registered Name Holder”. Section 1.16 of the 2013 RAA defines "Registered Name Holder" as the holder of a Registered Name. Can ICANN Compliance please reconcile the use of these terms. Specifically does ICANN Compliance deem a proxy provider as the “registrant” under the 2003 Whois Data Reminder Policy? Additionally, does ICANN Compliance deem a proxy provider as the “Registered Name Holder” under the 2013 RAA? 

SDC: My understanding is "registrant" and "registered name holder (RNH)" are the same.  (Similarly, I understand "Account Holder" and "customer" to be the same as each other and not necessarily the same as the registrant.)


SDC: With respect to proxy relationships, there are four proxy levels:

P0: No proxy provider is involved.  The name of the registrant is in the registrant field.

P1: The registrant field indicates this is a proxy registration, and the proxy service is provided by the registrar or an organization under the registrar's control.

P2: The registrant field indicates this is a proxy registration, and the proxy service is provided by an organization not under the registrar's control.

P3: The registrant field does not indicate this is a proxy registration and the registrant field is a party different from the party using the registration.  A typical case is when an attorney registers the domain name on behalf of their client.


These four proxy levels have distinct operational implications.  P1 and P2 registrations are both clearly proxies.  For P1, the registrar has the ability to pierce the veil.  For P2, the registrar does not have the ability to pierce the proxy veil.  However, for both P1 and P2, if there is a cause of action against the registrant, the legal responsibility applies to the registrant.  P3, on the other hand, is indistinguishable from P0.  If there is a cause of action against the registrant, the party listed as the registrant bears responsibility.


With respect to our current task, the related accuracy questions are:

1.	whether the registration template includes the distinctions between P0, P1 and P2, and
2.	whether each registration accurately indicates the proxy level of this registration.

8.	Is ICANN Compliance or ICANN Legal aware of any instances where any contracting party has argued that the terms “registrant” and the “Registered Name Holder” are not equivalent. If so, can ICANN Org summarize this divergent position taken by the contracting party and ICANN Org’s response and how any dispute was resolved.


9.	ICANN Compliance during their update to community at ICANN72 stated:


This  isn't  much  new  information,  but  wanted  to  give  everyone  an  

outline of how we've adjusted our compliance process since essentially 

GDPR  which  was  May  of  2018  when  the  temporary  specification  went  

into  effect.  Namely,  the  things  that  we  need  to  do  now  are  to  obtain  

additional information and background from our reporters in order to 

verify complaints, this usually confirming they're the registrant if that’s 

the case, getting additional stuff that might have been otherwise 

displayed in the WHOIS prior to May of 2018. (emphasis added)

Can ICANN cite the legal authority by which they are processing this non-public Registrant data? Does ICANN acknowledge that they are the sole Controller for this information that they are collecting and processing? If this information is forwarded to Registrars and/or Registries for action, does ICANN Org deem that contracting party a Processor or Joint Controller? Has ICANN undertaken a Data Privacy Impact Assessment (DPIA) in connection with the processing of this non-public Registrant Data? If so can it provide the Working Group a copy of that DPIA.

10.	According to the quote above, ICANN Compliance stated that complaints are “usually” from the Registrant. Does ICANN provide any metrics on the Data Inaccuracy complaints from Registrants/Registered Name Holders and third parties? If so can ICANN Compliance provide those numbers.


11.	One of the more popular Closure Code Descriptions cited by ICANN Compliance for Registration Data Inaccuracy is “the domain is suspended and the registrar is not required to address the WHOIS inaccuracy complaint”. Given that there are some Registry Abuse Programs that result in the suspension of a domain after inaction by a Registrar, does ICANN appreciate the potential gap in their reporting.  A complaint against a Registrar regarding inaccurate registration data may be closed out through no action of the Registrar, but instead solely the action of the Registry. Does ICANN acknowledge that non-complaint Registrars may be slipping through the cracks because of the actions of pro-active Registry Operators.


12.	Some of the Closure Code Descriptions listed by ICANN for Data Inaccuracy include: the complaint is out of scope because it is a duplicate of a closed complaint; the complaint is out of scope because it is regarding a country-code top-level domain; the complaint is out of scope because the complainant did not provide the requested information; the registrar verified the domain's WHOIS information is correct; the registrar corrected its noncompliance; and the WHOIS data has been updated. Can ICANN Compliance provide a list of all applicable/potential Closure Code Descriptions for Data Inaccuracy?


13.	What is the legal basis that ICANN believes a Registrar is exempt from ensuring accurate registrant data with a “suspended” domain name?


14.	Has ICANN as part of its Registry and/or Abuse Audits every surveyed Registries to determine how many domain names they suspended under their Abuse Policy after the failure of a Registrar to act?


15.	Section 3.7.2 of the 2013 ICANN Registrar Accreditation Agreement (RAA) states that “Registrar shall abide by applicable laws and governmental regulations.” Does ICANN Org have any active mechanisms to ensure compliance with this enumerated obligation set forth in the RAA? If so what are they?


16.	Does ICANN Org have any passive mechanisms by which to receive complaints from the public sector in connection with potential violations of Section 3.7.2 of the RAA? If so what are they? 

 SDC: What is meant by "passive mechanisms"?

17.	Does ICANN Org have any passive mechanisms by which to receive complaints from the public sector in connection with potential violations of Section 3.7.2 of the RAA? If so what are they? 

 SDC: This seems to be the same question as 16.

18.	There are multiple terms in the 2013 RAA referencing “reasonable and commercially practicable”; “commercially reasonable efforts”; and “commercially practical updates” who makes the determination on what is commercially practicable or reasonable, i.e. ICANN, Contracting Parties, mutual agreement between ICANN and Contracting Parties?


19.	What standard does ICANN Compliance currently use in determining commercially “practicable” and “reasonable”?


20.	Has ICANN Legal provided guidance to ICANN Compliance on how to determine commercially “practicable” and “reasonable”?


21.	When was the current standard for “practicable” and “reasonable” adopted and what are the mechanisms for modifying this standard?


22.	If a standard does not exist, when does ICANN Org anticipate creating one.


23.	Currently there is no choice of law provision in either the 2013 RAA or baseline Registry Agreement. However, in one of the few arbitrations between ICANN and a contract party, ICANN requested the Tribunal to apply California contract law, see https://www.icann.org/en/system/files/files/terms-of-reference-09may12-en.pdf .  Does ICANN Legal believe that California contract law still applies in connection with any potential conflict in interpreting either the 2013 RAA or the Registry Agreement? Has ICANN Legal’s position change on the applicability of California contract law since 2012, if so how and can ICANN Legal provide an update on its applicability? 


24.	Section 1.e of the Whois Accuracy Specification Program contained in 2013 RAA states that Registrars will “[v]alidate that all postal address fields are consistent across fields (for example: street exists in city, city exists in state/province, city matches postal code) where such information is technically and commercially feasible.” ICANN Org and the Registrars engaged in a multi-year consultation to evaluate the technical and commercial feasibility. It appears that the last update given to the community was in March 2018.  Can ICANN Org please provide an update on this work and an estimation completion date?


25.	In connection with the work on address cross field validation, the ICANN wiki states “ the objective of ICANN is to come to a mutual agreement that will result in a minimum of two-thirds (2/3) vote in support of the defined solution(s) by the ICANN Accredited Registrars.” See https://community.icann.org/display/AFAV. Does this 2/3 support vote for technical and commercial feasibility for cross field address validation apply to the other commercial feasible and practicable standards referenced in the 2013 RAA?


26.	In WIPO UDRP Proceeding D2021-1050, the Panelist detailed multiple “inaccurate disclosures” regarding the registrant of the domain name in question and other “misconduct by the Respondent and by the Registrar.” The Panelist further wrote that “[t]his is an issue that the Panel believes should be addressed by ICANN, and the Panel requests that the Center share this decision with ICANN so that ICANN may consider whether to impose restrictions on such behavior by registrars.” Can ICANN confirm if WIPO ever contacted ICANN compliance in connection with this dispute and what if any actions did ICANN Compliance take?


27.	Because WIPO Proceeding D2021-1050 documented a clear conflict of interest between a Registrar and a Privacy Proxy provider does ICANN believe it may need to revisit its reporting Compliance report procedures?  


28.	During ICANN72 ICANN Compliance stated that several complaints regarding access to non-public registrant data were closed after they were deemed out of scope once that Proxy Provider information was disclosed. Considering the findings in WIPO Proceeding D2021-1050, can ICANN Compliance detail what if any safeguards are in place to document and remedy false and/or inaccurate information associated with Privacy and Proxy registrations?


29.	Does ICANN Compliance have a formal reporting channel for UDPR and URS providers to share information with ICANN compliance regarding false or inaccurate Registrant data?




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