[RRA] [Ext] RE: Amendment Notification for Afilias Limited [ ref:_00D616tJk._5004MjmOWG:ref ]

Camia Frank camia.frank at icann.org
Wed Oct 13 23:40:17 UTC 2021


Dear Ashley and All,
Thank you to the RrSG for providing the feedback. To continue this discussion, the registry operator is copied on this thread and can directly respond to the RrSG with any questions, clarifications, or suggested modifications to the proposed amendments to address the points raised.
Warm Regards,

Camia Frank
GDS Service Delivery

From: "aheineman at godaddy.com" <aheineman at godaddy.com>
Date: Tuesday, October 12, 2021 at 3:33 PM
To: Rob Gomez <robert.gomez at icann.org>, ICANN Global Support Center <globalsupport at icann.org>, "secretariat at icannregistrars.org" <secretariat at icannregistrars.org>, "rra at icann.org" <rra at icann.org>
Cc: Andee Hill <andee.hill at icann.org>, Andrew Dickson <andrew.dickson at icann.org>, Jeanne Gregg <jeanne.gregg at icann.org>, Camia Frank <camia.frank at icann.org>, "dessa at donuts.email" <dessa at donuts.email>
Subject: RE: [Ext] RE: Amendment Notification for Afilias Limited [ ref:_00D616tJk._5004MjmOWG:ref ]

Dear ICANN, all,

Apologies for being a day late.  Please find below the RrSG response to BOTH the Non-Afilias AND the Afilias related TLD RRA amendment batches. This response is in lieu of responding to each individually.


We applaud Donuts’ efforts to come up with a common form of agreement to cover all of their numerous TLDs, including those formerly operated by Afilias.  That said, there are a number of areas which have raised some concerns amongst registrars.



Donuts Agreements (Non-Afiias TLDs)



  1.  The Preamble to the new RRA contains references to a “Terms and Conditions” document which is now explicitly incorporated into the main RRA.  Unfortunately, unlike the main RRA, the Terms and Conditions document can be amended and/or modified with or without notice (as determined by Donuts).

     *   The Terms and Conditions document not only contains some additional details regarding Sunrise, Landrush, General Availability, DPML, etc., but also includes a number of additional elements normally reserved for the RRA itself including (a) additional reps and warranties, (b) additional limitations of liability (for Donuts only), essentially wiping out any meaningful recovery (c) Additional provisions on confidentiality, (d) and additional items that amount to “Material Breach” not included in the RRA.
     *   There are also many definitions that are in the RRA, that are subsequently defined in the Ts and Cs document often with very different definitions making it difficult to understand which definition is applicable.
     *   Although the Ts and Cs do state that the terms of the RRA control where there are conflicts, the issue is that Donuts’ additional rights, disclaimers and limitations in the Ts and Cs document may not be viewed as conflicting, but rather as a supplement to their rights and obligations.
     *   Again, the Ts and Cs for each of the services can be changed at Donuts’ discretion without notice by simply posting a copy of the new Ts and Cs on their Website.
     *   Despite not being required to give the registrars notice of any changes, the Ts and Cs are very clear that failure to include all of the relevant Ts and Cs in Registrars’ agreements with registrants would be a Material Breach by the Registrar and result in a suspension of services by the Registry.
     *   The primary concern we had was that Donuts’ can essentially get around the requirement to have amendments to the RRA reviewed by ICANN and/or the registrars by simply always putting new Ts and Cs on their website and calling them changes to the Ts and Cs and not the RRA.  The new requirements and legal conditions are binding on the Registrars without any notice and are required to be passed through by registrars to registrants.



  1.  Section 3.2 of the proposed RRA now adds a reference to Donuts’ “Acceptable Use Policy.”  This Acceptable Use Policy is on Donuts website and can be changed with or without notice to the Registrars by simply posting the new AUP on its Website.  Donuts now also adds that it is the Registrar that is primarily responsible for handling remediation and takedowns for abuse activities in violation of Donuts’ AUP.

     *   To summarize, this new AUP is created by Donuts, can say whatever Donuts wants it to say, can change without notice, but it is the Registrars’ responsibility to enforce this policy.
     *   Donuts also adds a reference to other “Registry Policies” which also can change without notice, and also becomes the Registrars’ responsibility to enforce.



  1.  Similarly, Section 3.3 formerly required Registrars to have a registration agreement in place with registrants stating the normal things that Registrars are required to have in the Agreement.

     *   However, Donuts has added a requirement to “reasonably enforce” this Registration Agreement.
     *   Two concerns here:

        *   Donuts now potentially can find registrars in material breach if it believes the registrar is NOT enforcing its registration agreement.
        *   Donuts also includes their “AUP” and other (undefined) “Registry Policies” in this provision making it clear that Registrars must enforce all Donuts’ policies (which can change with or without notice by placing a new version on its website).



  1.  Section 3.5.  Donuts has added a new right to suspend Registrars “to ensure ongoing operation of a secure, stable, and reliant registry system.”  There is no definition in the RRA as to what this means.



  1.  Section 3.6 now requires Registrars to get permission to use, copy, etc. of registrant’s personal data in the way that Donuts’ sets out in its “Donuts Privacy Policy.”



     *   There is no other information about Donuts’ Privacy Policy other than it being on their Website.  Again, this policy can change with or without notice to Registrars (who are now responsible for enforcing Donuts’ policy)
     *   There is no reference in this section to the Data Processing Addendum, but simply a requirement that Registrars ensure that Registrars’ get permission from their customers for Donuts to use the data however it sees fit in its Privacy Policy.



  1.  Section 3.9 – now gives Donuts the right to suspend a registrar temporarily due to “excessive failed domain create requests”. There is no definition of what it considers “excessive.”  Although there is a provision 7.2 in the Ts and Cs where it states that Donuts can suspend a Registrar for submitting 1,000+ failed domain creates in any 24 hour period.  Is “excessive” supposed to mean 1,000 or something else?



  1.  Section 6.1.1:  Now adds an indemnification obligations for Registrars to indemnify Donuts for any “threatened” claim as opposed to just “actual” claims.  This needs to be evaluated by individual legal teams.



Donuts (Afilias Related TLD)



The former Afilias TLDs now owned and operated by Donuts have all of the above issues, however, Unlike the above Donuts TLDs, these TLDs have never had a “Terms and Conditions” document.  The Registrars do not want to see any additional Terms and Conditions document that add any legal terms and conditions to an RRA unless those terms and conditions are (a) consistent with the RRA terms and (b) can only be changed in the manner in which RRAs are changed.



It is unfair for registries to be allowed to add legal terms and conditions above and beyond those in their RRA in a separate document when those Terms and Conditions can be changed at their discretion without notice and which we, as registrars, are required to not only follow but enforce.  We see this as nothing more than a way to circumvent the RRA requirements and the process by which those terms may be amended.



Please let me know if you have any questions regarding this response and/or if you would like to discuss further.



Thanks,



Ashley Heineman

Chair, RrSG


From: Rob Gomez <robert.gomez at icann.org>
Sent: Friday, August 27, 2021 3:39 PM
To: Ashley Heineman <aheineman at godaddy.com>; ICANN Global Support Center <globalsupport at icann.org>; secretariat at icannregistrars.org; rra at icann.org
Cc: Andee Hill <andee.hill at icann.org>; Andrew Dickson <andrew.dickson at icann.org>; Jeanne Gregg <jeanne.gregg at icann.org>; Camia Frank <camia.frank at icann.org>; dessa at donuts.email
Subject: Re: [Ext] RE: Amendment Notification for Afilias Limited [ ref:_00D616tJk._5004MjmOWG:ref ]

Caution: This email is from an external sender. Please do not click links or open attachments unless you recognize the sender and know the content is safe. Forward suspicious emails to isitbad at .


Dear Ashley,

Thank you for the follow-up message to inform us that you require additional review time. We approve your request for an extension beyond the original due date.

We look forward to hearing back from you by Monday, 11 October 2021.

Kind regards,

Rob Gomez
GDS Service Delivery


From: "aheineman at godaddy.com<mailto:aheineman at godaddy.com>" <aheineman at godaddy.com<mailto:aheineman at godaddy.com>>
Date: Friday, August 27, 2021 at 10:20 AM
To: ICANN Global Support Center <globalsupport at icann.org<mailto:globalsupport at icann.org>>, "secretariat at icannregistrars.org<mailto:secretariat at icannregistrars.org>" <secretariat at icannregistrars.org<mailto:secretariat at icannregistrars.org>>, "rra at icann.org<mailto:rra at icann.org>" <rra at icann.org<mailto:rra at icann.org>>
Cc: Andee Hill <andee.hill at icann.org<mailto:andee.hill at icann.org>>, Andrew Dickson <andrew.dickson at icann.org<mailto:andrew.dickson at icann.org>>, Jeanne Gregg <jeanne.gregg at icann.org<mailto:jeanne.gregg at icann.org>>, Rob Gomez <robert.gomez at icann.org<mailto:robert.gomez at icann.org>>, Camia Frank <camia.frank at icann.org<mailto:camia.frank at icann.org>>, "dessa at donuts.email<mailto:dessa at donuts.email>" <dessa at donuts.email<mailto:dessa at donuts.email>>
Subject: [Ext] RE: Amendment Notification for Afilias Limited [ ref:_00D616tJk._5004MjmOWG:ref ]

Dear all,

Due the high volume of RRA Amendment Notification Requests and the corresponding amount of time necessary to conduct a proper review, the RrSG requests and extension of 45 days.

Thank you in advance.

Ashley Heineman
Chair, RrSG


From: ICANN Global Support Center <globalsupport at icann.org<mailto:globalsupport at icann.org>>
Sent: Thursday, August 5, 2021 1:43 PM
To: secretariat at icannregistrars.org<mailto:secretariat at icannregistrars.org>; rra at icann.org<mailto:rra at icann.org>; Ashley Heineman <aheineman at godaddy.com<mailto:aheineman at godaddy.com>>
Cc: andee.hill at icann.org<mailto:andee.hill at icann.org>; andrew.dickson at icann.org<mailto:andrew.dickson at icann.org>; jeanne.gregg at icann.org<mailto:jeanne.gregg at icann.org>; robert.gomez at icann.org<mailto:robert.gomez at icann.org>; camia.frank at icann.org<mailto:camia.frank at icann.org>; dessa at donuts.email<mailto:dessa at donuts.email>
Subject: Amendment Notification for Afilias Limited [ ref:_00D616tJk._5004MjmOWG:ref ]

Caution: This email is from an external sender. Please do not click links or open attachments unless you recognize the sender and know the content is safe. Forward suspicious emails to isitbad at .


Hello Ashley,

Attached, please find the cover letter and the red-lined RRA Amendments for 22 TLDs submitted by Afilias Limited to be shared with your Stakeholder Group.

Please respond by 23:59 UTC on Thursday, 26 August 2021 to let us know if your Stakeholder Group has concerns, does not have concerns, or if additional review time is required. If the Stakeholder Group has concerns, ICANN org will continue with the next step of the RRA Amendment Procedure, which is to consult with the RrSG and the Registry Operator to attempt to resolve any such concerns.

Warm Regards,

Camia Frank
GDS Service Delivery

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