[RRA] RRA Amendment Notification for .net [ ref:_00D616tJk._5004MnYS1n:ref ]

Tue Jan 18 18:50:49 UTC 2022

Hello Ashley,

Happy New Year to you and all who are in receipt of this email.

Thank you for your inquiry.

This email responds to the questions raised by the Registrar Stakeholder
Group (RrSG) regarding Verisign's proposed amendment to the force majeure
section in the .NET Registry-Registrar Agreement (RRA).

We proposed the following revisions (in redline) to the force majeure
section in the .NET RRA:

6.3. Force Majeure. Neither Party shall be responsible for any failure to
perform any

obligation (other than payment obligations) or provide service hereunder
because of any Act of God, strike, work stoppage, cyberattack, to protect
against imminent and substantial threats to the security and stability of
the Registry TLD, System, Verisign's name server operations or the internet,
governmental acts or directives, war, riot or civil commotion, equipment or
facilities shortages which are being experienced by providers of
telecommunications services generally, or other similar force beyond such
Party's reasonable control.

In response, the RrSG questioned the inclusion of "cyberattack" in the force
majeure clause, stating:  

"In regard to the .net RRA amendment, the RrSG has concerns about the
changes to the Force Majeure language in Section 6.3 and the impact it could
have on registrants.  Specifically, by including cyberattacks as a force
majeure events, registrars negatively impacted by the registry's failure to
perform will have no recourse for such events. We worry that this leaves our
customers without remedy in such a case. 

 Could Verisign provide us with some additional details on the context and
intent behind this language, particularly as it applies to our concern noted
above?  

Verisign has proposed adding cyberattacks to the force majeure section of
the .NET RRAs to confirm and make explicit what we believe legal authorities
and current industry practice in the DNS and other industries already
provide. The change will align the force majeure provisions of .NET RRAs
with the express provisions of other RRAs previously approved by ICANN and
registrant agreements already used by registrars.

More specifically, the change in the force majeure section is made for the
following reasons. 

First, the .COM and .NAME RRAs were recently amended, with ICANN's approval,
and without objection or comment by the RrSG, to include cyberattack in the
force majeure clauses of those agreements.  "Cyberattack" is further
explicitly included in the force majeure clause of the "root zone
maintainer" agreement between ICANN and Verisign.  The proposed amendment to
the .NET RRA aligns it with these other agreements.

Second, Verisign believes that cyberattacks are a recognized external threat
that fall under the existing force majeure clause because they are beyond a
party's reasonable control and often constitute 'acts of war' or
'governmental acts' by state actors.  That said, it is in everyone's
interest for the force majeure clause to be as clear and specific as
possible, and thus to expressly identify a recognized third-party threat
that clearly is increasing in likelihood and severity.  This is similar to
the express inclusion of 'terrorism' in force majeure after 9/11: it simply
recognizes and makes explicit the current reality.  

Furthermore, we note the force majeure clause is mutual, thereby providing
protection to both the registry and registrars.  In addition, by expressly
providing that either party may suspend certain performance for a
cyberattack falling under the provision, Verisign, registrars (and
ultimately registrants) may be preventing the ill effects certain kinds of
cyberattacks may pose on their partner's/customer's systems from the failure
to quickly halt system communications. 

Third, given the increased concerns regarding cyberattacks, Verisign
believes its proposal is consistent with the current trend for force majeure
clauses, including those adopted by certain registrars and across
industries.

Verisign understands that many or most domain name registration agreements
with registrants ("Registrant Agreement(s)") currently have provisions that
protect registrars from liability in the event that Verisign or the
registrar is forced to suspend performance pursuant to the force majeure
clause by reason of a cyberattack.  For example, GoDaddy's Registrant
Agreement excludes from its service level commitments any downtime caused by
"hostile network attacks."  Many registrars further include strong
limitations of liability and disclaimers of warranties related to service
outages in their Registrant Agreements on top of broad force majeure
clauses.[1]  

Finally, most registrars preserve the right unilaterally to amend their
Registrant Agreements.  Thus, registrars have the choice to bring the force
majeure clauses in their Registrant Agreements in line with industry trends,
as some already have done, and in line with the RRA.  

[1] See e.g., Amazon Route 53 Domain Name Registration Agreement at Section
13.11 (excluding liability and compensation, reimbursement or damages
"arising in connection with (a) your inability to use the domain name
registration services, including as a result of any . . . any unanticipated
or unscheduled downtime of all or a portion of the services for any reason,
including as a result of power outages, system failures or other
interruptions.");  Google Domains Domain Name Registration Agreement at
Section 11 (noting that "Neither we nor our suppliers, warrant that the
[domain name registration] Services will be error-free or uninterrupted.")  

If you have any further questions, please feel free to contact me.

Best regards,

Pat

Patrick Kane
Senior Vice President

Verisign Naming and Directory Services
PKane at Verisign.com <mailto:PKane at Verisign.com> 

t: 703.948.3349
12061 Bluemont Way

Reston, VA  20190

 <http://www.verisigninc.com/> Verisign.com  The Manifesto of Done - Laugh
at perfection.  It's boring and keeps you from being done.

  <file:///C:/Users/pkane/AppData/Roaming/Microsoft/Signatures/logo.gif> 

From: aheineman at godaddy.com <mailto:aheineman at godaddy.com>
<aheineman at godaddy.com <mailto:aheineman at godaddy.com> > 
Sent: Thursday, December 9, 2021 2:10 PM
To: ICANN Global Support Center <globalsupport at icann.org
<mailto:globalsupport at icann.org> >; secretariat at icannregistrars.org
<mailto:secretariat at icannregistrars.org> ; rra at icann.org
<mailto:rra at icann.org> 
Cc: camia.frank at icann.org <mailto:camia.frank 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> ;
andrew.dickson at icann.org <mailto:andrew.dickson at icann.org> ;
amanda.fessenden at icann.org <mailto:amanda.fessenden at icann.org> ;
andee.hill at icann.org <mailto:andee.hill at icann.org> ; NEW GTLD
<newgtld at Verisign.com <mailto:newgtld at Verisign.com> >
Subject: [EXTERNAL] RE: RRA Amendment Notification for .net [
ref:_00D616tJk._5004MnYS1n:ref ]

Caution: This email originated from outside the organization. Do not click
links or open attachments unless you recognize the sender and know the
content is safe. 

Dear Camia and Verisign,

In regard to the .net RRA amendment, the RrSG has concerns about the changes
to the Force Majeure language in Section 6.3 and the impact it could have on
registrants.  Specifically, by including cyberattacks as a force majeure
events, registrars negatively impacted by the registry's failure to perform
will have no recourse for such events. We worry that this leaves our
customers without remedy in such a case. 

Could Verisign provide us with some additional details on the context and
intent behind this language, particularly as it applies to our concern noted
above?  

Many thanks,

Ashley Heineman

Chair, RrSG

From: ICANN Global Support Center <globalsupport at icann.org
<mailto:globalsupport at icann.org> > 
Sent: Thursday, November 18, 2021 12:11 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: camia.frank at icann.org <mailto:camia.frank 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> ;
andrew.dickson at icann.org <mailto:andrew.dickson at icann.org> ;
amanda.fessenden at icann.org <mailto:amanda.fessenden at icann.org> ;
andee.hill at icann.org <mailto:andee.hill at icann.org> ; newgtld at verisign.com
<mailto:newgtld at verisign.com> 
Subject: RRA Amendment Notification for .net [
ref:_00D616tJk._5004MnYS1n: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 Amendment for
the following TLD submitted by Verisign,  LLC to be shared with your
Stakeholder Group: 

*	.net

Please respond by 23:59 UTC on Thursday, 09 December 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

ref:_00D616tJk._5004MnYS1n:ref 

  _____  

[1] See e.g., Amazon Route 53 Domain Name Registration Agreement at Section
13.11 (excluding liability and compensation, reimbursement or damages
"arising in connection with (a) your inability to use the domain name
registration services, including as a result of any . . . any unanticipated
or unscheduled downtime of all or a portion of the services for any reason,
including as a result of power outages, system failures or other
interruptions.");  Google Domains Domain Name Registration Agreement at
Section 11 (noting that "Neither we nor our suppliers, warrant that the
[domain name registration] Services will be error-free or uninterrupted.")  

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