[Rt4-whois] Adopting Specification 4 of the AGB

[Smith, Bill]

Seth,

I agree with your analysis that certain "changes" can be made through a PDP while a given contract is in force. As I recall, those changes are limited and can be contested by the contracted parties.

I don't think there is any way ICANN can "force" an amendment or change on a contracted party at any time, even through a PDP. The contracted party is under no obligation to sign a contract it finds unacceptable and similarly is free to terminate the agreement if it finds PDP amendments unacceptable.

I think it is important that we recognize the rights, responsibilities, and authority of the various parties engaged at ICANN, and that the Board in fact has the authority to establish contract terms. No other party has that authority though we all share a responsibility for recommending modifications that are in the public interest.

Bill

On Nov 22, 2011, at 8:50 AM, Seth M Reiss wrote:

> I am wondering if the distinction being made and perhaps missed here is that
> changes to the RAA can be made mid-stream through the PDP but otherwise, a
> change can only be implemented when the term of a given RAA runs out and is
> up for renewal.  In other words, ICANN cannot force an amendment on a
> registrar until that registrar's RAA is up for renewal, but a registrar's
> obligations under the contract can be amended through a PDP because the
> current RAA states that it may.
>
>
>
> -----Original Message-----
> From: rt4-whois-bounces at icann.org [mailto:rt4-whois-bounces at icann.org] On
> Behalf Of Smith, Bill
> Sent: Tuesday, November 22, 2011 5:31 AM
> To: denise.michel at icann.org
> Cc: rt4-whois at icann.org
> Subject: Re: [Rt4-whois] Adopting Specification 4 of the AGB
>
> Denise,
>
> Thanks for the information on the various agreements and how ICANN, the
> .org, recommends changes to those agreements. I think these processes are
> useful and consistent with the multi-stakeholder model, but I have yet to
> see anything in the Bylaws or any policy document that requires contract
> changes through a PDP or any other "community process".
>
> Perhaps I am making to fine a point of this, but I consider it an important
> one, and that is that only the Board has the authority to enter into
> contracts. It may delegate that authority, typically for the purposes of
> negotiation and expedited execution. Further, in the case of ICANN, the
> corporation, it has a responsibility to enter into contracts that are in the
> public interest (writ large).
>
> Bill
>
> On Nov 21, 2011, at 11:18 AM, Denise Michel wrote:
>
> James - I'd be happy to contribute to this discussion.
>
> All -
>
> There are multiple ways to change the Registrar Accreditation Agreement
> (RAA) and the various Registry agreements (see current list at
> <http://www.icann.org/en/registries/agreements.htm>).
>
> The RAA can be changed through the GNSO's policy development process (PDP)
> and through contract-based options. (See attached Policy Staff paper I sent
> a few weeks ago that details these processes; different issues and processes
> yield different results -- e.g. immediate mandatory change, change upon
> contract renewal, etc.).  RAA changes are posted for public comment and
> approved by the Board.
>
> The existing gTLD Registries are governed by the individual Registry or
> Sponsorship Agreements (linked above).  Staff works with the individual gTLD
> Registry to review and change the provisions of their Registry or
> Sponsorship Agreement. Changes are posted for public comment and ultimately
> approved by the Board.  There also is precedent for a PDP aimed at changes
> to existing registry contracts (see
> <http://gnso.icann.org/issues/gtld-policies/>), but this is the exception.
> In addition, a Registry may file an RSEP application to add a new service
> (and change its contract) (information on this is posted at
> <http://www.icann.org/en/registries/rsep/>).  Finally, as you've discussed,
> the Applicant Guidebook contains obligations that will be incorporated in
> new gTLD registry agreements.
>
> Please let me know if you need more information.
>
> Regards,
> Denise
>
> On Thursday, November 17, 2011, James M. Bladel
> <jbladel at godaddy.com<mailto:jbladel at godaddy.com>> wrote:
>> I don't think I'm covering this topic adequately.  Denise, perhaps you
> could weigh in on Bill's questions?
>>
>> J.
>>
>> -------- Original Message --------
>> Subject: Re: [Rt4-whois] Adopting Specification 4 of the AGB
>> From: "Smith, Bill"
> <bill.smith at paypal-inc.com<mailto:bill.smith at paypal-inc.com>>
>> Date: Thu, November 17, 2011 2:56 pm
>> To: "James M. Bladel" <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>
>> Cc: Susan Kawaguchi <susank at fb.com<mailto:susank at fb.com>>,
> "rt4-whois at icann.org<mailto:rt4-whois at icann.org>"
>> <rt4-whois at icann.org<mailto:rt4-whois at icann.org>>
>>
>> James,
>>
>> Thanks for the quick reply.
>>
>> Sorry to be slow, but I still don't see where "contract modification"
> requires a PDP (and Issues Report, etc.). The section you referenced
> describes how new specifications and policies are developed, not how
> contracts are amended.
>>
>> As best I can tell, it's up to the ICANN Board to make the determination
> on contract language.
>>
>> Bill
>>
>> On Nov 17, 2011, at 12:42 PM, James M. Bladel wrote:
>>
>> Bill:
>>
>> This is described in Section 4 of the RAA. Here's a quick link:
> http://www.icann.org/en/registrars/ra-agreement-21may09-en.htm#4
>>
>>
>> J.
>>
>> -------- Original Message --------
>> Subject: Re: [Rt4-whois] Adopting Specification 4 of the AGB
>> From: "Smith, Bill"
> <bill.smith at paypal-inc.com<mailto:bill.smith at paypal-inc.com>><http://bill.sm
> ith at paypal-inc.com/>&gt;
>> Date: Thu, November 17, 2011 2:38 pm
>> To: "James M. Bladel"
> <jbladel at godaddy.com<mailto:jbladel at godaddy.com>><mailto:jbladel at godaddy.com
> <mailto:jbladel at godaddy.com>>>
>> Cc: Susan Kawaguchi
> <susank at fb.com<mailto:susank at fb.com>><mailto:susank at fb.com<mailto:susank at fb.
> com>>>,
> "rt4-whois at icann.org<mailto:rt4-whois at icann.org><mailto:rt4-whois at icann.org<
> mailto:rt4-whois at icann.org>>"
>>
> <rt4-whois at icann.org<mailto:rt4-whois at icann.org>><mailto:rt4-whois at icann.org
> <mailto:rt4-whois at icann.org>>>
>>
>> James,
>>
>> I agree on the need for consensus re our recommendations.
>>
>> Could you point me to the language that says the only way to modify a
> Contracted Party contract is through the PDP. I haven't been able to locate
> that in the Bylaws or the GNSO PDP. I'm sure it's somewhere but I can't find
> the policy or process document that states this.
>>
>> Bill
>>
>> On Nov 17, 2011, at 10:46 AM, James M. Bladel wrote:
>>
>> Hi folks:
>>
>> Reading this thread (and reflecting on the work Susan and I are doing
> w.r.t. Proxy services), I am reminded of the limited nature of this Review
> Team in making its recommendations. Like my favorite game show "Jeopardy,"
> it's not enough to have the correct answer. The format of the response (in
> our case, recommendation) is equally important.
>>
>> Bearing this in mind, I submit that recommendations should include the
> following elements:
>> (1) Target (To whom are we directing the recommendation?)
>> (2) Mechanism (By what means will the recommended action be implemented?)
>> (3) Timeframe (What is the deadline for action? Note that in ICANN as well
> as the general world, if something is left open-ended, it will never be
> completed.)
>> (4) Communication, Measurement & Follow-up (Was implementation complete?
> Did it work? What can the next WHOIS RT take away from it?)
>>
>> Note that if we are describing actions that would create new obligations
> for Contracted Parties (Registries & Registrars), we must reference the GNSO
> Policy Development Process (PDP, Annex A in the ICANN Bylaws) as part of our
> recommendation, the first step of which is requesting an Issues Report. This
> is the only way to create new obligations for contracted parties.
>>
>> So, instead of:
>> "Registrars should fix Problem X."
>>
>> A proper recommendation might look like:
>> "No later than Jul 2012, the ICANN Board should request a PDP Issues
> Report to examine the potential actions Registrars can take to address
> Problem X."
>>
>> Also want to re-iterate that divided recommendations will most likely die
> on the table when presented to the Board. To ensure that each and every
> recommendation becomes reality, we must be unanimous in our presentation. If
> we aren't there yet with some of our recs, then we have to walk them back
> together until we can find middle ground (similar to what Susan and I are
> doing w.r.t. Proxy).
>>
>> Thanks--
>>
>> J.
>>
>> Subject: Re: [Rt4-whois] FW: Adopting Specification 4 of the AGB
>> From: Susan Kawaguchi
> <susank at fb.com<mailto:susank at fb.com>><mailto:susank at fb.com<mailto:susank at fb.
> com>>><mailto:susank at fb.com<mailto:susank at fb.com>><http://susank@fb.com/>>&g
> t;
>> Date: Thu, November 17, 2011 12:00 pm
>> To: Kathy Kleiman
> <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>><mailto:kathy at kathykl
> eiman.com<mailto:kathy at kathykleiman.com>>><mailto:kathy at kathykleiman.com<mai
> lto:kathy at kathykleiman.com>><http://kathy@kathykleiman.com/>>&gt;,
>>
> "rt4-whois at icann.org<mailto:rt4-whois at icann.org><mailto:rt4-whois at icann.org<
> mailto:rt4-whois at icann.org>><mailto:rt4-whois at icann.org<mailto:rt4-whois at ica
> nn.org>><http://rt4-whois@icann.org/>&gt;"
> <rt4-whois at icann.org<mailto:rt4-whois at icann.org>><mailto:rt4-whois at icann.org
> <mailto:rt4-whois at icann.org>>><mailto:rt4-whois at icann.org<mailto:rt4-whois at i
> cann.org>><http://rt4-whois@icann.org/>>&gt;
>>
>> Hi Kathy,
>>
>> Please see my comments below.
>> From: Kathy Kleiman
> [mailto:kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>]
>> Sent: Thursday, November 17, 2011 6:56 AM
>> To:
> rt4-whois at icann.org<mailto:rt4-whois at icann.org><mailto:rt4-whois at icann.org<m
> ailto:rt4-whois at icann.org>><mailto:rt4-whois at icann.org<mailto:rt4-whois at ican
> n.org>><http://rt4-whois@icann.org/>&gt;; Susan Kawaguchi
>> Subject: Re: [Rt4-whois] FW: Adopting Specification 4 of the AGB
>>
>> Dear Susan,
>> I understand your desire to see a Thick Whois Model imposed across the
> board. Watching the users on the video we watched in MDR struggle with the
> searches was painful. Knowing that you struggle with this issue every day is
> even worse.
>>
>> However, adopting the Applicant Guidebook provisions for New Registries I
> don't see as being the right answer. In part, because it raises as many
> questions as it answers, and it may pose instability to the Net. If your
> assertion is true then we obviously have much bigger issues to deal with but
> I have followed the new gTld process from the very beginning, through all
> the versions and discussions of the AGB, had internal technical people
> evaluate the processes ICANN is advocating and have never heard a concern
> that Specification 4 would cause instability to the internet.
>>
>> To expand: As we have discussed, in the early days, the functions of
> Registry and Registrar were not separate and Network Solutions both managed
> the database for .COM, .ORG and NET, and also registered domain names into
> it.
>>
>> In 1999, I believe, ICANN introduced the first bit of competition, 4
> registrars to register domain names into the new gTLDs. As more competition
> in the registrar business came in (considered a hallmark of ICANN's work to
> introduce competition into the domain name space), the registrars began
> banging on Network Solutions, then owned by SAIC, then purchased by
> Verisign, to stop their compete ownership and control of the Whois
> information. It was an element of the competitive nature of the new domain
> name space to break up the information so one registry would not own and
> control it all. Completely understand the history but the need to create
> competition within the registrar space is no longer an issue. What we are
> facing now is a real need for the internet consumer to be able to easily
> look up a domain name registration. Whether that is converting the .com and
> .net registries to a Thick Whois model or ICANN creating a centralized WHOIS
> data base by collecting all the WHOIS !
> information from each registrar I could advocate for either option. (I
> think Lutz is drafting a proposal for this option) If the team does not
> address this issue, in my mind, we have not done our job. It is crucial that
> the information for a domain name is available and accurate (privacy and
> proxy registrations aside as that is still viable WHOIS information).
>>
>> The key concern was, of course, .COM. And these issues, and the real
> concern of this largest of the registry database, now numbering almost 100
> million names (Oct 2011), would control the customer data and be able to
> bypass the new registrars and compete directly for the registration
> business, as well as creating a series of additional business functions.
> It's an enormous set of competitive data (as we heard from the Registrars in
> the Registry/Registrar meeting in Singapore with us) Registrars remain very
> committed to this model, and for legitimate reasons. This is a redherring.
> There are many ways that they all collect competitive data and having one
> source that is accurate, available and searchable would benefit the internet
> consumers in general and not the smaller segment of just registrars or
> registries .
>>
>> Further, the danger of converting a 100 million database is enormous. When
> the Public Interest Registry took over the .ORG contract (after competitive
> applications), among the first things it had to do was convert the ORG
> registrations to thick ones. There were only a few million registrations at
> the time and it was still an enormous and delicate task. It was a huge
> moment. I understand for a small company transitioning databases can be
> harrowing but Verisign is a well funded, large organization and well
> equipped to scope out the process before hand and put all the necessary
> safeguards in place. Truly 100 million records is not that significant any
> more when you look at the large internet companies and how many users or
> accounts that are created every day.
>>
>> Such a change, now to the enormous .COM database, is not an easy one to
> think about. Every major company in the world has a .COM registration. These
> websites are 24*7 operations. The risk to the Security & Stability of the
> Net would be one to study closely and carefully. The difficulties, not to
> mention risks and liabilities, would be enormous. The Thin Whois database
> could continue to exist to address any identified issues with security and
> stability of the internet. I am fine with the requirement to run both Thick
> and Thin. The ICANN centralized database proposal would essentially do that.
>>
>> Is there something we can do, within the confines of our mandate and our
> fact-based research and assessment. Yes, I really think there are.
>>
>> We have some key things we have agreed to:
>> 1) Findability - thin registration data should be findable. That's a
> technical issue (broken links) and an educational issue (what's a thin
> Whois, or better yet, how to I find .COM data). On education, there is much
> we can do to educate and help Law Enforcement and Fraud Investigators
> (public and private) to find the data we need. Let's include some
> recommendations on these. I have never had an issue (to date) with finding
> Thin registration data. Verisign data is always available and probably
> always accurate. But it is not enough data. We need the THICK WHOIS data to
> protect the internet consumer.
>> 2) Access & Accuracy - as we have already been discussing and which are
> key.
>>
>> One thing we could do (and it will make us few friends) is to throw this
> kettle of fish into the hands of the registries and registrars on a
> timeframe, e.g., six months or one year, for their solutions and
> recommendations. They, together with the Community which must review and
> accept their solutions, must move quickly. Without specific recommendations
> and ( I agree with you) a specific time frame I do not have any faith in
> solving this issue.
>> I do agree that we should not get to deep into the details but if we do
> not provide clear findings and actionable recommendations I fear we will be
> arguing about this for the next decade.
>>
>>
>> But I don't think we can mandate a specific answer.
>> Best,
>> Kathy
>>
>>
>>
>>
>>
>> :
>> Just realized that I did not attach the document to this email last week.
>>
>> From: Susan Kawaguchi
>> Sent: Tuesday, November 08, 2011 11:13 PM
>> To:
> rt4-whois at icann.org<mailto:rt4-whois at icann.org><mailto:rt4-whois at icann.org<m
> ailto:rt4-whois at icann.org>><mailto:rt4-whois at icann.org<mailto:rt4-whois at ican
> n.org>><http://rt4-whois@icann.org/>&gt;
>> Subject: Adopting Specification 4 of the AGB
>>
>> Attached is a draft of recommendations for adopting Specification 4 of the
> AGB for existing gTlds.
>>
>> At the end of the document are rough thoughts on ICANN creating a
> voluntary program for registrars to be considered A list registrars. This
> would recognize the responsible registars and the proactive service they
> provide.
>>
>> I will not be on the call tonight since it is 3 am my time. Not sure
> anything I would say would make any sense.
>>
>> Susan Kawaguchi
>> Domain Name Manager
>>
>> Facebook Inc.
>> 1601 California Avenue
>> Palo Alto, CA
>>
>> Phone - 650 485-6064<tel:650%20485-6064>
>> Cell - 650 387 3904<tel:650%20387%203904>
>>
>> Please note my email address has changed to
> skawaguchi at fb.com<mailto:skawaguchi at fb.com><mailto:skawaguchi at fb.com<mailto:
> skawaguchi at fb.com>><mailto:skawaguchi at fb.com<mailto:skawaguchi at fb.com>><http
> ://skawaguchi at fb.com/>&gt;
>> NOTICE: This email (including any attachments) may contain information
> that is private, confidential, or protected by attorney-client or other
> privilege. Unless you are the intended recipient, you may not use, copy, or
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>>
>>
>>
>>
>>
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>>
>>
>>
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