[Rt4-whois] Adopting Specification 4 of the AGB

Denise Michel denise.michel at icann.org
Tue Nov 22 22:25:43 UTC 2011 

Dear Team members,

For the sake of completeness and full understanding, here's more detail on
how RAA changes can be "immediately implemented" (regardless of where
registrars are in their agreement term), as well as the circumstances under
which other implementation actions would apply. (This is synthesized from
information Staff provided to the GSNO).

This is a complex area (not easy to grasp). I can arrange for a briefing by
Staff if there's a need/interest. Just let me know.

Regards,
Denise

Denise Michel
ICANN
Advisor to the President & CEO
denise.michel at icann.org
+1.408.429.3072 mobile
+1.310.578.8632 direct


   - Negotiating the new form of RAA is effective on the renewal, absent
   early adoption through incentives.


   - Consensus policy issues (advanced through the policy development
   process) are effective immediately upon adoption (by the GNSO and Board).


   - If the new form of RAA is produced through a PDP, and the topics are
   within the picket fence,  then the new form could be adopted immediately.


   - In the context of WHOIS,  since it’s in the picket fence, these would
   be effective immediately upon adoption if done through the PDP.


   - If the goal is for immediate adoption without a PDP, other options
   include:


   - Including them in the Code of Conduct referenced in the RAA, which is
      effective immediately.   This could be done as a temporary fix until the
      renewal of the RAA kicks in.


   - Making it part of the new gTLD Program, by either:


   - Making it part of the registry-registrar agreement;


   - Including it in the appendix that is signed by registrars whenever it
         adds a new gTLD to be approved; or


   - Having a new RAA just for new gLTDs.



On Tue, Nov 22, 2011 at 9:23 AM, James M. Bladel <jbladel at godaddy.com>
wrote:
>
> Seth and Team:
>
> That's somewhat correct, except that there is no given "term" for the
RAA.  Registrars are signing and renewing throughout the year, so everyone
has a different term remaining.
> However, if there were a change to the RAA, registrars would either (a)
sign it at the end of their existing term (maximum 5 years) or (b) be
incentivized to renew early.  Option (b) was fairly effective in promoting
adoption of the 2009 RAA, with the incentive being a slight reduction in
registration-level fees.
> J.
>
> -------- Original Message --------
> Subject: Re: [Rt4-whois] Adopting Specification 4 of the AGB
> From: "Seth M Reiss" <seth.reiss at lex-ip.com>
> Date: Tue, November 22, 2011 10:50 am
> To: "'Smith, Bill'" <bill.smith at paypal-inc.com>,
> <denise.michel at icann.org>
> Cc: rt4-whois at icann.org
>
> 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&gt;).
>
> 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/&gt;), 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/&gt;). 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
> retransmit the email or its contents.
> >
> >
> >
> >
> >
> > _______________________________________________
> >
> > Rt4-whois mailing list
> >
> >
> 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;
> >
> > https://mm.icann.org/mailman/listinfo/rt4-whois
> >
> >
> >
> >
> > --
> >
> >
> >
> >
> >
> > ________________________________
> > _______________________________________________
> > Rt4-whois mailing list
> >
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