[Rt4-whois] Steps toward de-accreditation and sanctions

[Smith, Bill]

As best I can tell, the graduated sanctions in the current RAA are suspension and termination. Suspension requires "fundamental and material breach" and termination "failure to cure any breach within 15 days". Both are for at the "high" end of any graduated scale.

I'd like to see something at the low and mid range of a scale, and SLAs would be a way to accomplish this.

On Apr 4, 2012, at 4:01 PM, James M. Bladel wrote:

Hi Kathy:

As we discussed on today's call, the actions available to ICANN Compliance can be described in a hierarchy, with distinct "levels."  The first three levels include escalating notices / inquiries between ICANN and the contracted party.  non-response (or unsatisfactory response) results in graduating to the next level sanction.    From the Initial, Second and Final notice the communications occur in private and the contracted party is considered to be "in good standing."

After the Final notice, the next level is a Breach Letter. This is published on the ICANN Compliance website and is considered the turning point where a registrars is no longer in "good standing."  Breach letters would include specific time requirements for cure, and the next escalation would be Suspension or Termination.

I think there was a public session in Costa Rica where Maguy Serad went over these in a slide deck.  Perhaps Alice / Denise can help us locate?

The question we (RT4) should consider is:  Are these sufficiently "graduated sanctions"?  In theory, I believe this to be the case.  In practice, I know that the "white hat" registrars would never allow a situation to reach the "Breach" stage, since remaining in good standing with ICANN is a critical part of their business.

If we were to consider more "levels," we should balance the trade-off.  On the one hand, it would give Compliance more tools to go after non-compliant registrars, but if Compliance is required to exhaust one "level" of tool before moving on to the next, it could elongate the entire process.  And the only other tool that has been discussed (and currently in use with Registries) is the SLA, which would include financial penalties.  It would be interesting to see if the SLA concept could be applied to registrar WHOIS obligations, especially those involving uptime of their WHOIS systems.

Thanks--

J.



-------- Original Message --------
Subject: Steps toward de-accreditation and sanctions
From: Kathy Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>
Date: Wed, April 04, 2012 9:37 am
To: "rt4-whois at icann.org<mailto:rt4-whois at icann.org>" <rt4-whois at icann.org<mailto:rt4-whois at icann.org>>
Cc: "jbladel at godaddy.com<mailto:jbladel at godaddy.com>" <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>

Hi All,
I had the assignment on our "to do" list to "Find text on accreditation." Based on my recollection, this means returning to the 2009 Registrar Accreditation Agreement and finding any text on a more gradual path to de-accreditation for Registrars (not just an "off with your head" and termination of the contract).

Indeed, as James shared, there is a new section which we should look at. It's 2.1, under ICANN's obligations, and it allows ICANN to "suspend Registrar’s ability to create new Registered Names or initiate inbound transfers of Registered Names for one or more TLDs for up to a twelve (12) month period if (i) ICANN has given notice to Registrar of a breach that is fundamental and material to this Agreement pursuant to Subsection 5.3.4 and Registrar has not cured the breach within the period for cure prescribed by Subsection 5.3.4, or (ii) Registrar shall have been repeatedly and willfully in fundamental and material breach of its obligations at least three (3) times within any twelve (12) month period.”

That is a new and graduated sanction, so I appreciate James pointing it out.  Plus we have the de-accreditation paragraphs in Section 5 (under "termination of agreement by ICANN.")   James, is there anything further we should be looking at?

Excerpts below and attached (for easier reading).
Best,
Kathy

------------------- 2009 RAA --------------------
Excerpts of 2009 RAA
“2. ICANN OBLIGATIONS.
2.1 Accreditation. During the Term of this Agreement, Registrar is hereby accredited by ICANN to act as a registrar (including to insert and renew registration of Registered Names in the Registry Database) for the TLD(s) that are the subject of appendices to this Agreement according to Subsection 5.5. Notwithstanding the above and except in the case of a good faith disagreement concerning the interpretation of this Agreement, ICANN may, following notice to Registrar, suspend Registrar’s ability to create new Registered Names or initiate inbound transfers of Registered Names for one or more TLDs for up to a twelve (12) month period if (i) ICANN has given notice to Registrar of a breach that is fundamental and material to this Agreement pursuant to Subsection 5.3.4 and Registrar has not cured the breach within the period for cure prescribed by Subsection 5.3.4, or (ii) Registrar shall have been repeatedly and willfully in fundamental and material breach of its obligations at least three (3) times within any twelve (12) month period.”
***
"5.3 Termination of Agreement by ICANN. This Agreement may be terminated before its expiration by ICANN in any of the following circumstances:
5.3.1 There was a material misrepresentation, material inaccuracy, or materially misleading statement in Registrar's application for accreditation or any material accompanying the application.
5.3.2 Registrar:
5.3.2.1 is convicted by a court of competent jurisdiction of a felony or other serious offense related to financial activities, or is judged by a court of competent jurisdiction to have committed fraud or breach of fiduciary duty, or is the subject of a judicial determination that ICANN reasonably deems as the substantive equivalent of those offenses; or
5.3.2.2 is disciplined by the government of its domicile for conduct involving dishonesty or misuse of funds of others.
5.3.3 Any officer or director of Registrar is convicted of a felony or of a misdemeanor related to financial activities, or is judged by a court to have committed fraud or breach of fiduciary duty, or is the subject of a judicial determination that ICANN deems as the substantive equivalent of any of these; provided, such officer or director is not removed in such circumstances. Upon the execution of this agreement, Registrar shall provide ICANN with a list of the names of Registrar's directors and officers. Registrar also shall notify ICANN within thirty (30) days of any changes to its list of directors and officers.
5.3.4 Registrar fails to cure any breach of this Agreement (other than a failure to comply with a policy adopted by ICANN during the term of this Agreement as to which Registrar is seeking, or still has time to seek, review under Subsection 4.3.2 of whether a consensus is present) within fifteen (15) working days after ICANN gives Registrar notice of the breach.
5.3.5 Registrar fails to comply with a ruling granting specific performance under Subsections 5.1 and 5.6.
5.3.6 Registrar continues acting in a manner that ICANN has reasonably determined endangers the stability or operational integrity of the Internet after receiving three (3) days notice of that determination.
5.3.7 Registrar becomes bankrupt or insolvent.
This Agreement may be terminated in circumstances described in Subsections 5.3.1 - 5.3.6 above only upon fifteen (15) days written notice to Registrar (in the case of Subsection 5.3.4 occurring after Registrar's failure to cure), with Registrar being given an opportunity during that time to initiate arbitration under Subsection 5.6 to determine the appropriateness of termination under this Agreement. If Registrar acts in a manner that ICANN reasonably determines endangers the stability or operational integrity of the Internet and upon notice does not immediately cure, ICANN may suspend this Agreement for five (5) working days pending ICANN's application for more extended specific performance or injunctive relief under Subsection 5.6. This Agreement may be terminated immediately upon notice to Registrar in circumstance described in Subsection 5.3.7 above.


--




_______________________________________________
Rt4-whois mailing list
Rt4-whois at icann.org<mailto:Rt4-whois at icann.org>
https://mm.icann.org/mailman/listinfo/rt4-whois