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

Mon Apr 9 16:14:08 UTC 2012

Compliance's Costa Rica slides are linked here:
http://costarica43.icann.org/node/29521

Slide 8 shows the enforcement process.

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

On Wed, Apr 4, 2012 at 4:01 PM, James M. Bladel <jbladel at godaddy.com> 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>
> Date: Wed, April 04, 2012 9:37 am
> To: "rt4-whois at icann.org" <rt4-whois at icann.org>
> Cc: "jbladel at godaddy.com" <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.
>
> --
>
>
>
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