RE: [ga] By-passing the DNSO

[Jonathan Weinberg <weinberg@mail.msen.com>]

         I don't understand Danny to be saying that the DNSO should be 
involved in the application of individual sanctions.  Rather, he is 
objecting to a provision contemplating that the overall rules governing the 
sanctions program can be overhauled, wholesale, without DNSO 
participation.  The provision is consistent with the apparent view of ICANN 
staff that questions such as whether there should be a sanction program, 
how it should be constructed, what it should look like, etc., have no 
policy content.  That position seems to me, though, rather hard to 
defend.  I'm not sure, Chuck, whether your derisive dismissal of Danny's 
comment is because:
[1] you think it's absurd to believe that such questions (whether there 
should be a sanctions program, how it should be constructed, what it should 
look like, etc.) have policy content;
[2] you think that such questions have policy content, but you think it's 
absurd to believe that the DNSO should be involved in the process of 
changing those policy decisions; or
[3] you're just mischaracterizing his post.

Jon



At 11:12 AM 4/27/2001 -0400, Gomes, Chuck wrote:
>To suggest that the DNSO should be involved in the sanctions program is
>ABSURD.  Somewhere along the line it would be nice if some sort of
>"reasonable business sense" existed.  But maybe that is asking too much.
>
>Chuck
>
>-----Original Message-----
>From: babybows.com [mailto:webmaster@babybows.com]
>Sent: Friday, April 27, 2001 10:19 AM
>To: ga@dnso.org
>Subject: [ga] By-passing the DNSO
>
>
>In a new paragraph added to the Proposed Unsponsored TLD Agreement (3.5.6.)
>which matches the language in the Verisign agreement, the ICANN Staff has
>introduced a provision regarding changes to the proposed "Sanctions Program"
>that effectively eviscerates the policy-recommending role of the DNSO:
>
>"In the event that the gTLD Constituency of the Domain Name Supporting
>Organization proposes a substitute Appendix Y at any time prior to 1 May
>2002, and ICANN determines (following an appropriate process of public
>notice and comment) that substitution by that Appendix Y would serve the
>interests of the Internet community, the substitution shall be made."
>
>This sanctions program (appendix Y) deals with violations of Subsections
>3.5.1 through 3.5.5 and Appendix H (certification and separation
>requirements) and Appendix I (Registry Operator's Code of Conduct) of the
>Registry Agreement.  This action to deny the role of the DNSO (supplanting
>it with the role of the gTLD constituency), is akin to allowing the fox to
>propose new rules regarding its own distance and conduct with respect to the
>hen-house.
>
>The "Sanctions Program" also calls for a "Confidential Notice of
>Investigation", which to my view subverts the concept of open public
>evaluation of charges of abuse; this bears further consideration.
>
>Details of proposed sanctions are as follows:
>
>"Sanctions of up to US$10,000 for each violation may be assessed for each
>minor violation found and sanctions of up to US$100,000 for each violation
>may be assessed for each major violation found. The amount of the financial
>sanction shall be proportionate to the violation and other relevant facts."
>
>This "fixed scale" of sanctions effectively allows giant well-financed
>corporations to sustain multiple violations of conduct with relative
>impunity as they can well afford the cost of such fee assessments.  A
>"proportionate scale" tied to the relative size of the registry might be a
>more reasonable consideration.
>
>In the last round of discussions on the Verisign agreement, the DNSO was
>played like a fish on a hook; it was specifically asked for comments to
>focus on the "substantive merits" of the agreements, which then allowed
>Stuart Lynn to make the following comment to the Department of Commerce:
>
>"As this recitation indicates, the ultimate Names Council recommendations to
>ICANN are, in general, not focused on "policy" issues, but rather are
>suggestions about how the proposed new agreements could be modified, by
>changing contractual dates and the like, to make them better agreements in
>the view of those supporting the resolutions. These expressions are
>certainly important, but they can hardly be described as representing the
>kinds of policy issues that are, pursuant to ICANN's bylaws, the initial
>responsibility of the DNSO within the ICANN structure."
>
>We must take a hard look at the policy implications within these proposed
>agreements and argue primarily on the basis of policy.
>
>Sanctions are a punitive enforcement mechanism.  The degree to which
>violations must be met with punishment is a matter of consensus-based
>policy.  There are six other constituencies, as well as unrepresented
>members of the general public, that have a stake in reigning in potentially
>abusive registry conduct.  The DNSO should not be by-passed in this process.
>
>
>
>
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