RE: [ga] Legal Briefing

["Michael D. Palage" <michael@palage.com>]

Danny:

Not to sound like an attorney, but there is no contractual requirement that registrars or registries participate in the DNSO, or its processes. Regardless of the level of participation by either registrars or registries, such action or inaction does not waive the contractual rights contained in their contracts. Although I will work on a more detailed response to your questions below during my flight to China, I wanted to give you some quick answers.

Question 1: The Registrar Constituency hase had a sort of revolving door of representation in the Whois task force. Although Paul Kane was an initial registrar advocate we have had several representatives serving on this Task Force: Philip, Ken and Tim. Although some people may find this hard to believe, but registrars do have businesses to run and they are not always able to devote the necessary resources to play in the DNSO's policy sandbox that other people seem to have. I think Ross has been doing a good job of advocating the registrar position on the Transfer's Task Force. However, as I previously noted as the final recommendations become clearer there is a growing number of registrars expressing concern about certain recommendations. I do not believe that the registrars nor the registries are trying to force the Task Force back to square one. All I believe they are trying to do is ensure that their contractual safeguards are preserved. 

Question 2: The Executive Committee delegates the responsibilities of representing the registrars viewpoints to specific representatives. They periodically report to the constituency and the executive committee on their progress. When a final report is available it is put forth to the constituency for a vote. Unlike other constituencies that fail to delegate responsibilities to other members, I do not specifically know what has or has not been stated to the Task Forces. All I know is what has been communicated to me via email, in person meetings, teleconferences, etc. Not all communication within the registrar constituency occurs on the listserv. 

Question 3: I cannot say with certainty why registrar come to me. Maybe because I tend to listen and recommend a reasonable and prudent course of action based upon the facts and the binding contracts. Registrars and registries may chose to contact Louis because he is the general counsel of ICANN and registrars and registries have contracts with ICANN. Speaking for myself, I contacted Steve Metalitz and raised a number of concerns regarding some of the initial recommendations in an earlier Whois draft report. This was followed up with some discussions with my registry counterparts. Based upon this discussion I am writing a formal response to the Whois Task Force showing what I believe is serious fundamental flaws in the report, as well as potential recommendations for moving forward with a solution to the problem. 

I guess one of the biggest reasons why people choose not to actively participate in the DNSO processes is that there is so much noise on the task force and mailing lists, that they prefer to sit back and rely upon the contracts they entered into in good faith. The same contracts that allow them to employ people, pay rent and taxes, etc. I know this is definitely not the answer you were looking for but it is part of the reality we live in.

Best regards,

Mike






-----Original Message-----
From: DannyYounger@cs.com [mailto:DannyYounger@cs.com]
Sent: Monday, October 21, 2002 10:27 AM
To: michael@palage.com; touton@icann.org
Cc: ga@dnso.org
Subject: Re: [ga] Legal Briefing


Michael,

You are doubtless aware that I hold no particular fondness for the Task Force 
concept which serves to limit participation rather than encouraging 
participation and substantive contributions.  We again now find ourselves at 
a point where after initial recommendations have been made, those that 
haven't had a chance to participate in the policy development process now 
take issue with the recommendations studiously developed by their peers 
(bringing us back to square one).  

While you have called for the rejection of the WHOIS Task Force interim 
recommendations deeming them to be inconsistent with ICANN’s existing 
contractual obligations, a violation of ICANN’s mission and core values, in 
conflict with existing technical and market realities, and constituting a 
treat to the stability of the Internet, I would note that the registrar 
constituency does indeed have a representative assigned to the WHOIS Task 
Force, Ken Stubbs, and that I am not aware of any such issues being raised by 
Ken on the Task Force Discussion List.

This raises the following questions:

1.  Why aren't members of the registrar constituency following the policy 
development process within the TF, interacting with their 
representative-of-record on the Task Force, and instructing him to post their 
comments to the list for consideration by other stakeholders prior to the 
publication of an Interim Report?
2.  Why hasn't your representative raised such issues for discussion on the 
TF list if they indeed are of the magnitude that you describe and are of such 
great concern to the constituency?
3.  Why do your members find it necessary to go straight to either yourself 
or to ICANN staff with their complaints and concerns rather than going to 
their TF representative so that issues might be addressed in mutual 
consultation prior to arriving at what is now the Interim Report stage?

What I am seeing is more of an attempt to derail a process than to cooperate 
within the process itself.  Constantly going back to square one serves 
nobody's interests.  If the process itself is flawed, then perhaps we need to 
take another hard look at the process and consider appropriate changes before 
we again head down this profitless road, but acting to do no more than trash 
the work of others that have diligently cooperated for well over a year to 
arrive at recommendations is not the best possible way forward.

Best regards,
Danny

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