Re: [ga] Ignoring the Rules

[DannyYounger@cs.com]

Jeff,

When the transfers task force process commenced we were all keenly aware of 
the views held by the VeriSign registrar, BB Online UK Limited, Internet 
Domain Registrars, Namesecure.com and register.com.  As time went by, other 
registrars joined this particular camp:  BulkRegister.com, Go Daddy, 
NameScout, Wild West Domains, Totalnic,  joker.com and others.  Yet during 
all this time, the task force only considered a single proposal that 
represented the thinking of the numeric majority of the registrar 
constituency without affording due consideration to those within the 
constituency that held differing views (even though those others collectively 
account for more than 60% of all the registrations in the gTLD namespace).  

Over one year ago Bruce Beckwith made the following remark on the registrar 
list regarding the developing transfers document:  

"In addition, as we have stated in the past, this document should also 
address the thorny issues of setting clear definitions for many aspects of 
registrar transfers.  For example, we need to clearly define apparent 
authority, as well as how a third party could validate transfers.  There is 
also not sufficient discussion in the document on the registrar/registrant 
contract, and how/whether an ISP/reseller can act as an agent on behalf of 
the registrant, since they are not a party to the registrar/registrant 
contract (a facet of the apparent authority definition that is needed).  
Finally, it is very important that we understand that non-registrars need to 
participate in the policy-formation process for the result to have 
credibility.  Most importantly, we need to consult with registrants (i.e., 
consumers), who are the very important other half of this equation."
http://www.dnso.org/clubpublic/registrars/Arc01/msg01287.html

To date, the task force has still not fully or reasonably addressed the 
concerns raised by the VeriSign registrar.  Neither has the task force 
considered or evaluated the proposals put forth by participants such as 
register.com which covered authentication/notarization issues and topics, 
among others, such as the use/appropriateness of Registrar Lock (see 
http://www.dnso.org/clubpublic/registrars/Arc01/msg01314.html ).   

The work-product of the Task Force remains substantially incomplete, and no 
amount of dancing around the issue will hide the fact that most task force 
members have simply not been following the discussions on transfers that have 
been occurring on the registrar and public forum lists and remain largely 
unaware of the huge amount of outstanding unresolved issues.   Debate and 
discussion on the task force list has also been minimal at best with 
participation from several constituencies being limited in the extreme.  In 
part this may be blamed on the actions of your Chair that worked ever so 
diligently to exclude representatives from the registrant community.  In part 
this also may be blamed on the registrar constituency that chose to only have 
one representative on the task force, when clearly the "minority" views of 
the constituency should also have been expressed with equal vigor by another 
representative.

Jeff, I don't know why you are of the belief that it is up to any of us to 
formally "present" proposals to the task force... contrariwise, the 
obligation falls on the task force to pay attention to discussions in the 
community and to proactively gather the necessary data/commentary in order to 
reach out to those that might be impacted by a pending proposal.  Simply 
putting up an interim report on a website does not constitute necessary 
outreach, not if you actually expect to take their views into consideration.  
I am still of the view that the TF is doing no more than "going through the 
motions" and will jam through the proposal on the table simply in order to 
meet an arbitrary publication deadline.  I would like to see you extend the 
comment period for at least another full month so that counter-proposals may 
be both offered and considered prior to any final action being recommended.

One major issue that I view as still unresolved is where the proposed policy 
will live.  While you have noted that Chuck Gome's proposed policy is very 
similar to the TF recommendations, one essential difference lies in how this 
policy comes to life.  Under the VeriSign proposal, the registry is 
essentially the entity responsible for creating the language that governs the 
transfers process, and each registry in conjunction with ICANN may act to 
amend their registry contracts to impose their protocols upon the registrars. 
 No consultation with either the registrar constituency or the DNSO proper is 
required in this scenario, only ICANN's tacit agreement.  As a matter of 
prudent policy, I am not comfortable with this particular approach that can 
trump the views of all other parties in the ICANN process.  However, I am 
even more bothered by the fact that the Task Force hasn't even considered or 
evaluated the relative merits of Chuck's proposal (or for that matter any 
other policy now in place in the ccTLD community, be it the auda policies or 
those in place in .ca or elsewhere).  

If the proposed policy is expected to live within a revision to Exhibit B to 
the registry-registrar contract, then I am equally concerned that this 
unequivocally removes ICANN from the sphere of enforcement as noted by the 
language utilized in Reconsideration Decision 02-2, wherein it is stated:  
"Because the "registrar requirements" regarding transfers are not included in 
any contract enforceable by ICANN, it is not appropriate that ICANN attempt 
to enforce them."     
http://www.icann.org/committees/reconsideration/rc02-2.htm   The matter of 
who "enforces" transfers is of great concern to registrants who would not 
feel comfortable with the prospect of the VeriSign registry acting as judge 
over matters that involved their own subsidiary company, the VeriSign 
registrar.

If the proposed policy is to live within the Registrar Accreditation 
Agreement to which ICANN is indeed a signatory, then I would be a lot more at 
ease, but we still haven't resolved the issue of who is charged with the 
enforcement obligations.  If this is a matter that involves compliance with 
contracts, then why would it not be appropriate for such matters to be under 
the direct purview of the ICANN Contract Compliance Monitor, the position 
recently created in the new budget?  Further, what exactly will be the role 
of the Ombudsman in these matters?  Supposedly, the Ombudsman's office is 
charged with the resolution of grievances, and a dispute over a transfer 
certainly qualifies as a grievance.  Ultimately, the task force must 
determine what ICANN considers its role to be relative to enforcement of the 
existing contracts... has anyone on the TF taken the time to ask the ICANN 
Board what its view of this situation is?  Why rush into a proposal for  
dispute mechanisms of the kind that are proposed without first getting input 
from the Board?

It is also certainly possible for a proposed policy to live within the 
context of a registrar Code of Conduct.  This would have the effect of making 
the representations therein actionable under law.  As a matter of policy, we 
should have a self-policing industry that is guided by such Codes (unless of 
course the contracting parties prefer that we begin to lobby our local 
governments to implement "regulations" designed to reign in the rogue element 
in this industry).

Also, the concerns of the registrant community have not been fully taken into 
consideration by the task force, if at all.  We have to put up with 
horrendous verification systems, we are confronted with language issues, and 
most often we don't even know who the registrar is for our domain as many 
registrations are handled by ISPs and other resellers that don't routinely 
make the registrant aware of who the actual registrar-of-record is.  The 
proposal on the table solves none of these problems.  We have registrants 
complaining of "lost years" in the transfers process with no method to obtain 
redress of their grievances, we have rampant confusion owing to the unknown 
length of grace periods and aggravation owing to the shortness of time 
available to respond to a registrar in the transfers process.  Again, the 
proposal fails to address these issues.  We have a failure on the part of 
both ICANN and the registrars to clearly communicate the procedures and 
policies relating to transfers ,and nothing in the proposal which forces a 
registrar to clearly state the conditions for a successful transfer either on 
their websites or in their terms of service contracts.

Finally, we have registrars that create their own policies (such as "unpaid 
status") and utilize loopholes to game the process.  The proposal offers 
little comfort to those of us that understand the capacity of these rogue 
registrars to circumvent the system.  If they don't abide by the spirit of 
the rules in place now, how can you possibly expect them to abide by a new 
set of rules without some type of sanctions program as a deterrent to 
continued abusive behavior?  Sure, I know that the idea of sanctions is 
anathema to the registrar constituency, but abusive and rogue behavior 
deserves to be punished, and some of these registrars need to be slammed down 
hard.

I plan to join the conference call on transfers scheduled for November 11.  I 
encourage others to do the same.  Details may be found at 
http://www.dnso.org/clubpublic/nc-transfer/Arc00/msg00603.html
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