[ga] Legal Briefing

[DannyYounger@cs.com]

Dear Louis, 

In your "Briefing Concerning Implementation of Policies by Registrars and 
Registry Operators" you wrote:

"Several of the registrars and registry operators have expressed alarm 
concerning the effect that these proposed requirements would have on their 
operations, and have indicated that they presently oppose some of the 
requirements being considered."

also,

"Many of the policy proposals in the interim reports of the Transfers and 
Whois Task Forces contemplate implementation by registrars and registry 
operators, yet many of those entities have expressed strong opposition to 
them. If these proposals are intended to be adopted as ICANN policies that 
will be binding on registrars or registry operators, it is necessary, for the 
reasons outlined here, to proceed in a manner that addresses the reasoned 
objections and concerns of these entities."

Having followed both constituency list and Task Force discussions on 
transfers and WHOIS over the course of the last year, I have not noted the 
"strong opposition" on these lists to proposed policies that you have cited, 
nor opposition on the part of "many of those entities".  Similarly, no 
expressions of "alarm" have been raised within the formal policy-development 
venues, and there have been no comments posted "on the record" through 
constituency representatives directly to these venues nor through the open 
conference call opportunities provided by the Task Forces that would indicate 
such strong present opposition and reasoned objections to some of the 
requirements being considered. 

To the same degree that registrars and registry operators seek protections 
that ensure that the environment under which they operate is predictable, so 
too do other stakeholders seek predictability in the policy development 
process.  So far the only thing that has been predictable is the fact that 
certain entities, rather than fully participating in the policy development 
process and making their sentiments known therein, seek to thwart the process 
by deliberately withholding their input (knowing that they can run to Staff 
at the last minute to bitch and moan and cut a deal).

I take issue with Staff countenancing this type of behavior.  We have an 
obligation as a Corporation to protect against abuse of the policy 
development process.  We are entitled to predictability.  Even the 
Reconsideration Committee will dismiss requests "where the affected party had 
an opportunity, but was unwilling, to participate in the public comment 
period relating to the contested action".  

I would ask you to specifically identify the entities that have flagged such 
concerns so that discussions may be held on the record and in full public 
view with these parties.

Best regards,
Danny Younger



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