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Re: [ga] Ignoring the Rules
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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