[registrars] Outstanding issues on Registrar Transfers

["Elana Broitman" <ebroitman@register.com>]

In view of the many emails, such as from Larry, Bhavin, and Bruce regarding
the transfer policies, it appears that there remain some significant
outstanding issues for the transfer process.  It raises the question of
agreeing on a document before dealing with these significant issues that may
change the transfer principles.  I want to raise that as a question ahead of
the Tuesday call.  I also want to resend the list of issues that I thought
remained outside the document, below.
Regards, Elana


1)	Definition of individual who has the apparent authority to legally bind
the Registered Name holder.

The Registry Agreement and ICANN's statements do not clarify this term.
Yet, it is often the crux of the issue and there is often a difference among
registrars regarding the definition of "apparent authority."  Some
registrars consider only the registrant or administrative contact to be
authoritative. Others may allow billing, technical, or other contacts to
serve as authorized representatives for the purpose of granting apparent
authority.  Yet others allow resellers to provide apparent authority.  We
could draft a list of authorized contacts, but that runs the risk of
unnecessarily limiting some registrar's legitimate definition or business
model.

However, there clearly needs to be some standard, so that we do not have a
situation where conflicting transfer instructions are sent on behalf of a
registrant. Just as the IRDX document has a procedure pursuant to which a
gaining registrar refers to the Whois of the losing registrar in order to
verify a transfer request, similarly the gaining registrar must refer to the
apparent authority recognized by the losing registrar in the initial
registration process in order to obtain authorization for the transfer.  In
other words, if an admin contact was the apparent authority during
registration, then the individual holding that position should authorize the
transfer or at the very least authorize the new "authority."  This would
allow for an objective standard while retaining flexibility.

RECOMMEND: "apparent authority, as defined by the Losing Registrar's
practices"


2)	Process for Transfers initiated by Indirect Partners of Gaining
Registrars.

The current IRDX document allows for only 2 processes - paper and email -
both of which rely on a direct channel from the registrar to the registrant.
This WOULD NOT allow  indirect partners to initiate or process transfer
requests.  Yet, there is no reason to stifle this business model currently
used by many registrars, as long as appropriate protections and
documentation are in place.

RECOMMEND: Include process for transfers going through indirect channels,
and require such processes to be authorized using the same documentation as
the direct channel + evidence of a contract between the indirect partner and
the registrar that obligates the indirect partner to adhere to the same
minimum standards.


3)	Gaining Registrar transferring domain names back to the Losing Registrar
in a case where it has been demonstrated that the Gaining Registrar did not
act in accordance with the practices and processes contemplated by this
document.  Gaining Registrar's indemnification of the Losing Registrar
against legal recourse in such cases.

This is a matter of making all parties whole after erroneous transactions.
If registrars are to trust each other's processes so that they make changes
without requiring confirmation by their customers, they and their customers
must be made whole if transfers were not authorized. A gaining registrar
that initiated and completed the transfer of a domain name without proper
authorization must transfer the name back, and indemnify the losing
registrar against any potential liability associated with this transaction.
This entire exercise is about instilling trust in transfer processes such
that registrars can essentially "take each other's word for it."  If a
registrar fails that test, and is not providing for consumer protection,
other registrars must be able expeditiously to return to checking with their
registrants, at least until confidence is regained.

RECOMMEND:  In cases of erroneous or unauthorized transfers, Gaining
Registrar transfers domain name back to Losing Registrar and indemnifies
such registrar against any potential liability.

4)	Appropriateness of Registrar Lock.

Some registrars have a business model of "locking down" their customers'
domain names - in other words, automatically nacking all transfers for such
domain names without checking with the registrant.  Some registrars may do
this only upon request by customers; others may institute such a policy
automatically for all customers.  The "lock down" policy is clearly at odds
with one of the fundamental principles motivating this document - to promote
market choice.

RECOMMEND: We must consider and institute the appropriate benchmarks for
"locks."


5)	A requirement to authenticate or notarize some, or all, of the transfer
documentation procured by the Gaining Registrar.

Contracts - particularly between companies - are often authenticated.  It is
not always necessary to use a notary public, but it does provide an
important lawyer of security to rely on authentication authorities,
particularly if the issue of "apparent authority" is unclear.

RECOMMEND: Written contracts to be authenticated (e.g., in the US this could
mean notarized).