[NCSG-Discuss] Registrar Accreditation Agreement (RAA) draft published
Robin Gross
robin at IPJUSTICE.ORG
Fri Mar 8 22:22:04 CET 2013
Thank you, Wendy. I do believe the community will find wide
agreement that staff is going too far with this latest power grab and
the trend it represents. Ex-GNSO Chair Stephane Van Gelder just
published an article on Circle ID on ICANN's mishandling of the issue...
http://www.circleid.com/posts/
20130308_mishandling_the_registrar_contract_negotiations/
Mishandling the Registrar Contract Negotiations
By publishing a draft Registrar Accreditation Agreement (RAA) for
public comment before it has been agreed on by both parties, has
ICANN dealt the bottom-up multi-stakeholder model a blow?
ICANN Staff and the registrars have been negotiating a new version of
the RAA for the past 18 months following requests by Law Enforcement
Agencies (LEA) such as Interpol for greater consumer protection.
With both ICANN and registrars working hard, by early this year
agreement had been reached on 11.5 of the 12 LEA "asks"
A deal looked close.
Then at the last minute, ICANN threw extras at the proposed RAA,
including an extraordinary provision for the ICANN Board to be able
to force unilateral changes into the RAA at any time.
Imagine signing a contract with someone where that person can change
the contract at any time, without your input, and you are bound by
those changes. Crazy, right? Even crazier in the ICANN world, built
as it is on the premise of bottom-up consensus, not top-down "we'll
change your contract when we damn well feel like it" tactics.
Here's one we prepared earlier
Still, disagreement in negotiations is no big deal. Surely all both
sides have to do is simply continue talking and try to iron them out,
right?
Wrong when one side tries to push its way forward by publishing a
draft agreement and portraying it as the result of these
negotiations, even though that's clearly not the case and the other
side has asked this not to be done.
This is what's happened today, with ICANN putting the current draft
RAA out for public comment. "Given the agreement in principle over so
many areas, there were two paths forward: continue negotiations to
address points that have been raised multiple times by each side, or
put the agreement out to the community now for public input on the
finalization of the agreement," says ICANN in a statement issued with
the draft RAA. "After the long period of negotiations, as well as the
import of the 2013 RAA to the New gTLD Program, ICANN feels that it
is very important to take the RAA proposal to the community."
At least no-one can accuse ICANN of not saying it like it is!
The registrars have put out their own statement decrying the way
ICANN has handled this. "All of the items that have been agreed to
over the past 18 months would, by themselves, produce an RAA that is
vastly improved over the current 2009 version. Nearly all of the Law
Enforcement requests that were endorsed by the GAC have been
included, as well as the major items that were requested by the GNSO.
That RAA would bring registrant verification. That RAA would bring
enhanced compliance tools. Registrars must emphasize that the key
differences between that RAA and the one currently proposed by ICANN
are not issues raised by Law Enforcement, GAC or the GNSO but by
ICANN staff (underlined in the original statement)."
Cart, horse, in that order
It appears staff have been driven to put the cart before the horse by
Fadi Chehadé's desire to wrap the RAA issue up.
Chehadé named the RAA as one of his key deliverables when he formally
took office late last year. Since then, he has surprised the
community by introducing new requirements in the contract new gTLD
registries will have to sign. Among them, the obligation to only use
registrars that have signed the 2013 RAA. In other words, under
Chehadé's instructions, ICANN is attempting to tie down new gTLD
operators to a registrar contract that is still being negotiated.
No wonder Chehadé wants these negotiations done sooner rather than
later. Registrars feel this "surprise announcement that all new gTLD
registries must only use registrars that have signed the 2013 RAA" is
nothing more than "a transparent effort by ICANN to arbitrarily link
the new gTLD program to the outcome of RAA negotiations." If enacted,
they fear the requirement would create separate classes of
registrars. "This is unprecedented in the DNS industry," they say.
"There can and must be only one meaning of 'ICANN-Accredited'".
Worse than this, registrars feel the attempt by ICANN to give its
Board power to unilaterally amend the RAA could affect the multi-
stakeholder model as a whole.
"ICANN insisted on including a proposed Revocation (or "blow up")
Clause that would have given them the ability to unilaterally
terminate all registrar accreditations," registrars explain in their
statement. "After major pushback, ICANN staff relented and in its
place proposed giving the ICANN Board the ability to unilaterally
amend the RAA. This is identical to what ICANN inserted into the
proposed new gTLD registry agreement — a clause met with strong
opposition not only from the Registry Stakeholder Group but from the
broader ICANN community."
So this is the real blow-up clause. "The effect of such a clause in
the primary agreements between ICANN and its commercial stakeholders
would be devastating to the bottom-up, multi-stakeholder model," the
registrars argue. "First, it will effectively mean the end of the
GNSO's PDP, as the Board will become the central arena for all
controversial issues, not the community. Second, it creates an
imbalance of authority in the ICANN model, with no limits on the
scope or frequency of unilateral amendments, and no protections for
registrars and more important registrants."
Red alert
I founded and ran a registrar for more than a decade. Today, as a
consultant to the domain industry, I represent a registrar (NetNames)
in the Registrar Stakeholder Group. Clearly, I am biased towards the
registrar point of view in this debate, and this is probably the way
some will read this article.
But others know I am first and foremost a passionate defender of the
multi-stakeholder model.
Through 2 years of chairing the GNSO (up until last October) I always
sought to defend that ideal when it was put under pressure.
And since stepping down as Chair and getting my voice back, when the
model is attacked I have spoken out to defend it. When Chehadé
launched headfirst into the Trademark Clearinghouse discussions, I
warned of the dangers of this approach and was impressed when he
later recognised he may have been a little too hasty.
With what is happening now on the RAA, isn't it time to sound the
alarm bells once again? Chehadé seems to be adopting a "Janus
approach" to solving ICANN issues. Publicly, he is engaging,
energetic and I have gone on the record saying how much good I think
the new CEO is doing ICANN's image worldwide.
But in his more direct dealings with ICANN's constituencies, Chehadé
seems to think that the end justifies trampling the model.
Sure ICANN has its problems and sure everyone can only welcome a
determined leadership approach to solving them, but for the unique
governance experiment that is ICANN, this bidirectional approach
risks making the cure look worse than the disease.
On Mar 8, 2013, at 12:54 PM, Wendy Seltzer wrote:
> I seconded Jeff Neuman's request that we discuss this on the Council's
> agenda next week. NCSG might also want to ask for a briefing from
> ICANN
> staff -- and from the Registrars -- to answer questions we might
> have in
> preparing for public comments.
>
> --Wendy
>
> On 03/08/2013 11:11 AM, Robin Gross wrote:
>> Thanks, Mary, I just saw the Registrars statement on this issue this
>> morning and was pretty shocked by ICANN's latest move toward
>> unilateralism (a very troubling trend) with staff's brand new RAA
>> demands at this late hour. ICANN has been moving away from
>> "bottom up"
>> multistakeholderism at the same time that it trumpets such a model at
>> the ITU and elsewhere. ICANN staff/board can't continue to claim
>> ICANN
>> is bottom-up while it reserves for itself the right to make all
>> decisions.
>>
>> Robin
>>
>>
>> On Mar 8, 2013, at 7:59 AM, Mary.Wong at LAW.UNH.EDU wrote:
>>
>>> http://www.icann.org/en/news/public-comment/proposed-raa-07mar13-
>>> en.htm
>>>
>>> Besides the draft Registrant Rights & Responsibility (R3) document
>>> that has already been discussed on this list, there are several
>>> other
>>> issues that may be of concern/interest to NCSG members, including
>>> the
>>> overlap with the changes currently being proposed to the new gTLD
>>> Registry Agreement in light of the whole "public interest" issue
>>> around new gTLDs. Note that the law enforcement agencies' requests
>>> that dominated earlier public discussions of the RAA were already
>>> folded into the draft before February, which is when the last
>>> round of
>>> negotiations between the Registrars and ICANN took place.
>>>
>>> The Registrars' Negotiating Team don't seem happy with ICANN
>>> releasing
>>> the draft at this point, interpreting that to mean that as far as
>>> ICANN is concerned this means negotiations are, effectively, over.
>>> Here's their official statement:
>>> http://www.internetnews.me/2013/03/08/registrar-negotiating-team-
>>> issues-statement-on-raa/
>>>
>>>
>>> Cheers
>>> Mary
>>>
>>> Mary W S Wong
>>> Professor of Law
>>> Director, Franklin Pierce Center for IP
>>> Chair, Graduate IP Programs
>>> UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
>>> Two White Street
>>> Concord, NH 03301
>>> USA
>>> Email: mary.wong at law.unh.edu
>>> Phone: 1-603-513-5143
>>> Webpage: http://www.law.unh.edu/marywong/index.php
>>> Selected writings available on the Social Science Research Network
>>> (SSRN) at: http://ssrn.com/author=437584
>>>
>>>
>>
>>
>>
>>
>> IP JUSTICE
>> Robin Gross, Executive Director
>> 1192 Haight Street, San Francisco, CA 94117 USA
>> p: +1-415-553-6261 f: +1-415-462-6451
>> w: http://www.ipjustice.org e: robin at ipjustice.org
>>
>>
>>
>>
>
>
> --
> Wendy Seltzer -- wendy at seltzer.org +1 617.863.0613
> Policy Counsel, World Wide Web Consortium (W3C)
> Fellow, Berkman Center for Internet & Society at Harvard University
> Visiting Fellow, Yale Law School Information Society Project
> http://wendy.seltzer.org/
> https://www.chillingeffects.org/
> https://www.torproject.org/
> http://www.freedom-to-tinker.com/
>
IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA 94117 USA
p: +1-415-553-6261 f: +1-415-462-6451
w: http://www.ipjustice.org e: robin at ipjustice.org
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