The following consist of a prepared statement delivered by ICA Counsel Philip Corwin at the ICANN Public Forum in Durban today, plus the raw transcript of the subsequent interchange —
Good afternoon. Philip Corwin, Counsel to the Internet Commerce Association.
Several weeks ago CEO Chehade stated that domain registrants were ICANN’s primary customer. We welcomed that recognition.
Yet while he talked that talk, we have just seen ICANN retreat from walking that walk.
I’ll cite two examples.
At the Beijing Public Forum we asked if ICANN intended to implement the unanimous STI-RT recommendation that URS providers be placed under standard contract. One month later ICANN answered our question in writing and said “yes”, a contract was under development.
But when we asked at yesterday’s URS session about the contract’s status, ICANN staff stated that no contract was contemplated. This breach of a written commitment is unacceptable.
Second, in regard to the new RAA contract, we filed comments supporting the NCSG’s position that the Statement of Registrant Rights and Responsibilities should be strengthened. ICANN’s response was to leave the substance unchanged — but downgrade “rights” to “benefits” in the title.
Words do matter. Rights are enshrined in Constitutions and Universal Declarations – Benefits are doled out by social welfare programs.
We bring these retreats on registrant due process and substantive rights to the Board’s attention with the aim of working with you and staff to match reality to rhetoric in the days ahead.
Thank you very much for your attention.
>>STEVE CROCKER: THANK YOU. DO WE HAVE A MANAGEMENT REPLY? GO AHEAD.
>> WE HAVE MOUs, MEMORANDUMS OF UNDERSTANDING WITH OUR URS PROVIDERS. I’M LOOKING TO THE LEGAL TEAM TO CONFIRM THAT. SO WE DO HAVE AGREEMENTS IN PLACE WITH THE URS PROVIDERS. IN TERMS OF CONTRACTS SO PERHAPS MR. WAS A MISUNDERSTANDING ABOUT THAT. I WASN’T PART OF THOSE WRITTEN COMMUNICATIONS BUT WE CAN CERTAINLY GO BACK AND LOOK AT THE COMMUNICATIONS AND CLARIFY ANY MISSTATEMENTS.
>>PHIL CORWIN: WELL, MAY I RESPOND THAT MY QUESTION IN BEIJING ON THE RECORD WAS QUITE CLEAR IN STATING THAT I DID NOT VIEW ON BEHALF OF MY CLIENT, THE MOU TO CONSTITUTE AN ENFORCEABLE CONTRACT AND ASKED IF SOMETHING BIGGER WITH ENFORCEMENT PROVISIONS WAS FORTHCOMING. AND THAT WAS THE QUESTION THAT ICANN ANSWERED IN WRITING A MONTH LATER. SO MY QUESTION WAS QUITE CLEAR THAT I WAS NOT REFERRING TO THE MOU. AND THE RESPONSE I HAD ASSUMED, TOOK THE FULL SUBSTANCE OF THE QUESTION INTO ACCOUNT.
>>STEVE CROCKER: AMY?
>>AMY STATHOS: SO PHIL, I UNDERSTAND YOUR POINT. BUT JUST TO CLARIFY THAT AN MOU IS A CONTRACT. I UNDERSTAND THAT YOU DON’T NECESSARILY RECOGNIZE THAT AS THE FULL CONTRACT THAT YOU WERE CONTEMPLATING OR THAT HAD BEEN CONTEMPLATING BUT THAT IS A CONTRACT AND IT CALLS AND REQUIRES THE URS PROVIDERS TO COMPLY WITH ALL THE RULES AND PROCEDURES THAT ARE IN THE GUIDEBOOK. SO IN FACT IT DOES ACTUALLY REQUIRE THEM TO COMPLY WITH THE PROCEDURES AS WELL AS THE RULES THAT HAVE BEEN DEVELOPED IN THE PROCESSING OF THE URS PROCEDURE.
>>PHIL CORWIN: FINAL QUICK RESPONSE. I DON’T WANT TO HOLD UP THE OTHERS. BUT WHEN YOU ANSWER A QUESTION THAT A CONTRACT IS BEING DEVELOPED, WHEN THE MOU EXISTED BEFORE MY QUESTION WAS RAISED IN BEIJING, I DON’T SEE HOW SOMETHING COULD HAVE BEEN IN DEVELOPMENT WHEN IT PRE-EXISTED THE QUESTION. THANK YOU.
[APPLAUSE.] >>STEVE CROCKER: THANK YOU
To our shock and dismay, ICANN staff today stated in Durban that it is not developing a standard and enforceable contract for Uniform Rapid Suspension (URS) arbitration dispute providers, going back on its written statement of May that it was doing precisely that.
Members of the ICANN community assembled in Durban, South Africa were greatly surprised by announcement on the meeting’s first day that no less than five new strategy panels were being formed to “serve as an integral part of a framework for cross-community dialogue on strategic matters”.
According to the official announcement:
“The ICANN Strategy Panels will convene subject matter experts, thought leaders and industry practitioners to support development of ICANN’s strategic and operational plans, in coordination with many other global players, and will be comprised of up to seven members including the chair for an anticipated one-year timeframe…The ICANN Strategy Panels will focus specifically on identifier technology innovation; ICANN’s role in the Internet organizations’ ecosystem; ICANN multistakeholder innovation; the public responsibility framework; and the role of ICANN in the future of Internet governance.”
Chairs for four of the five panels have already been announced and include former ICANN Board Chairman Vint Cerf, who now serves as Chief Internet Evangelist for Google.
While withholding judgment until additional information becomes available, initial responses from most of the business stakeholders we have spoken with in Durban have been to question where did this come from, why is it needed, and should ICANN even be thinking about how to reinvent five separate wheels at a time when the new gTLD program launch poses continuing complex challenges? These questions were amplified by the near-simultaneous announcement that initiation of GNSO review will likely be postponed for at least another six months. The current GNSO structure, comprised of discrete silos for contracted and non-contracted parties, has been substantially scrambled by the launch of the new gTLD program — with many existing stakeholder groups unable to reach consensus views on key issues due to a growing diversity of internal interests.
Concerns were also voiced that, given the lack of any community calls for such an initiative, the announcement signaled a further subjugation of the bottom up model by top down decision making. This added to feelings that the volunteer multistakeholder community is at an increasing disadvantage in dealing with a torrent of ICANN developments — while the organization’s staff ranks are slated to expand by fifty percent over the coming year.
Although the announcement stresses that the panels “will operate in a manner consistent with ICANN’s commitment to transparency and accountability; and will channel all views, guidance and advice produced into the standard community and Board processes that guide ICANN’s activities”, our experience is that it is the nature of such entities to recommend change rather than maintaining the status quo.
With each of the five panels limited to no more than seven members, including the Chair, the member selection process may well be the most critical step in the entire process. The panels are slated to start their work in September. With the surprise announcement now a fait accompli, the multistakeholder community can anticipate delivery of five new strategic blueprints in Fall 2014. But it is impossible at this time to predict what those blueprints will propose to construct.
Durban is a lovely beach city on the Indian Ocean with idyllic winter weather, but you might as well be on Mars if you’re ensconced in the vast windowless meeting rooms of its International Conference Center. That’s where ICANN’s Governmental Advisory Committee (GAC) spent a good part of Saturday, July 13th, engaged in a dialogue with the non-conflicted members of the New gTLD Board Committee (NGPC) about how to have a constructive dialogue over the coming months geared toward understanding all, and implementing at least some parts, of the GAC’s safeguard advice for “sensitive” new gTLD strings encompassing regulated industries and professions. Read more
We got pretty excited recently when ICANN CEO Fadi Chehade said that registrants were ICANN’s primary customer – but we must now curb our enthusiasm in light of the final treatment of registrants’ rights in the newly approved Registrar Accreditation Agreement (RAA).
The draft RAA contained a statement of Registrants’ Rights and Responsibilities (RRR) that all accredited registrars must provide a link to. Last month ICA filed comments that endorsed and suggested additional improvements to the alternate RRR proposed by ICANN’s Non-Commercial Stakeholders Group (NCSG). We did that because the draft RRR did not go far enough in providing detailed background on the basic rights that all domain registrants should expect – including uniform and neutral UDRP administration, and timely and secure domain transfers.
The response of ICANN to the urgings of the NCSG and ICA was not to add a single strengthening word to the RRR – but to change the title by deleting the word “Rights” and substituting the word “Benefits”. So the RRR has now become the RBR.
Now we don’t know about you, but we think that’s a significant downgrade. After all, revolutions have been fought to secure basic “rights”, and they are enshrined in Constitutions and Universal Declarations. Whereas “benefits” are something you get when you join a club or organization, or take out an insurance policy. Or, even worse, something you collect when you’re unemployed or disabled. Registrants want and deserve the protections that come with rights.
One portion of the ICANN Board Resolution approving the RAA seems completely unaware of the downgrade, and in fact uses the deleted term multiple times in its description of the RRR as one of the “highlights” of the new RAA (so just substitute “benefits” each place you read “rights”):
A Registrant Rights and Responsibilities Document that sets out, in clear and simple language, the rights and responsibilities that are set out in the 2013 RAA, such as the types of information that registrants can expect to be made available to them about terms and conditions of registrations, fees and customer service processes. The document also emphasizes the registrant’s role in providing accurate contact information, and responsibilities in maintaining domain name registrations. These enumerated rights and responsibilities are not comprehensive of all registrant rights and responsibilities set out in consensus policies, however this document is closely tied to the terms of the 2013 RAA. (Emphasis added)
Yet another portion of the very same Resolution, explaining the main concerns raised in public comments, contains this curious explanation:
Some commenters raised concerns about the new Registrant Rights and Responsibilities document, suggesting that it does not go far enough in recognizing more general rights and responsibilities. Because of the specific purpose of the Registrant Rights and Responsibilities specification – which is to track to the terms of the 2013 RAA – we have clarified the title of the document. If the community wishes to produce a broader declaration of the rights and responsibilities, nothing within the 2013 RAA would preclude that work.
So, in response to concerns that the RRR didn’t go far enough in recognizing registrant rights, ICANN edited the document title to eliminate any reference to rights? How was that in any way responsive to those comments? And, for our part, we weren’t referencing “more general rights and responsibilities”, as our letter made clear that we were addressing the rights of registrants in their dealings with registrars accredited by ICANN to serve as middlemen in the domain sales and renewal market.
Finally, when we reviewed the summary of the changes to the final and approved RAA, we found this further brief explanation of the downgrade:
Edit reflects new title in response to public comment.
We found that explanation to be quite strange as well, as we don’t recall reading a single comment asking ICANN for the rhetorical downgrade. In fact, the only comments filed on the RRR were those of NCSG and ICA urging that the statement of rights be strengthened.
Well, as the Board resolution states – “If the community wishes to produce a broader declaration of the rights and responsibilities, nothing within the 2013 RAA would preclude that work.” I guess that we, the NCSG, and other members of the community who believe that registrants deserve a standard statement of their rights need to get to work.
But for now, in ICANN’s official view, registrants seem to have responsibilities but no offsetting rights, just some benefits.
ICANN’s Board approved the new Registrar Accreditation Agreement (RAA) on June 27th, and its Resolution doing so noted that “the Board has accepted the GAC Advice in the Beijing Communiqué that the “the 2013 Registrar Accreditation Agreement should be finalized before any new gTLD contracts are approved.”” — and cited as a “highlight” that “The 12 Law Enforcement Recommendations that served as the impetus for these negotiations are all addressed” including “new data retention obligations”. However, a newly disclosed June 6th letter reveals that ICANN was already aware that EU-based registrars would have solid grounds to seek an exemption from those very data retention obligations. Read more
ICANN held a briefing in Brussels on Tuesday, June 25th and ICANN CEO Fadi Chehade was the leadoff speaker. We’ve reviewed some detailed reports from those in attendance, and the most startling and refreshing statement made by CEO Chehade was that new gTLD applicants will be managed as ICANN’s licensees – that he regards the registrant/user as ICANN’s “customer” and that is the party that ICANN primarily serves. One source quoted him as saying, “”New gTLD Registries are our licensees: our clients are registrants”, while another had it as “Registrants are ICANN’s customers; not registrars, not registries”. Whatever the exact words, the sentiment is clear.
If that mentality permeates through ICANN – that registrants are to be regarded as primary customers, and not the bottom of the food chain — it will indeed be an overdue and very welcome sea change. Every comment letter submitted by ICA to ICANN always starts with an introductory statement that includes these words:
Its [ICA’s] membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. (Emphasis added)
ICA is not the only representative of domain registrants operating within ICANN, but we certainly speak for a significant and important segment.
While CEO Chehade’s words are very welcome, we’ll be waiting and watching to see if they are backed up by real world actions that verify this commitment. And there are near-term actions that can validate that ICANN is truly serving registrants first.
For example, if registrants are truly ICANN’s primary customer, then the existing statement of Registrants’ Rights and Responsibilities (RRR) should be beefed up to reflect that, as ICA recently urged (http://internetcommerce.org/Stronger_Registrant_Rights). Likewise, now that the “Trademark + Fifty” component of the “Strawman Solution” has been adopted (an unwise decision that short-circuited proper procedures, in our opinion) the trademark warning provided to prospective registrants must be significantly expanded to include data reflecting the fact that such warnings will be triggered not just by exact matches to high quality trademarks but by multiple variations that were the subject of a negative UDRP or court decision. In order to determine whether proceeding with a new gTLD domain registration may subsequently trigger a potential finding of bad faith registration in a UDRP or URS action, registrants need to be told of such factors as what TLD the violating variation was registered at, how it was being used, whether the UDRP decision was rendered by a single or three member panel, and whether the UDRP finding was subsequently reversed in a court decision..
In his other remarks, CEO Chehade indicated:
Finally, we were intrigued by a report that CEO Chehade had emphasized that ICANN was committed to seeing new gTLDs launch by autumn because the program was “cutting oxygen from ICANN and making ICANN sick”. Asked for further explanation, its source responded that the meaning was that ICANN had been all-consumed by the new gTLD program and needed to move on to other important work, such as security and Internet governance. Another source quoted the remarks as, “But we will get this program birthed because if we don’t, then the baby will start getting really sick. This program has been consuming energy and taking resources away from ICANN and preventing us from doing other things that we are also tasked with doing.”
There’s no disputing that the rules for and launch of the new gTLD program have dominated ICANN discourse since the Paris Board vote in 2008 to authorize the program. We suspect that the launch of the program will bring multiple new challenges that will continue to consume significant ICANN resources – one rationale for creating the new Generic Domains Division may well be to contain that ongoing work within a single part of ICANN, while freeing up staff and other resources for sidetracked projects.
And to the list of items that CEO Chehade wants to move on to, we’d add one more on behalf of the registrants we represent – serious and comprehensive UDRP reform that addresses the many concerns that registrants have about the operation of the current system, and that produces a reliable, impartial, and consistent UDRP system for the approaching world of 1,000-plus gTLDs and additional UDRP arbitration providers.
The White House has just released the “2013 JOINT STRATEGIC PLAN ON INTELLECTUAL PROPERTY ENFORCEMENT” issued by the U.S. Intellectual Property Enforcement Coordinator (IPEC), and ICANN efforts are discussed at some length. The Report makes clear that U.S. activities within ICANN are regarded as an integral part of the government’s overall strategic efforts against IP infringement. (http://www.whitehouse.gov/sites/default/files/omb/IPEC/2013-us-ipec-joint-strategic-plan.pdf).
The Introduction to the report states that the U.S. plans to expand on multiple action items, including:
The full section discussing ICANN states that the National Telecommunications and Information Agency (NTIA) will continue to lead and coordinate the government’s engagement with ICANN to:
The Report also states that the U.S will closely monitor the implementation of new Rights Protection Mechanisms (RPMs), including Uniform Rapid Suspension (URS) for effectiveness – and that it reserves the right “to seek necessary course corrections as affected U.S. stakeholders gain experience with the new DNS environment”.
We would certainly hope that any such review is preceded by a decent interval of time and associated experience before contemplating any tweaks to URS — and that the affected stakeholders to be considered include new gTLD domain registrants, as it remains to be seen whether implementation of the URS will adequately protect their procedural and substantive due process rights. For its part, ICA also intends to monitor and review URS implementation – and to advocate changes if its narrow purpose as a UDRP supplement is not respected by rights holders or arbitration providers.
The Report also alludes to the government’s widespread domain seizure activities, both domestically and abroad. The section titled “Improve National Law Enforcement Efforts to Protect Intellectual Property Rights”, includes this information:
–In June 2010, the IPR Center initiated Operation In Our Sites, the first coordinated and sustained law enforcement effort to target websites that distribute counterfeit merchandise and pirated works. Since the operation’s inception, Federal law enforcement agencies, in conjunction with DOJ, have conducted 13 operations targeting sites focused on particular subject matter such as sports apparel or luxury goods and resulting in the seizure of more than 1,700 domain names of infringing websites and monetary seizures of over $3 million.
−−In April and May 2012, as a result of investigations generated by the IPR Center led Operation In Our Sites, in two separate cases ICE-HSI, working with DOJ, seized over $2 million in proceeds from online sales of counterfeit goods by Chinese perpetrators. The funds were seized from correspondent bank accounts located at the Bank of China in New York under 18 U.S.C. § 981(k), which permits the U.S. Government to seize funds from a foreign institution’s interbank accounts in the United States for forfeiture to the Treasury. This was ICE-HSI’s first use of section 981(k) to seize illicitly-derived proceeds identified as part of an intellectual property rights criminal investigation deposited in a Chinese bank.
And the section titled “Combat Foreign-Based and Foreign-Controlled Websites that Infringe American Intellectual Property Rights” includes this information:
•Operation Pangea is a joint global operation focused on targeting websites offering illicit and potentially dangerous substances to consumers in the United States and abroad. In 2012, Operation Pangea V resulted in the shutdown of more than 18,000 illegal pharmacy websites and the seizure of about $10.5 million worth of pharmaceuticals worldwide.
•In the fall of 2011, the co-founders and other top administrators of NinjaVideo.net, a website offering pirated movies and television programs to millions of users, which is hosted on servers located in the Netherlands and France, pleaded guilty to criminal copyright infringement and were later sentenced to Federal prison. In April and May 2012, in two separate cases generated from Operation In Our Sites investigations, ICE-HSI seized over $2 million in proceeds from online sales of counterfeit goods from the Bank of China in New York.
•Voluntary initiatives by the private sector are intended to help reduce the ability of foreign and domestic websites to target U.S. consumers. IPEC has worked closely with Internet service providers (ISPs), advertisers, credit card companies, payment processors, search engines, domain name registrars, and registries to encourage voluntary steps to reduce infringement.
•USTR has issued three Notorious Markets Lists, which identify foreign websites offering pirated and counterfeit products as part of its annual review of physical and online markets that deal in copyright and trademark infringing goods. As noted, several markets included on those lists have taken action to address concerns.
While typically bureaucratic in its comingling of the important and the mundane — and giving equal billing to such disparate infringements as life-
threatening counterfeit pharmaceuticals and mechanical equipment alongside unauthorized MP3s — the Report nonetheless offers in its entirety a sweeping portrait of the extremely broad scope of the resources and activities dedicated by the U.S. to this war on IP infringement — a war in which ICANN has been assigned a leading role.
The complete report section discussing ICANN follows:
Protect Intellectual Property at ICANN
The expansion of the domain name system (DNS) through the implementation of ICANN’s new generic top-level domains (gTLDs) is an important evolution in the administration of the DNS, which brings with it the need to ensure the new gTLDs take into account and provide for meaningful intellectual property and other safeguards and support the type of innovation and competition that has led to the success of the modern Internet.
Coordinated via the NTIA-administered DNS Interagency Working Group, NTIA will continue to lead the U.S. Government’s engagement with ICANN’s multi-stakeholder processes to further improve the new gTLD program, including through mechanisms for intellectual property protection, and to mitigate abuses of the domain name registration system. Specifically, NTIA will collaborate with all U.S. stakeholders, including intellectual property stakeholders, as well as other Federal agencies, such as USPTO, and FBI and other law enforcement agencies, to develop positions within ICANN’s Governmental Advisory Committee (GAC) to advance access to accurate, complete, and publicly available WHOIS data, improvements to the Registrar Accreditation Agreement (RAA) between Registrars and ICANN, effective contract compliance by ICANN, and appropriate consideration of intellectual property issues in the context of gTLDs.
In this regard, NTIA will closely monitor the effectiveness of the Rights Protection Mechanisms (RPMs), such as the Trademark Clearinghouse and Trademark Claims Service, and the Uniform Rapid Suspension System (URS), that have been developed in conjunction with the new gTLD program to ensure they provide meaningful and effective remedies so that new gTLDs do not become avenues for cybersquatting and infringing activities. NTIA will work through all appropriate mechanisms within the ICANN multi-stakeholder process, and particularly the GAC, to review the effectiveness of the new RPMs, and to seek necessary course corrections as affected U.S. stakeholders gain experience with the new DNS environment. In addition, NTIA will closely monitor adoption and implementation by Registrars of the revised Registrar Accreditation Agreement (RAA), which will include a specific focus on ICANN’s contract compliance capabilities and results to ensure that ICANN holds its accredited Registrars to all of the new commitments included in the RAA.
ICA has been informed by ICANN Staff that the Working Group (WG) on the Locking of a Domain Name Subject to UDRP Proceedings appears to have settled on a recommendation that domain name registrants who are Respondents in a UDRP proceeding be granted an automatic right to request and be granted a four day extension of the deadline for filing their response. This would be the first increase in UDRP response time since the Policy was established.
The compromise settled upon by the WG was described as follows:
Participating UDRP Respondents be granted an express option to request a four day extension should they so choose, with any such received four day extension request to be automatically granted, and the corresponding deadline extended by the UDRP Provider, at no cost to the Respondent. The availability of such automatic four day extension option on request should also be flagged by the UDRP Provider for the Respondent’s information on commencement of the proceedings.
ICA was told that the WG was of the view that this would accommodate for the loss of informal response time, while at the same time recognizing that only in 25% of cases a response is actually received.
The WG had previously announced that it would recommend that the UDRP Complainant no longer be required to inform the respondent of the filing of the Complainant to prevent rare instances of “cyberflight’ where the domain is transferred to a new registrar to avoid being locked; the Respondent would receive notification later from the dispute arbitration provider. ICA had protested that this would substantially reduce the time available to registrants to prepare a response, which was particularly unfair since the Complainant had unlimited time to prepare its filing and controlled its timing and the choice of UDRP provider.
Our views were first raised in a public discussion of the WG’s Initial report during the ICANN Beijing meeting in April, and were subsequently explained in a comment letter filed on April 26th (see https://www.internetcommerce.org/UDRP_Lock). That letter stated:
[W]e strongly object to the proposed deletion of the current UDRP requirement that the complainant shall provide the respondent domain registrant with a copy of the complaint at the same time it is submitted to the UDRP provider, on the ostensible grounds that such deletion is required in order to prevent “cyberflight”. As a practical matter this will substantially reduce the time, by up to one-third, that registrants/respondents have to prepare an effective defense against complainant allegations – as well as deprive less sophisticated registrants of critical time necessary to gain an understanding of the UDRP process and their rights within it, and to locate and secure competent counsel capable of assisting in a defense. The Report lacks any validated documentation that cyberflight is sufficiently widespread to justify this fundamental degradation of registrant rights.
Since filing that comment ICA had continued to exchange views with members and staff of the WG, leading to its compromise decision to permit an automatic four day extension. While that may not fully restore the lost time in all cases, it could well prove crucial to some registrants with domains targeted in a UDRP.
The WG is continuing to consider procedures to be followed when a UDRP case is settled by the parties, and ICA has provided input on that matter as well.
The Internet Commerce Association (ICA) has endorsed and suggested additional improvements to the alternate statement of Registrants’ Rights and Responsibilities (RRR) proposed by ICANN’s Non-Commercial Stakeholders Group (NCSG). ICA’s comment was filed in regard to the “Proposed Final 2013 RAA” (Registrar Accreditation Agreement); the RRR is one component of the RAA and all ICANN-accredited registrars will be required to link to it for the informational benefit of their customers.
The current RRR text contained in the RAA was drafted by registrars alone and does not go far enough in providing detailed background on the basic rights that all domain registrants should expect – including uniform and neutral UDRP administration, and timely and secure domain transfers. While professional domain investors have a more sophisticated understanding of their domain-related rights, the RRR should provide novice registrants with a comprehensive overview of the domain rights they should expect.
ICA also recognizes that domain registrants have responsibilities, and to that end we also suggested strengthening provisions including the provision of accurate WHOIS data and, most importantly, taking responsibility for the use of one’s domains.
We hope that ICANN will take the NCSG-ICA comments into account as representing important input from the registrant sector and will therefore strengthen the RRR before the RAA is made final. The full text of our comment letter follows:
Philip S. Corwin, Founding Principal
1155 F Street, NW Suite 1050
Washington, DC 20004
June 4, 2013
Internet Corporation for Assigned Names and Numbers
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536
Re: Proposed Final 2013 RAA/Statement of Registrants’ Rights and Responsibilities:
I am writing on behalf of the members of the Internet Commerce Association (ICA). ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers.
These comments reflect our views on the “Proposed Final 2013 RAA” that was posted for public comment on April 22, 2013 at http://www.icann.org/en/news/public-comment/proposed-raa-22apr13-en.htm.
The current draft statement of Registrants’ Rights and Responsibilities (RRR) is deficient in scope. We prefer the alternate version proposed to ICANN by the Non-Commercial Stakeholders Group (NCSG) and propose that a modified version of it be adopted as the final RRR. As a document intended to provide guidance to all registrants, especially those lacking a sophisticated understanding of their rights and responsibilities, it is important that the RRR reflect the input of registrants represented by such entities as the NCSG and the ICA as well as of registrars.
The ICA strongly supports the concept of a standard statement of RRR that all accredited registrars must provide a link to. However, the current draft RRR (available at http://www.icann.org/en/resources/registrars/raa/proposed-registrant-rights-responsibilities-22apr13-en.pdf) is insufficient in scope. This deficiency perhaps reflects the fact that it was drafted by regis
trars without input from registrants or entities representing them.
As an RRR starting point, we prefer the proposed draft submitted by ICANN’s NCSG on May 14, 2013 and available at http://forum.icann.org/lists/comments-proposed-raa-22apr13/msg00010.html. We have modified and added some provisions of that draft — and have also included, for the sake of comprehensive treatment and balance, some important provisions of the current registrar-developed draft RRR.
We would propose that ICANN adopt this modified RRR statement in lieu of the current draft RRR; modifications and additions to the NCSG draft are indicated below (deletions in [brackets] and additions in boldface):
Registrants’ Rights and Responsibilities
Registrants of domain names depend on the DNS to provide stable online location-pointers for their speech, association, commercial, and non-commercial activities. Registrants derive rights and responsibilities from applicable law as well as from the web of ICANN-based contracts and relevant policies. As a matter of policy, ICANN should ensure that its contracts and the parties bound by them can support a wide range of lawful and innovative end-user activities and free and open communications.
Registrants shall have the right to:
• Reliable neutral resolution of registered domain names;
• No suspension or termination of registration without due, disclosed process;
• Privacy in the provision and display of registration data;
• Fair and non-discriminatory treatment from ICANN, Registrars and Registries;
• No censorship of domain use, content, or communications through Registries or Registrars;
• Timely and secure transfer of registered domain names between Registrars;
• Renewal (or choice not to renew) domain name registrations on clearly disclosed terms.
To accomplish that, registrants shall be entitled to accurate and accessible information about:
• The identity of their ICANN Accredited Registrar;
• The identity of any proxy or privacy service provider affiliated with their Registrar;
• The terms and conditions under which Registrant information is revealed by a proxy or privacy service provider;
• The terms and conditions under which Requests are relayed to Registrants by a proxy or privacy service provider (without revealing of the identifying information);
• The Registrar’s terms and conditions, including clear and conspicuous disclosure of pricing information and other key terms and conditions, applicable to both Registrar services and any proxy/privacy services offered by the Registrar;
• Clear and conspicuous identification of any changes to the Registrar contract and/or the terms of the proxy/privacy agreement, to which they will be held on continuation or renewal of the domain name;
• Notice of the customer support services offered by the Registrar and its proxy/privacy service providers, and how to access them, including means to raise concerns and resolve disputes;
• Instructions that are readily understandable and explain the Registrar’s processes for registering, managing, transferring, reviewing and restoring domain name registrations, including any proxy/privacy services that may be available from the Registrar.
Registrants have the responsibilities:
• To be contactable, to maintain current Registrar account data, and to respond to registrar inquiries within a reasonable time; or to provide an alternative such as allowing the registrar to suspend registration upon an unresponded-to allegation of abuse;
• Not to use the domain name for abuse of the DNS (to be defined more specifically: e.g., specific DNS attacks, deliberate malicious distribution of malware, or criminal activity); and
• Not to commit intentional trademark infringement (“cybersquat” [(] as defined in the UDRP and enforced through it and other ICANN–adopted RPMs).
The adoption of an RRR that provides a clear, comprehensive and balanced recitation of rights and responsibilities is an important objective. Therefore, the current draft RRR should be replaced by an improved document.
We hope that ICANN finds our views useful Thank you for considering them in this important matter affecting the general understanding of the basic rights and responsibilities of domain registrants.
Philip S. Corwin
Counsel, Internet Commerce Association