ICANN

3
Jul

ICA Asks ICANN for Explanation of .org Decision

ICANN’s decision to execute the new .org Registry Agreement despite overwhelming public opposition is greatly concerning to stakeholders and raises serious questions about the so-called “bottom-up multi-stakeholder model”. We have some questions.

We put the questions into the attached letter to Cyrus Namazi, Vice-President of the Global Domains Division, the group at ICANN responsible for the terms found in the .org Registry Agreement. We aren’t the only ones asking how ICANN is acting in the public interest when it adopts policies nearly universally condemned by those affected by those policies. We look forward to Mr. Namazi’s response.

 

Letter to Cyrus Namazi re .org Renewal

30
Jun

ICANN IGNORES STAKEHOLDERS AND REMOVES PRICE CAPS ON .ORG DOMAIN NAMES

The Internet Commerce Association (ICA) is profoundly disturbed by ICANN’s decision to remove price caps on .org domain names despite the groundswell of opposition from stakeholders.

On June 30, 2019, ICANN advised that it had executed a renewal agreement with Public Interest Registry and the renewal agreement. This was despite a nearly unprecedented public outcry from stakeholders and from .org registrants in particular, where over 3200 public comments were submitted to ICANN. The outcry came from registrants, nonprofits, community leaders, academics, charities, religious groups, community organizations, and many others. Apparently the ICANN Board allowed ICANN Staff to proceed to execute the renewal agreement without any concern over registrant interests, despite the ICA bringing this issue directly to its attention. The decision to ignore ICANN stakeholders in apparent total disregard for its self-professed “bottom-up multi-stakeholder model” is of great concern and calls into question ICANN’s ability to govern the domain name system in the public interest.

30
Apr

Selected Public Comments submitted in response to the Proposed Renewal of the .Org Registry Agreement

A Selection of Comments Submitted in Connection with the Renewal of the .Org Agreement

These are a selection of notable comments from the over 3,000 comments submitted in response to a request for public comment on the terms of the proposed renewal of the .Org agreement.  We have highlighted some phrases in bold and where needed fixed minor typos.

 

From a joint letter by the NPR, YMCA, C-SPAN, National Geographic Society, AARP, The Conservation Fund, Oceana, and National Trust for Historic Preservation:

— On price caps: “The reasonable expectation of .org registrants was, and continues to be, that prices would remain capped to ensure stable and reasonable domain name pricing for the millions of nonprofit organizations that have invested in a .org web presence. These organizations put their trust in ICANN as caretaker of the public interest in the .org name space.”

— Excessive Fees: “Every additional dollar earmarked for domain name registrations is a dollar that is not available to advance the public interest purpose of nonprofit registrants that use the .org name space.”

— Unsound policy basis: “ICANN has articulated no compelling policy basis for this proposed change. Instead, ICANN has represented that the intent is just to bring the .org Agreement into conformity with the base registry agreement used by ICANN with respect to other gTLDs not set aside for organizations that serve the public interest. This strikes us as conformity for its own sake. ICANN should not disregard the public interest in favor of administrative convenience.

 

From a comment by the National Council of Nonprofits:

“The National Council of Nonprofits is a trusted resource that advocates for America’s nonprofits nationwide. Through its network of state associations of nonprofits and 25,000-plus member charitable nonprofits, faith-based groups, and foundations, it serves as a central coordinator and mobilizer to help nonprofits achieve greater collective impact in local communities across the country.”

“A very large share of the more than 10 million .org domains are registered to charitable nonprofits organized under Section 501(c)(3) of the Internal Revenue Code.”

“Stripped of the jargon in the proposal is the suggestion that a domain populated almost exclusively by tax-exempt, nonprofit organizations is no different from long-established and emerging commercial-oriented domains. This mindset seeks to treat disparate entities as the same, something that laws and society fully reject.

“The ICANN proposal would subject nonprofits to unpredictable and unrestricted price hikes. Unlike for-profit businesses, nonprofits typically do not have revenue flexibility to absorb new and unexpected costs or to raise prices on consumers to overcome the hit to their bottom lines.”

“If domain names are no longer affordable, nonprofits will be forced to use less substantial subdomain. Donors are much more likely to donate at nonprofit.org than nonprofit.wixsite.com. Nonprofits that are no longer able to afford to keep a domain also risk longstanding domains being taken over by others, causing branding confusion and the potential for domains associated with charitable works being used for less-than-charitable purposes.

“Quite literally, the profits derived by this unwarranted change will ultimately be paid by the people nonprofits will not be able to serve. Every $1 in increased prices on the 10+ million .org domain users would generate more revenue each year than is utilized by all but the top one-percent of charitable nonprofits. Each one-dollar hike in costs per domain would divert more than $10 million from nonprofit missions for the enrichment of the monopoly. By anyone’s estimate, this money would be better spent delivering an additional 1,600,000 meals by Meals on Wheels to seniors to help maintain their health, independence and quality of life. Or $10 million could enable nonprofits to provide vision screenings for every two- and three-year-olds in California. Or pay for one million middle school students to attend performances of “Hamilton” or “To Kill a Mockingbird”. Nonprofits should not need to choose between paying for a domain name and helping people.”

 

From a comment by the ASAE:

“ASAE, which is the largest organization in the world representing the interests of trade and professional associations, is firmly opposed to ICANN’s proposal to remove price caps on the .org top-level domain (TLD) used by most associations and other tax-exempt organizations. Doing so would subject millions of associations and nonprofit organizations to what would most likely be an unstable pricing environment, forcing them to divert valuable resources from their exempt purpose in order to protect their online brand.”

“ASAE represents more than 44,000 association professionals and industry partners. Our members manage leading trade associations, individual membership societies and voluntary organizations across the United States and in nearly 50 countries around the world.”

“There are more than 10 million .org domain names registered. Legacy gTLDs like .com, .org and .net were created through the U.S. government and entrusted to ICANN to manage. ICANN then contracted with various service providers to operate legacy gTLDs – not to own them.

“It’s true that registry operators that won the right to sponsor new gTLDs can charge whatever price they see fit, but they also paid millions of dollars in some cases to acquire all of the value in their sponsored domain names, whereas the service contractors managing legacy domain names most assuredly did not. This is a crucial difference that ICANN should take great care to enforce.

“Stating that nonprofit organizations can easily switch from one domain name to another if they don’t like the pricing structure ignores the reality that established nonprofits have a longstanding Internet presence built on a .org domain name – a name and online reputation that the organization (not the registry operator) has spent decades cultivating.”

“ICANN’s mission is in part to preserve the operational stability of the Internet. Eliminating price caps and endangering the online credibility of the global nonprofit community is not consistent with ICANN’s mission.

 

From a comment by the California Association of Nonprofits:

“California Association of Nonprofits(CalNonprofits), a statewide policy alliance of more than 10,000 organizations, is the voice for California’s nonprofit community.

This proposed change to Section 2.10 of the .org renewal agreement would subject nonprofits to unpredictable and unrestricted price hikes. Unlike for-profit businesses, nonprofits typically do not have revenue flexibility to absorb new and unexpected costs or to raise prices.

Because this would be harmful to nonprofits, we strongly oppose the proposed Section 2.10 of the .org renewal agreement that would remove caps and permit unlimited price hikes on .org registrations and renewals.

Various other comments


“I’d like to offer that our religious community struggles to afford most things we do including our web presence. We focus our efforts of doing helpful things with our income and raising fees or opening up .org domain names to increased fees could be devastating to non-profit organizations.  Please don’t make it more difficult to be of service to others.

Father Thomas Clark, April 26, 2019


“I am a volunteer leader for several Scouting related groups, all of which have .org websites. We are volunteer based groups who’s leaders all spend way too much of our own money trying to help kids out. I personally pay for the renewal of our domain names simply because our groups don’t have the available money for them. If I didn’t pay for them the names, (and the associated sites), would end up going away. This is probably true for a lot of .org groups that work with youth.

Please don’t take the cap off the price increases. Every time these prices go up now it’s bad enough for me, but at least knowing they are somewhat limited helps.

Ted McLaughlin, Scoutmaster, April 24, 2019


“Many of these organizations have long-held .org domain names and a substantial percentage of their meager funding is tied to donors being able to find them via those domains. The massive potential price increases (as opposed to the moderate ones that are already possible) would prohibit smaller organizations and personal projects from having a place on the Internet. This is an anti-competitive practice aimed squarely at eliminating smaller organizations and nonprofits from having a presence on the Internet.”

Chris Raters, April 24, 2019


“The organization to which I belong is a registered nonprofit charity.  Our domain is an essential part of our identity and our ability to engage our members and raise money for our operations.  We are granted nonprofit charitable status because we bring a much needed benefit to the music and arts community.  A significant increase in the price of our domain would diminish our ability to offer these benefits and threaten our survival.”

Jerry Silver, April 25, 2019


Why, in God’s name, would anyone decide that .org domains in particular should be a market free-for-all?

Asai, an administrator of dozens of domain names for various nonprofit ministries, April 24, 2019


“I am writing in opposition to the removal of pricing caps for the .org  tld. That tld is widely used by non-profit organizations who might not
be able to afford steep increases in their URLS.  This could cause a great amount of upheaval and confusion if long standing non-profit and  community organization have to give up their tld’s and they are replaced by others with different agendas. How would low revenue, non-profit organizations be able to have a web presence if popular tld’s are only available to the affluent?  Bad idea.”

Gervase R. Bushe, Professor of Leadership and Organization Development, Beedie, School of Business, Simon Fraser University, April 26, 2019


“As a marine biologist working on many voluntary projects, particularly on marine mammal issues, it will be difficult for us if you remove the price cap. We won’t be able to afford the domain in a longer term, and we won’t be able to sustain our environmental movements for long. So, please keep the price low for us.”

Dr. Putu Liza Mustika (“Icha”), Director, www.cetasindonesia.org, April 25, 2019


This is basically sanctioning extortion, a domain name is closer to a trademark, except a company is apparently not allowed to own it… instead they must keep “leasing” their trademark from a registrar. What do I get for improving my domain name (making my business known, improving public trust, running a well known blog/ news site)? Clearly higher rent costs on that same name.”

Saevon Kyomae, April 26, 2019


“Just for the record, I’m an average guy who owns a .org domain, and I use it to provide mail services for myself and my family. I can afford $10US or $20US a year to maintain it.

HOWEVER, with the proposed removal of price caps, it’s very easy to imagine the cost of my domain going to $35US/year or even more. I may be able to afford that, but my wife would never approve the expense. It’s very easy to imagine that this proposed change would lead to me losing my domain.

Jeff Arnold, April 24, 2019


 

23
Apr

Say “No” to Unlimited Price Increases on .Org Domains! Use this Easy Form for Submitting Comments.

The ICA has created an easy-to-use Form for you to submit your objections to ICANN regarding its proposed removal of all price caps on .org domain names.

The form offers several possible objections to the terms of the agreement.  You can select the ones that most closely match your concerns.  The form will then create an email that you can send directly to ICANN using your usual email application.  You can include whatever comments that you wish to add, as well.

The deadline for comments is APRIL 29, 2019.

You can read learn about ICANN’s proposal here:

https://www.icann.org/public-comments/org-renewal-2019-03-18-en

You can read the ICA’s comment objecting to the terms of the proposed .org renewal agreement here:

https://mm.icann.org/pipermail/comments-org-renewal-18mar19/attachments/20190410/6844d72c/ICACommenton.orgPricing-April102019-0001.pdf

 

Click Here for the Form.

22
Oct

ICA Files ICANN Comment on Proposed .Museum RA Renewal

On October 3, 2017 the ICA filed a comment letter with ICANN regarding the proposed revisions to the renewal Registry Agreement (RA) for the .Museum gTLD.

As with other legacy gTLDs that have renewed over the past two years, the new RA proposes to adopt Uniform Rapid Suspension (URS). ICA once again protests this de facto creation of Consensus Policy through closed door bilateral negotiations rather than through the GNSO’s open and inclusive Policy Development Process (PDP).

The RA would also convert .Museum from a Sponsored  to a Community top level domain, but defines its “community” in a manner that is inconsistent with relevant ICANN policy and that is so loose that it essentially converts .Museum into an open gTLD where anyone may register. This is exactly the type of improper incentive that can induce a registry operator to “voluntarily” adopt the URS.

The letter’s Executive Summary states:

• ICA is concerned that Global Domain Division (GDD) has proposed a renewal agreement that proposes community status which is inconsistent with the present definition of “community” applied to other gTLDs; has engaged in a process that fails to observe the very safeguards it has stated must be followed for the expansion of classes of eligible registrants for a community gTLD; and continues to undermine the GNSO’s authority to recommend the substance of Consensus Policy by imposing adoption of URS through the RA renewal process.
• The 2016 launch of the PDP Review of All Rights Protection Mechanisms in All gTLDs, which is tasked with recommending whether new gTLD RPMs should become Consensus Policy for legacy gTLDs under its GNSO Council-approved Charter, makes it particularly inappropriate for GDD staff to continue seeking that de facto policy result in non-transparent, bilateral RA negotiations that contravene the policymaking process set forth in the Bylaws.
• GDD staff should demonstrate their clear commitment to ICANN’s bottom-up policymaking process by ceasing and desisting from seeking top-down imposition of new gTLD RPMs in legacy gTLD RA negotiations until the RPM Review WG has completed its work reviewing those RPMs and its final recommendations – including whether those RPMs should become Consensus Policy — have been acted upon by the GNSO Council and ICANN Board.
• In the absence of such GDD self-restraint, the ICANN Board should declare an immediate moratorium on the imposition of new gTLD RPMs on legacy gTLDs through RA renewal negotiations until the above referenced PDP has been concluded, the GNSO Council has acted upon its recommendations, and any implementation and transition issues have been addressed.
• The vastly expanded community of eligible registrants for the .Museum gTLD is inconsistent with the “community” definition adopted for the new gTLD program. Promulgating an inconsistent concept of gTLD community could create conflicts with the ongoing work of the Subsequent Procedures WG.
• The opaque process utilized for the expansion of eligible .Museum registrants is at odds with the transparent process being developed within ICANN, that GDD has stated must be utilized by other community gTLDs seeking to add new classes of eligible registrants. The renewal proposal shows no evidence that members of the existing .Museum sponsored community have been consulted on the proposed class expansion.

The full letter can be viewed at https://www.internetcommerce.org/wp-content/uploads/2017/10/ICA-Museum_RA_revision-comment-Final-100317.pdf

 

7
Mar

ICA Supports Retention of Court Access for Registrants in IGO UDRPs

ICA has just filed its comment letter supporting all five recommendations contained in the GNSO Initial Report on the IGO-INGO Access to Curative Rights Protection Mechanisms Policy Development Process. ICA Counsel Philip Corwin is Co-Chair of the Working Group (WG) that prepared this Report, issued after two years of extensive research into the underlying legal and policy issues.

From the viewpoint of domain registrants, the most important recommendation is that, in the rare instance where a domain registrant targeted by an IGO believes that an adverse UDRP or URS decision is in error, the registrant will retain the right to seek de novo judicial review by a court of mutual jurisdiction. The WG did not find a sound basis for accepting the recommendation of the “IGO Small Group” that the accepted scope of jurisdictional immunity for International Intergovernmental Organizations required any appeal be heard by another arbitrator rather than a court.

Addressing this issue in its letter, ICA stated:

Creating additional rights protection schemes that apply to only an extremely small subset of Internet users is impractical and would only be justified if the mutual jurisdiction appeals clause of current DRPs would always offend the degree of judicial immunity that is generally recognized for IGOs. However, based upon the input of its legal expert, the WG properly concluded that there is no such universal absolute immunity for IGOs in domain-related disputes, and that the proper forum for adjudicating an IGO’s immunity claim is a national court.

This cautious approach is consistent with the principle that, while ICANN policies should recognize and respect existing law, ICANN has no authority to grant legal rights that go beyond contemporary law. A California non-profit corporation’s attempt to deprive domain registrants of their statutory right to judicial process might well be spurned by many national courts, and would also run afoul of many national laws prohibiting involuntary dispute arbitration that deny access to court.

Further, given the demonstrated lack of quality control, consistency, and predictability in UDRP determinations it would be fundamentally unfair to attempt to bar the owner of a valuable domain who believes that a UDRP or URS has been wrongly decided from seeking truly independent de novo judicial review. The fact that the IGO’s preferred alternative, “appeal” to another non-judicial DRP provider, might well result in a rehearing by WIPO – an UN-affiliated IGO – would inevitably raise questions about whether it was an impartial and balanced forum or one disposed to favor its IGO brethren. Likewise, as both the UDRP and URS are supplements to and not substitutes for litigation, ICANN policy should never seek to deny the citizens of any jurisdiction access to courts in order to adjudicate their statutory rights unless such a result is required by other clear and universally recognized preemptive legal principles.

In regard to what should happen when an IGO successfully asserts its immunity from the jurisdiction of such court, ICA favored adoption of Option 1 put out for comment by the WG, that “the decision rendered against the registrant in the predecessor UDRP or URS shall be vitiated”.

In explaining that preference, ICA’s letter states:

Our rationale in favor of this option is that the UDRP and URS are convenient, expedited, and lower cost supplements to available judicial process, not preemptive substitutes, and that ICANN has no authority to require a non-judicial appeal and thereby strip domain registrants of those legal rights they may possess under relevant national law. Further, our members’ overall experience with the UDRP is that panel decisions can be seriously flawed — and it is precisely in those instances where the registrant believes that panel error has occurred and the loss of a valuable or functionally important domain is imminent that availability of independent, de novo judicial review is most critically required. Given the cost of litigation, such registrant appeals will likely be rare and reserved only for the most egregious mistakes in judgment by UDRP or URS panelists.

Successful assertion of an immunity defense by an IGO in such an appeal would essentially deprive the registrant of the opportunity for independent judicial appeal. In that circumstance, the UDRP/URS would no longer be a supplement to relevant law but a preemptive substitute for it. Such a result would go far beyond ICANN’s authority, remit and mandate. Therefore, if the IGO succeeds in its immunity claim and thereby effectively strips the registrant of its only meaningful opportunity for appeal, the predecessor UDRP should be vitiated and the situation should return to the status quo ante.

While the WG did not adopt the “Small Group” proposal, its Initial Report nonetheless recommends necessary adjustments and enhancements of existing UDRP and URS practice that will enable IGOs and INGOs to more readily access these existing expedited and low-cost curative rights mechanisms to effectively respond to misuse of their names and acronyms in the domain name system (DNS). These include allowing an IGO to assert standing to file a case based upon either trademark rights or, in the alternative, demonstration that it has complied with the simple communication and notification to WIPO prerequisite for gaining the protections for its names and acronyms in national trademark law systems in accordance with Article 6ter of the Paris Convention. The Report also clarifies that an IGO may avoid any concession on the matter of jurisdictional immunity by electing to file a UDRP or URS through an assignee, agent or licensee.

The comment period on the Initial Report has been extended through March 30th at the request of ICANN’s Governmental Advisory Committee (GAC) so that its members may have the benefit of attending sessions on the WG Report as well as facilitated GNSO-GAC discussions on outstanding IGO issues during the upcoming ICANN 58 meeting in Copenhagen. The WG will evaluate all the comments and consider whether changes should be made to its recommendations prior to issuing a Final Report for consideration by the GNSO Council. Any recommendations endorsed by Council will be sent on to ICANN’s Board for approval and implementation; the GAC can render its own advice on the Final Report and the Board is bound to consider that advice if it is adopted by full GAC consensus.

The full text of ICA’s comment letter is available here: ICA-IGO-CRP-Comment-Final

6
Oct

In Extending .Com RA, ICANN Board also Extended Price Freeze Through 2024

We have previously reported that, at is September 15th meeting, ICANN’s Board approved the proposed extension of the .Com registry Agreement (RA). What we did not know at the time was that the Board simultaneously approved an extension of the existing $7.85 ceiling on .Com wholesale prices through 2024.

 

That additional information recently became available when ICANN published its Preliminary Report | Regular Meeting of the ICANN Board for the September 15th meeting. The full text regarding the Board’s approval of the .Com RA extension is reproduced at the end of this blog, with key provisions related to wholesale pricing highlighted.

 

The key passage in that meeting narrative is:

The Vice Chair informed that Board that staff worked with Verisign to address this comment by proposing to revise the version of the amendment posted for public comment by adding additional language to extend the maximum price provision through 30 November 2024. The Board continued its discussion of the proposed amendment with the understanding that the amendment would be revised to reflect the noted change.

 

A revised version of the adopted RA extension language has also been published. The relevant language change reads as follows:

(b) Section 7.3(d)(i) of the Agreement is hereby deleted and replaced in its entirety by the following new Section 7.3(d)(i): “(i) from the Effective Date through November 30, 2024, US $7.85;”

 

There are two important caveats to keep in mind in understanding the import of this ICANN Board action:

  1. While the revised .Com RA now extends the price freeze through 2024, the issue could be raised again in negotiations between ICANN and Verisign if the US decides not extend the Cooperative Agreement (CA) in 2018, or does extend it but alters the pricing terms. That’s because the RA extension amendment also contains this provision—

Future Amendments. The parties shall cooperate and negotiate in good faith to amend the terms of the Agreement (a) by the second anniversary of the Amendment Effective Date, to preserve and enhance the security and stability of the Internet or the TLD, and (b) as may be necessary for consistency with changes to, or the termination or expiration of, the Cooperative Agreement between Registry Operator and the Department of Commerce.

 

Under that provision, if the CA is terminated or revised in 2018 that would lead to discussion of amendments to the RA necessary for consistency with the CA. The Department of Justice recently advised Senator Cruz that the RA extension has no effect on the .Com price freeze, and that NTIA has the authority to extend the price freeze through 2024.

 

So what ICANN’s Board has done with this action is, in effect, pre-approve an extension of the existing .Com price freeze in anticipation that the NTIA may extend it through 2024. But what NTIA will actually do in the next two years cannot be predicted at this time, and if that agency takes a different course of action then ICANN and Verisign will enter into new discussions to reconcile the RA and CA (or reconcile the RA with the expiration of the CA).

 

  1. By extending the RA now, rather than having it come up for renewal in 2018, the possibility of ICANN staff pushing Verisign to adopt URS or other new gTLD RPMs in .Com contract renewal negotiations – as they did last year for .cat, .pro, and .travel — has been eliminated. That was one of the principal considerations underlying ICA’s non-objection to the RA extension, along with an understanding that it would have no effect on the price freeze.

 

However, adoption of those RPMs by .Com was advocated by trademark and other interests who commented on the proposed RA extension, and could come up in the talks between ICANN and Verisign that the amended RA requires “to preserve and enhance the security and stability of the Internet or the TLD”.

 

But the question of whether and in what form URS should become an ICANN Consensus Policy applicable to legacy gTLDs like .Com will likely be addressed by the RPM Review Working Group when it issues its phase one preliminary report and recommendations in 2017, and its decision should have substantial impact on any subsequent security and stability discussions between ICANN and Verisign.

 

 

Here’s the relevant language of the Preliminary Report —

 

 

.COM Registry Agreement Amendment

Ram Mohan abstained noting potential conflicts of interest. The Vice Chair presented the agenda item. He gave the Board an overview of the proposed amendment to the .COM registry agreement to extend the term of the agreement to 2024. The original term of the registry agreement was set to expire in 2018. He reported that there were some concerns raised during the public comment period about clarifying whether the maximum price provision in the .COM registry agreement would continue. The Vice Chair informed that Board that staff worked with Verisign to address this comment by proposing to revise the version of the amendment posted for public comment by adding additional language to extend the maximum price provision through 30 November 2024. The Board continued its discussion of the proposed amendment with the understanding that the amendment would be revised to reflect the noted change.

The Vice Chair stated that another topic of concern raised during the public comment period was about moving the existing.COM registry agreement to the form of the New gTLD Registry Agreement. The Board considered this concern, and took note of the provision in the proposed amendment obligating Verisign to ICANN to negotiate in good faith in two years potential changes to the registry agreement in order to preserve and enhance the security of the Internet or the TLD.

The Board also discussed the extension of the term of the .COM registry agreement as it relates to other provisions in the existing .COM registry agreement that might allow for future changes of the agreement. As part of this discussion, the Board considered the provisions in the .COM registry agreement concerning renewals being upon similar terms of the largest five gTLDs, and provisions addressing the implementation of consensus policies developed through the GNSO policy development process.

As part of its deliberations, the Board also considered comments raised by some members of the community about whether approving the proposed amendment raised concerns about fairness and whether similarly situated parties were unjustifiably receiving different treatment.

The Board discussed the interplay between the proposed amendment to the .COM registry agreement and the Root Zone Maintainer Services Agreement (RZMA) approved by the Board on 9 August 2016. The Board considered whether the proposed resolutions needed to be revised to make sure the dates of the two agreements would be aligned as anticipated. After discussion, the Board took the following action:

Resolved (2016.09.15.09a), the text of the proposed resolution to amend the .COM registry agreement is modified to make approval of the amendment subject to the execution of the RZMA.

The Board adopted the following amended resolution regarding the proposed .COM amendment2:

Whereas, ICANN and Verisign engaged in discussions on a proposed amendment to the 1 December 2012 .COM Registry Agreement (“Amendment”) and agreed to extend the term of the Agreement to 30 November 2024 to coincide with the term of the Root Zone Maintainer Services Agreement in order to enhance the security, stability and resiliency of root zone operations.

Whereas, the proposed Amendment also requires Verisign and ICANN to cooperate and negotiate in good faith to: (1) amend the .COM Registry Agreement by the second anniversary date of the proposed Amendment in order to preserve and enhance the security of the Internet or the TLD; and (2) as may be necessary for consistency with changes to the Cooperative Agreement between Verisign and the U.S. Department of Commerce. All other terms and conditions in the existing Registry Agreement remain unchanged.

Whereas, ICANN commenced a public comment period from 30 June 2016 to 12 August 2016 <https://www.icann.org/public-comments/com-amendment-2016-06-30-en> on the proposed Amendment. Ninety-nine (99) comment submissions were posted by both individuals and organizations/groups.

Whereas, the Board carefully considered the comments and the staff summary and analysis of comments.

Whereas, ICANN conducted a review of Verisign’s recent performance under the current .COM Registry Agreement and found that Verisign substantially met its contractual requirements.

Resolved (2016.09.15.09b), the proposed amendment to the .COM Registry Agreement <https://www.icann.org/sites/default/files/tlds/com/com-amend-1-pdf-30jun16-en.pdf> is approved, subject to the RZMA being executed, and the President and CEO, or his designee(s), is authorized to take such actions as appropriate to finalize and execute the Amendment.

All members of the Board present voted in favor of Resolutions 2016.09.15.09a – 2016.09.15.09b. One member of the Board was unavailable to vote on the Resolutions. The Resolutions carried.

Rationale for Resolutions 2016.09.15.09a – 2016.09.15.09b

Why the Board is addressing the issue now?

On 1 December 2012, ICANN and Verisign, entered into a Registry Agreement under which Verisign operates the .COM top-level domain. The agreement is set to expire on 30 November 2018. ICANN and Verisign have negotiated a proposed Amendment, which was posted for a 42-day ICANN public comment period between 30 June 2016 and 12 August 2016. At this time, the Board is approving the proposed Amendment for the continued operation of .COM TLD by Verisign.

What is the proposal being considered?

The proposed Amendment: (1) extends the term of the .COM Registry Agreement to 30 November 2024 to coincide with the term of the Root Zone Maintainer Services Agreement (RZMA) between ICANN and Verisign; (2) commits Verisign and ICANN to cooperate and negotiate in good faith to amend the .COM Registry Agreement by the second anniversary date of the proposed Amendment in order to preserve and enhance the security of the Internet or the TLD; (3) commits Verisign and ICANN to cooperate and negotiate in good faith to amend the terms of the .COM Registry Agreement as may be necessary for consistency with changes to the Cooperative Agreement between Verisign and the U.S. Department of Commerce. All other terms and conditions of the existing Registry Agreement remain unchanged.

Which stakeholders or others were consulted?

ICANN engaged in bilateral negotiations with Verisign to agree to the terms of the proposed Amendment. The proposed Amendment was then published for public comment from 30 June 2016 to 12 August 2016. Following the public comment period, the comments were summarized and analyzed.

What concerns or issues were raised by the community?

There were 99 comment submissions from individuals and groups/organizations during the 42-day public comment period. Some commenters were generally supportive of the proposed Amendment while others raised concerns. A summary and analysis of the comments is provided below and also posted at <https://www.icann.org/en/system/files/files/report-comments-com-amendment-09sep16-en.pdf>.

What significant materials did the Board review?

As part of its deliberations, the Board reviewed various materials, including, but not limited to, the following materials and documents:

What factors has the Board found to be significant?

The Board carefully considered the public comments received for the proposed Amendment, along with the summary and analysis of those comments.

The Board acknowledges that some commenters were generally supportive of the proposed Amendment, and some expressed general support but also asked ICANN and/or Verisign to clarify the relationship of the Cooperative Agreement and proposed Amendment, particularly around pricing, and the provisions or topics that would be the subject of good faith negotiations by the second anniversary of the effective date of the proposed Amendment.

While the Board acknowledges the suggested changes to the proposed Amendment to specify what provisions will be discussed by the two-year anniversary of the proposed Amendment, the Board notes that the language as drafted in the proposed Amendment balances providing a commitment to engage in negotiations, while providing leeway to consider future topics related to preserving and enhancing the security and stability of the Internet or the TLD in this changing landscape.

With respect to revising the proposed Amendment to account for potential changes to, or cancelation of the Cooperative Agreement between Verisign and the Department of Commerce, the Board notes that the proposed Amendment already takes into account the Cooperative Agreement. The proposed Amendment includes language, requiring ICANN and Verisign to engage in good faith negotiations to make changes to the .COM Registry Agreement as may be necessary for consistency with changes to, or the termination or expiration of, the Cooperative Agreement.

The Board also acknowledges that there were several comments submitted relating to prices for .COM domain names. Some commenters suggested that the current price cap in the Registry Agreement must remain in place, while others recommended that prices must be reduced. The Board notes that Section 7.3(d) of the .COM Registry Agreement specifies the maximum price that Verisign can charge for registry services. The proposed Amendment does not change this provision.

The Board also acknowledges the comments submitted opposing the presumptive renewal right provision in the .COM Registry Agreement and suggestions that the presumptive renewal right should be taken away if certain events occur, such as an uncured material breach of the Registry Agreement. Others suggested that instead of extending the .COM Registry Agreement, it should be put out for a competitive public tender to ensure that the registrants are charged lower prices. The Board notes that the presumptive right of renewal in Section 4.2 of the .COM Registry Agreement is a provision that is in all of ICANN’s registry agreements. The provision allows a registry operator the right to renew the agreement at its expiration, provided that the registry operator is in good standing at the time of renewal as set forth under the terms of the presumptive renewal provision. This presumptive renewal provision is in place to ensure stability, security, and reliability in the operation of the TLD, i.e., to encourage long-term investment in robust TLD operations. This has served public interest by encouraging investment in the TLD registry infrastructure and improvements in reliability of the TLD operations. ICANN has previously described the rationale for presumptive renewal for registries: “Absent countervailing reasons, there is little public benefit, and some significant potential for disruption, in regular changes of a registry operator. In addition, a significant chance of losing the right to operate the registry after a short period creates adverse incentives to favor short-term gain over long-term investment. On the other hand, the community, acting through ICANN, must have the ability to replace a registry operator that is not adequately serving the community in the operation of a registry.”

The Board acknowledges the comments that the .COM Registry Agreement should be brought in line with new safeguards and intellectual property protections found in the New gTLD Registry Agreement. Some of the commenters noted that certain legacy gTLD Registry Operators have adopted the general form of the New gTLD Registry Agreement (e.g. .PRO, .CAT, .TRAVEL) including the additional enhancements and safeguards, and .COM should be required to do the same. Some suggested that not requiring .COM to be subject to the new enhancements, safeguards, and intellectual property protections in the New gTLD Registry Agreement raises concerns about whether ICANN is adhering to its core values related to non-discriminatory or preferential treatment, serving the public interest, transparency, and competition. The Board notes that the proposed Amendment posted for public comment is a simple extension of the current term of the agreement, and moving to the form of the new gTLD Registry Agreement would require longer discussion and community consultation. Proposing a simple Amendment at this time to extend the term of the .COM registry agreement is intended to maintain the stable, secure, and reliable operations of the .COM TLD.

The Board also notes that the proposed Amendment provides a provision that commits ICANN and Verisign to cooperate and negotiate in good faith to amend the .COM Registry Agreement by the second anniversary date of the proposed amendment in order to preserve and enhance the security of the Internet or the TLD. This language was negotiated to provide an opportunity for future discussions that may be needed to discuss potential changes to preserve and enhance the security of the Internet or the .COM TLD.

The Board acknowledges comments asking for confirmation that Verisign will be required to implement future developed consensus policies that may provide for additional safeguards and enhancements. The Board notes that Section 3.1 (b) of the .COM Registry Agreement states that, “At all times during the term of this Agreement and subject to the terms hereof, Registry Operator will fully comply with and implement all Consensus Policies found at http://www.icann.org/en/general/consensus-policies.htm, as of the Effective Date and as may in the future be developed and adopted in accordance with ICANN’s Bylaws and as set forth below.”

The Board acknowledges the comments that opposed the early renewal of the .COM Registry Agreement and the linkage to the Root Zone Maintainer Agreement (RZMA). These comments noted that the root zone maintainer infrastructure should never have become “inextricably intertwined” with Verisign’s .COM operations. Some questioned how linking the two agreements would enhance the security, stability and resiliency of root operations and argued that the linkage represents a single source of failure. These commenters urged ICANN technical staff to begin exploring how some practical separation between root zone and .COM technical operations might be achieved if that eventuality ever arises, and to assure that such action does not pose a threat to the security and stability of the DNS.

The Board notes that Verisign has been providing “registration services” under its Cooperative Agreement with NTIA for many years, which was broadly defined to include root zone maintainer function and .COM Top Level Domain registry services. Given the unified nature of these two functions under the Cooperative Agreement, much of the infrastructure supporting the root zone maintainer function is “intertwined” with Verisign’s TLD operations for .COM. A key component of ensuring security of the root operations was making sure that those operations continued to benefit from its historic association with the .COM operations. This was achieved by the proposed simple extension of the .COM Registry Agreement to coincide with the term of the new RZMA. While the terms of the agreements are linked together in the sense that they would expire at the same time, the agreements do not contain any provisions linking the performance of the obligations under the .COM Registry Agreement with the obligations under the RZMA. In fact, the Root Zone Maintainer Services Agreement (“RZMA”), approved by the ICANN Board on 9 August 2016, includes provisions that provide the community the ability – through a consensus-based, community-driven process – to require ICANN to transition the root zone maintainer function to another service provider three years after the effective date of the agreement.

The Board acknowledges the comments suggesting that not requiring .COM to be subject to the new enhancements, safeguards, and intellectual property protections in the New gTLD Registry Agreement raises concerns about whether ICANN is adhering to its core values related to non-discriminatory or preferential treatment, serving the public interest, transparency, and competition.

The Board notes that the Bylaws enumerate core values that should guide the decisions and actions of ICANN in performing its mission, and ICANN takes seriously its commitment to those values. As provided in the Bylaws, the “core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors that cannot be fully anticipated or enumerated; and because they are statements of principle rather than practice, situations will inevitably arise in which perfect fidelity to all eleven core values simultaneously is not possible. Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values.” When considering the comments and approval of the proposed Amendment, the Board has taken into consideration the relevant core values in order to balance the competing priorities.

The Board further acknowledges comments concerning competitive issues and providing a level playing field. Article II, Section 3 of ICANN’s Bylaws state, “ICANN shall not apply its standards, policies, procedures, or practices inequitably or single out any particular party for disparate treatment unless justified by substantial and reasonable cause, such as the promotion of effective competition.” The Board notes the .COM Registry Agreement contains many different terms that are not present in other registry agreements. These unique terms might be considered either favorable or unfavorable depending on one’s point of view. For example, the price control provision in Section 7.3 of the .COM registry agreement tightly controls the ability of the registry operator to raise prices in a manner that is not present in any other registry agreement.

Are there positive or negative community impacts?

ICANN conducted a review of Verisign’s recent performance under the current .COM Registry Agreement and found that Verisign substantially met its contractual requirements.

The Board’s approval of the proposed Amendment is intended to ensure the continued stable, secure, and reliable operations of the .COM TLD.

Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?

There is no significant fiscal impact expected if the Board approves the proposed Amendment.

Are there any security, stability or resiliency issues relating to the DNS?

There are no expected security, stability, or resiliency issues related to the DNS if the Board approves the proposed Amendment

 

20
Sep

ICANN Board Approves .Com RA Extension

ICANN has just released the Approved Board Resolutions from its meeting of Thursday, September 15th, and one of its major actions was to approve the proposed extension of the .Com registry Agreement (RA) through November 2024. The complete text of the Resolution and the rationale for its adoption can be found at the end of this post.

Wholesale prices of .Com domains are unaffected by the RA extension and remain frozen at $7.85 through the end of November 2018 under the terms of the separate Cooperative Agreement between Verisign and the NTIA. As the Department of Justice explained in an August 31st letter to Sen. Ted Cruz, once the RA is extended the NTIA will have full leeway to extend the price freeze through 2024.

ICA had filed a public comment, in which we indicated non-opposition to the proposed extension so long as it did not affect .Com pricing or get tied to policy decisions that should not properly be injected into contract negotiations between ICANN and registries.

As stated in the Executive Summary of ICA’s comment letter:

  • ICA has no objection to the proposed .Com RA extension as it simply provides the same additional six year contract term that Verisign would be entitled to in 2018 under its contractual right of presumptive renewal. It will have the salutary effect of preventing GDD staff from attempting to impose the URS and other new gTLD RPMs on .Com during a time when an active ICANN Working Group is exploring the policy question of whether any of these RPMs should become Consensus Policy applicable to legacy gTLDs.
  • Our non-objection is based on our understanding that the contract term extension will have no impact on the pricing of .Com domains, as the current price freeze they are subject to is contained in the separate Cooperative Agreement between Verisign and the NTIA.
  • While we have no general objection to ICANN’s practice of non-interference with the pricing policies of gTLD registries, we do believe that any registry’s abuse of pricing power should weigh against its right of presumptive renewal. We therefore believe that ICANN should amend all registry contracts to make clear that, at a minimum, a registry operator subject to successful government action for violations of antitrust or competition laws should face competitive rebid of its contract. Such amendment would further discourage all gTLD registries from engaging in abusive and anticompetitive market conduct.
  • While the proposed RA extension is justified by the present intermingling of .Com and Root Zone technical operations, given that the related RZMA between ICANN and Verisign contemplates the possibility of future termination or transition, we would urge ICANN to take steps to assure that the intermingling does not continue to such an extent that would make the exercise of those options technically infeasible or contrary to the security and stability of the DNS.

As ICA anticipated, trademark interests such as the International Trademark Association (INTA) and ICANN’s Intellectual Property Constituency (IPC) opposed approval of the proposed RA extension unless Verisign committed in advance to adopt the rights protection mechanisms (RPMs) created for the new gTLD program. Some new gTLD registry operators took a similar position. The question of whether those RPMs should become applicable to legacy gTLDs like .Com is presently being considered by an ICANN working group reviewing all RPMs in all gTLDs, and it is expected to issue a draft report and recommendations in mid-2017. That GNSO-created policy review group is the proper place for such issues to be transparently studied and decided, rather than in closed door negotiations between ICANN staff and registry operators.

In explaining its decision, the Board noted that some commenters had wanted the Board to specify what additional subjects should be discussed by ICANN and Verisign in potential negotiations between now and 2018, but it refused to do so, explaining:

While the Board acknowledges the suggested changes to the proposed Amendment to specify what provisions will be discussed by the two-year anniversary of the proposed Amendment, the Board notes that the language as drafted in the proposed Amendment balances providing a commitment to engage in negotiations, while providing leeway to consider future topics related to preserving and enhancing the security and stability of the Internet or the TLD in this changing landscape.

The Board also noted the comments that had called for it to impose the new gTLD RPMs as part of this approval, and explained why it had declined to do so:

The Board acknowledges the comments that the .COM Registry Agreement should be brought in line with new safeguards and intellectual property protections found in the New gTLD Registry Agreement. Some of the commenters noted that certain legacy gTLD Registry Operators have adopted the general form of the New gTLD Registry Agreement (e.g .PRO, .CAT, .TRAVEL) including the additional enhancements and safeguards, and .COM should be required to do the same. Some suggested that not requiring .COM to be subject to the new enhancements, safeguards, and intellectual property protections in the New gTLD Registry Agreement raises concerns about whether ICANN is adhering to its core values related to non-discriminatory or preferential treatment, serving the public interest, transparency, and competition. The Board notes that the proposed Amendment posted for public comment is a simple extension of the current term of the agreement, and moving to the form of the new gTLD Registry Agreement would require longer discussion and community consultation. Proposing a simple Amendment at this time to extend the term of the .COM registry agreement is intended to maintain the stable, secure, and reliable operations of the .COM TLD.

The Board’s explanation also contains this very relevant language:

The Board acknowledges the comments suggesting that not requiring .COM to be subject to the new enhancements, safeguards, and intellectual property protections in the New gTLD Registry Agreement raises concerns about whether ICANN is adhering to its core values related to non-discriminatory or preferential treatment, serving the public interest, transparency, and competition….When considering the comments and approval of the proposed Amendment, the Board has taken into consideration the relevant core values in order to balance the competing priorities.

The Board further acknowledges comments concerning competitive issues and providing a level playing field. Article II, Section 3 of ICANN’s Bylaws state, “ICANN shall not apply its standards, policies, procedures, or practices inequitably or single out any particular party for disparate treatment unless justified by substantial and reasonable cause, such as the promotion of effective competition.” The Board notes the .COM Registry Agreement contains many different terms that are not present in other registry agreements. These unique terms might be considered either favorable or unfavorable depending on one’s point of view. For example, the price control provision in Section 7.3 of the .COM registry agreement tightly controls the ability of the registry operator to raise prices in a manner that is not present in any other registry agreement.

Summing up, ICA commends the Board for not entangling a simple extension of the .Com RA intended to assure the security and stability of the DNS with policy decisions that are being properly addressed in an ongoing ICANN working group. Although the extension commits both ICANN and Verisign to engage in such additional discussions as are necessary for consistency with any changes to, or the termination or expiration of, the Cooperative Agreement between NTIA and Verisign, any such discussions will likely take place after the RPM Review WG has rendered its consensus on whether any of the new gTLD RPMs should become Consensus Policy and, equally important, whether any of them should be modified going forward.

*****

Text of ICANN Board Resolution and Rationale—

 

.COM Registry Agreement Amendment

Whereas, ICANN and Verisign engaged in discussions on a proposed amendment to the 1 December 2012 .COM Registry Agreement (“Amendment”) and agreed to extend the term of the Agreement to 30 November 2024 to coincide with the term of the Root Zone Maintainer Services Agreement in order to enhance the security, stability and resiliency of root zone operations.

Whereas, the proposed Amendment also requires Verisign and ICANN to cooperate and negotiate in good faith to: (1) amend the .COM Registry Agreement by the second anniversary date of the proposed Amendment in order to preserve and enhance the security of the Internet or the TLD; and (2) as may be necessary for consistency with changes to the Cooperative Agreement between Verisign and the U.S. Department of Commerce. All other terms and conditions in the existing Registry Agreement remain unchanged.

Whereas, ICANN commenced a public comment period from 30 June 2016 to 12 August 2016 <https://www.icann.org/public-comments/com-amendment-2016-06-30-en> on the proposed Amendment. Ninety-nine (99) comment submissions were posted by both individuals and organizations/groups.

Whereas, the Board carefully considered the comments and the staff summary and analysis of comments.

Whereas, ICANN conducted a review of Verisign’s recent performance under the current .COM Registry Agreement and found that Verisign substantially met its contractual requirements.

Resolved (2016.09.15.09), the proposed amendment to the .COM Registry Agreement <https://www.icann.org/sites/default/files/tlds/com/com-amend-1-pdf-30jun16-en.pdf> [PDF, 100 KB] is approved, subject to the RZMA being executed, and the President and CEO, or his designee(s), is authorized to take such actions as appropriate to finalize and execute the Amendment.

Rationale for Resolution 2016.09.15.09

Why the Board is addressing the issue now?

On 1 December 2012, ICANN and Verisign, entered into a Registry Agreement under which Verisign operates the .COM top-level domain. The agreement is set to expire on 30 November 2018. ICANN and Verisign have negotiated a proposed Amendment, which was posted for a 42-day ICANN public comment period between 30 June 2016 and 12 August 2016. At this time, the Board is approving the proposed Amendment for the continued operation of .COM TLD by Verisign.

What is the proposal being considered?

The proposed Amendment: (1) extends the term of the .COM Registry Agreement to 30 November 2024 to coincide with the term of the Root Zone Maintainer Services Agreement(RZMA) between ICANN and Verisign; (2) commits Verisign and ICANN to cooperate and negotiate in good faith to amend the .COM Registry Agreement by the second anniversary date of the proposed Amendment in order to preserve and enhance the security of the Internet or theTLD; (3) commits Verisign and ICANN to cooperate and negotiate in good faith to amend the terms of the .COM Registry Agreement as may be necessary for consistency with changes to the Cooperative Agreement between Verisign and the U.S. Department of Commerce. All other terms and conditions of the existing Registry Agreement remain unchanged.

Which stakeholders or others were consulted?

ICANN engaged in bilateral negotiations with Verisign to agree to the terms of the proposed Amendment. The proposed Amendment was then published for public comment from 30 June 2016 to 12 August 2016. Following the public comment period, the comments were summarized and analyzed.

What concerns or issues were raised by the community?

There were 99 comment submissions from individuals and groups/organizations during the 42-day public comment period. Some commenters were generally supportive of the proposed Amendment while others raised concerns. A summary and analysis of the comments is provided below and also posted at <https://www.icann.org/en/system/files/files/report-comments-com-amendment-09sep16-en.pdf> [PDF, 200 KB].

What significant materials did the Board review?

As part of its deliberations, the Board reviewed various materials, including, but not limited to, the following materials and documents:

What factors has the Board found to be significant?

The Board carefully considered the public comments received for the proposed Amendment, along with the summary and analysis of those comments.

The Board acknowledges that some commenters were generally supportive of the proposed Amendment, and some expressed general support but also asked ICANN and/or Verisign to clarify the relationship of the Cooperative Agreement and proposed Amendment, particularly around pricing, and the provisions or topics that would be the subject of good faith negotiations by the second anniversary of the effective date of the proposed Amendment.

While the Board acknowledges the suggested changes to the proposed Amendment to specify what provisions will be discussed by the two-year anniversary of the proposed Amendment, the Board notes that the language as drafted in the proposed Amendment balances providing a commitment to engage in negotiations, while providing leeway to consider future topics related to preserving and enhancing the security and stability of the Internet or the TLD in this changing landscape.

With respect to revising the proposed Amendment to account for potential changes to, or cancelation of the Cooperative Agreement between Verisign and the Department of Commerce, the Board notes that the proposed Amendment already takes into account the Cooperative Agreement. The proposed Amendment includes language, requiring ICANN and Verisign to engage in good faith negotiations to make changes to the .COM Registry Agreement as may be necessary for consistency with changes to, or the termination or expiration of, the Cooperative Agreement.

The Board also acknowledges that there were several comments submitted relating to prices for .COM domain names. Some commenters suggested that the current price cap in the Registry Agreement must remain in place, while others recommended that prices must be reduced. The Board notes that Section 7.3(d) of the .COM Registry Agreement specifies the maximum price that Verisign can charge for registry services. The proposed Amendment does not change this provision.

The Board also acknowledges the comments submitted opposing the presumptive renewal right provision in the .COM Registry Agreement and suggestions that the presumptive renewal right should be taken away if certain events occur, such as an uncured material breach of the Registry Agreement. Others suggested that instead of extending the .COM Registry Agreement, it should be put out for a competitive public tender to ensure that the registrants are charged lower prices. The Board notes that the presumptive right of renewal in Section 4.2 of the .COM Registry Agreement is a provision that is in all of ICANN’s registry agreements. The provision allows a registry operator the right to renew the agreement at its expiration, provided that the registry operator is in good standing at the time of renewal as set forth under the terms of the presumptive renewal provision. This presumptive renewal provision is in place to ensure stability, security, and reliability in the operation of the TLD, i.e., to encourage long-term investment in robust TLD operations. This has served public interest by encouraging investment in the TLD registry infrastructure and improvements in reliability of the TLD operations. ICANN has previously described the rationale for presumptive renewal for registries: “Absent countervailing reasons, there is little public benefit, and some significant potential for disruption, in regular changes of a registry operator. In addition, a significant chance of losing the right to operate the registry after a short period creates adverse incentives to favor short-term gain over long-term investment. On the other hand, the community, acting through ICANN, must have the ability to replace a registry operator that is not adequately serving the community in the operation of a registry.”

The Board acknowledges the comments that the .COM Registry Agreement should be brought in line with new safeguards and intellectual property protections found in the New gTLD Registry Agreement. Some of the commenters noted that certain legacy gTLD Registry Operators have adopted the general form of the New gTLD Registry Agreement (e.g .PRO, .CAT, .TRAVEL) including the additional enhancements and safeguards, and .COM should be required to do the same. Some suggested that not requiring .COM to be subject to the new enhancements, safeguards, and intellectual property protections in the New gTLD Registry Agreement raises concerns about whether ICANN is adhering to its core values related to non-discriminatory or preferential treatment, serving the public interest, transparency, and competition. The Board notes that the proposed Amendment posted for public comment is a simple extension of the current term of the agreement, and moving to the form of the new gTLD Registry Agreement would require longer discussion and community consultation. Proposing a simple Amendment at this time to extend the term of the .COM registry agreement is intended to maintain the stable, secure, and reliable operations of the .COM TLD.

The Board also notes that the proposed Amendment provides a provision that commits ICANN and Verisign to cooperate and negotiate in good faith to amend the .COM Registry Agreement by the second anniversary date of the proposed amendment in order to preserve and enhance the security of the Internet or the TLD. This language was negotiated to provide an opportunity for future discussions that may be needed to discuss potential changes to preserve and enhance the security of the Internet or the .COM TLD.

The Board acknowledges comments asking for confirmation that Verisign will be required to implement future developed consensus policies that may provide for additional safeguards and enhancements. The Board notes that Section 3.1 (b) of the .COM Registry Agreement states that, “At all times during the term of this Agreement and subject to the terms hereof, Registry Operator will fully comply with and implement all Consensus Policies found athttp://www.icann.org/en/general/consensus-policies.htm, as of the Effective Date and as may in the future be developed and adopted in accordance with ICANN’s Bylaws and as set forth below.”

The Board acknowledges the comments that opposed the early renewal of the .COM Registry Agreement and the linkage to the Root Zone Maintainer Agreement (RZMA). These comments noted that the root zone maintainer infrastructure should never have become “inextricably intertwined” with Verisign’s .COM operations. Some questioned how linking the two agreements would enhance the security, stability and resiliency of root operations and argued that the linkage represents a single source of failure. These commenters urged ICANN technical staff to begin exploring how some practical separation between root zone and .COM technical operations might be achieved if that eventuality ever arises, and to assure that such action does not pose a threat to the security and stability of the DNS.

The Board notes that Verisign has been providing “registration services” under its Cooperative Agreement with NTIA for many years, which was broadly defined to include root zone maintainer function and .COM Top Level Domain registry services. Given the unified nature of these two functions under the Cooperative Agreement, much of the infrastructure supporting the root zone maintainer function is “intertwined” with Verisign’s TLD operations for .COM. A key component of ensuring security of the root operations was making sure that those operations continued to benefit from its historic association with the .COM operations. This was achieved by the proposed simple extension of the .COM Registry Agreement to coincide with the term of the new RZMA. While the terms of the agreements are linked together in the sense that they would expire at the same time, the agreements do not contain any provisions linking the performance of the obligations under the .COM Registry Agreement with the obligations under the RZMA. In fact, the Root Zone Maintainer Services Agreement (“RZMA”), approved by theICANN Board on 9 August 2016, includes provisions that provide the community the ability – through a consensus-based, community-driven process – to require ICANN to transition the root zone maintainer function to another service provider three years after the effective date of the agreement.

The Board acknowledges the comments suggesting that not requiring .COM to be subject to the new enhancements, safeguards, and intellectual property protections in the New gTLD Registry Agreement raises concerns about whether ICANN is adhering to its core values related to non-discriminatory or preferential treatment, serving the public interest, transparency, and competition.

The Board notes that the Bylaws enumerate core values that should guide the decisions and actions of ICANN in performing its mission, and ICANN takes seriously its commitment to those values. As provided in the Bylaws, the “core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors that cannot be fully anticipated or enumerated; and because they are statements of principle rather than practice, situations will inevitably arise in which perfect fidelity to all eleven core values simultaneously is not possible. Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values.” When considering the comments and approval of the proposed Amendment, the Board has taken into consideration the relevant core values in order to balance the competing priorities.

The Board further acknowledges comments concerning competitive issues and providing a level playing field. Article II, Section 3 of ICANN’s Bylaws state, “ICANN shall not apply its standards, policies, procedures, or practices inequitably or single out any particular party for disparate treatment unless justified by substantial and reasonable cause, such as the promotion of effective competition.” The Board notes the .COM Registry Agreement contains many different terms that are not present in other registry agreements. These unique terms might be considered either favorable or unfavorable depending on one’s point of view. For example, the price control provision in Section 7.3 of the .COM registry agreement tightly controls the ability of the registry operator to raise prices in a manner that is not present in any other registry agreement.

Are there positive or negative community impacts?

ICANN conducted a review of Verisign’s recent performance under the current .COM Registry Agreement and found that Verisign substantially met its contractual requirements.

The Board’s approval of the proposed Amendment is intended to ensure the continued stable, secure, and reliable operations of the .COM TLD.

Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?

There is no significant fiscal impact expected if the Board approves the proposed Amendment.

Are there any security, stability or resiliency issues relating to the DNS?

There are no expected security, stability, or resiliency issues related to the DNS if the Board approves the proposed Amendment

 

 

13
Sep

.Com RA Extension on ICANN Board’s 9/15 Agenda

 

The “.COM Registry Agreement Amendment” is on the Main Agenda for this Thursday’s Regular Meeting of the ICANN Board.

The proposed extension of the RA was announced and put out for public comment on June 30th. The public comment period closed on August 12th and ICANN staff’s Report of Public Comments was due on September 15th, coincident with the Board meeting. The original due date for that staff Report was August 26th, but was pushed back to accommodate the large number of comments and the divergent views they expressed. ICANN staff, however, beat the September 15th deadline and filed their Report on September 10th.

The .Com RA is designed to synchronize the start and end dates of that Agreement with the new Root Zone Management Agreement (RZMA) that will be entered into by CANN and Verisign and take effect on the day of the IANA transition, currently scheduled for October 1st. If the transition is delayed by Washington political maneuvering that will of course affect the start dates for both the extended .Com RA and the RZMA.

In its announcement of the proposed extension, ICANN explained:

Verisign has been providing “registration services” under its Cooperative Agreement with NTIA, which was broadly defined to include root zone management functions and Top Level Domain registry services. Given the unified nature of the present Cooperative Agreement, much of the root zone infrastructure itself is inextricably intertwined with Verisign’s TLD operations for .com as discussed in greater detail in the blog.

The extension of the term of the .com registry agreement is intended to maintain stable, secure, and reliable operations of the root zone not only for direct root zone management service customers (Registry Operators, Registrars and Root Server Operators), but also to maintain the security and stability of the Internet’s domain name system.

The referenced blog post was penned by Global Domains Division (GDD) head Akram Atallah and further explained:

Given the unified nature of the present Cooperative Agreement, much of the root zone infrastructure itself is “inextricably intertwined” with Verisign’s TLD operations for .com: the servers that provide root services are hosted at every .com resolution site (over 100 locations). These servers share bandwidth, routing and monitoring with the .com operations, and the servers use the same code base as the .com TLD name servers and are operated and maintained by the same operation and engineering group. On the provisioning side, the root zone’s provisioning system is derived from the .com Shared Registration System (SRS), using the structure, schema, and software used for .com provisioning operations. Verisign builds and signs the root zone today using the same cryptographic facilities used for .com as well as signing software derived from that used for signing .com. Importantly, Verisign’s root zone operations are also within the .com’s Denial of Service attack detection and mitigation framework including independent internal and external monitoring and packet filtering at all layers. A key component of ensuring security of the root operations was making sure that those operations continued to benefit from its historic association with the .com operations.

As noted, the volume of public comments was heavy and the views contradictory.

A great many comments were generated by domain registrants under the wholly mistaken impression that the RA extension would somehow lift the current wholesale price freeze on .Com and allow Verisign to immediately double prices or more (a move that would likely attract the immediate attention of the Department of Justice’s Antitrust Division as well as the Federal Trade Commission for possible abuse of market power). But those comments were based on a false premise, as the .Com price freeze is contained in an entirely separate document, the Cooperative Agreement between Verisign and the National Telecommunications and Information Administration (NTIA). That agreement runs through the end of November 2018 and, as the Department of Justice recently explained in a letter to Sen. Ted Cruz:

As you may know, Verisign may not extend the .com Registry Agreement without obtaining NTIA’s prior written approval. Amendment 30 of the Cooperative Agreement requires such prior approval and provides the standard for NTIA’s review. In pertinent part, Amendment 30 provides: “[t]he Department [of Commerce] shall provide such written approval if it concludes that approval will serve the public interest in (a) the continued security and stability of the Internet domain name system and the operation of the .com registry … , and (b) the provision of Registry Services … offered at reasonable prices, terms, and conditions.” We note that the current extension proposal contemplated by ICANN and Verisign does not change the price cap contained in the 2012 .com Registry Agreement, which will remain in effect through November 30, 2018. Nor does the current extension proposal alter the price cap in Amendment 32 of the Cooperative Agreement. Moreover, if NTIA were to approve an extension of the .com Registry Agreement, it would have the right in its sole discretion to extend the term of the Cooperative Agreement with the current price cap in place until 2024 at any time prior to November 30, 2018, the date on which the Cooperative Agreement is currently scheduled to expire. If this occurs, the $7.85 fee cap would be extended another six years to 2024. (Emphasis added)

The Internet Commerce Association ICA), which represents professional domain investors, took a stance of non-opposition to the proposed RA extension. For one thing, the RA is virtually certain to be extended to 2024 when it comes up for renewal in 2018 under the terms of its presumptive renewal clause, so there’s no real harm in effecting that extension two years earlier.

And for domainers there is a net benefit, as an extension – as opposed to a renewal – would deny any negotiating leverage to GDD staff who have shown a propensity to illicitly inject themselves into the policy process by pushing for the general acceptance of certain contract revisions as legacy gTLD agreements come up for renewal, and specifically for the new gTLD Rights Protection Mechanism (RPM) of Uniform Rapid Suspension (URS), that are not Consensus Policy.

There is currently a GNSO Council-authorized working group, which I Co-Chair, that is specifically tasked under its Charter to review the efficacy of the new gTLD RPMs, recommend any adjustments, and only then consider the question of whether they should become Consensus Policy and thereby be applicable to legacy gTLDs like .Com. That standard GNSO Policy Development Process (PDP) is the proper and established route for deciding the applicability of the new RPMs to legacy gTLDs, which is clearly identified as a policy decision .

Specifically, ICA stated on this point:

“Further, changing the end date of the .Com RA through an extension now rather than a renewal in two years will have the salutary effect of depriving ICANN Global Domain Division (GDD) staff of any opportunity to seek the imposition of Uniform Rapid Suspension (URS) or any other new gTLD Rights protection Mechanisms (RPMs) through contractual imposition as they did in 2105 in regard to the RAs for .Cat, .Pro, and .Travel. While the Board later stated, in approving the amended RAs, that “the Board’s approval of the Renewal Registry Agreement is not a move to make the URS mandatory for any legacy TLDs, and it would be inappropriate to do so”, we have no assurance that GDD staff does not still hold its previously stated position that, “With a view to increase the consistency of registry agreements across all gTLDs, ICANN has proposed that the renewal agreement be based on the approved new gTLD Registry Agreement as updated on 9 January 2014.” Further, notwithstanding Reconsideration Requests filed with the Board Governance Committee (BGC) by ICA, the Business Constituency (BC), and the Non-Commercial Users Constituency (NCUC), the BGC let the imposition of URS by ICANN staff via contract renegotiation stand.

Extending the .Com RA through 2024 through the proposed extension, rather than via a negotiated renewal, will preserve the question of whether the URS and other new gTLD RPMs should become Consensus Policies applicable to legacy gTLDs for decision by the Working Group established to review all RPMs at all gTLDs – which is precisely where this key policy question should be fully and objectively considered and decided by the ICANN community.” (Emphasis in original)

ICA’s comment letter also suggested that the presumptive renewal clauses of all gTLDs should be reviewed and revised to constrain potential future pricing abuses, stating:

While we have no general objection to ICANN’s practice of non-interference with the pricing policies of gTLD registries, we do believe that any registry’s abuse of pricing power should weigh against its right of presumptive renewal. We therefore believe that ICANN should amend all registry contracts to make clear that, at a minimum, a registry operator subject to successful government action for violations of antitrust or competition laws should face competitive rebid of its contract. Such amendment would further discourage all gTLD registries from engaging in abusive and anticompetitive market conduct.

Trademark interests, for their part, saw the proposed extension as a means of bypassing the bottom-up, multistakeholder consensus policy process and imposing the new RPMs by ICANN staff fiat. The comments of the International Trademark Association (INTA) opposed the extension on these grounds:

INTA was hopeful that ICANN and Verisign would fill this gap and level the playing field by bilaterally negotiating the inclusion of the Relevant Terms when the .COM Registry Agreement was to be renewed in 2018.5 Yet in the proposed amendment to the .COM Registry Agreement that is the subject of the current public comment period, ICANN has proposed to mechanically extend that agreement until 2024, without any effort to update Verisign’s terms at all. Instead, the proposed amendment merely requires ICANN and Verisign to cooperate and negotiate in good faith sometime in the next two years to amend the agreement to preserve and enhance the security and stability of the Internet and of the .COM gTLD. That is not enough. ICANN should acknowledge that the Relevant Terms are essential to preserve and enhance the security and stability of the Internet and of the .COM gTLD, such that the requirement that ICANN and Verisign negotiate in good faith to add further amendments within a two-year time period includes a requirement to implement the Relevant Terms at that time. Given the importance of the Relevant Terms, that requirement should be explicit – not implicit.

The comments of ICANN’s Intellectual Property Constituency (IPC) took the same tack:

The proposed 6-year extension should be accompanied by steps to promptly bring the .com registry agreement into closer harmonization with ICANN’s other registry agreements, including those entered into with new gTLDs and many legacy gTLDs since 2013 in accordance with the multi-stakeholder process in furtherance of ICANN’s mission… IPC urges ICANN and Verisign to publicly commit to making these changes within the next two years as part of the “future amendments” provision of the .com registry agreement extension.

Sadly, neither the INTA nor IPC comments even notes the existence of the Working Group to Review all RPMs in all gTLDs, even though both entities and many of their members are actively participating in it (indeed, INTA’s immediate Past President is another of the WG’s Co-Chairs). In 2015, when GDD staff successfully pushed for the incorporation of the URS in the renewal agreements for the legacy registries of .Cat, .Travel and .Pro, both organizations justified that result on the thin grounds that the registries’ acquiescence was “voluntary”. Now even that fictional fig leaf has been abandoned, with both organizations now on record that the .Com extension should be approved only if Verisign involuntarily commits now to take that step within the next two years – regardless of the recommendations of the WG regarding the adoption of the new RPMs as Consensus Policy.

ICANN’s Business Constituency (BC), for its part, also favored application of the new RPMs to .Com, but recognized that this must be accomplished via proper policy channels. The BC comment stated:

The BC believes that .COM should embrace the standardized new gTLD registry agreement at this time, instead of deferring that decision until 2024 when the proposed agreement will expire; or earlier than 2024, if any or all of these aspects of the standard new gTLD registry contract should become Consensus Policy as a result of WG recommendations that are subsequently adopted by ICANN’s Board. The BC acknowledges that there is an open legal question whether any of these aspects can be enforced against .Com registrants unless they become Consensus Policies or are adopted through a further amendment of the .COM registry agreement made subsequent to the one we are addressing in this comment letter. (Note: ICA is a BC member and the author contributed to, but was not the lead drafter of, the BC comment)

New gTLD competitors of .Com also used the comment window as an opportunity to inject that market rivalry into the policy process. Portfolio new gTLD operator Donuts stated:

Donuts is opposed to the extension of ICANN’s agreement with Verisign in its proposed form. By simply renewing the .COM agreement under its current terms, ICANN and Verisign will have missed a significant opportunity to fulfill ICANN’s self-defined mandate to increase competition in the DNS marketplace and preserve the security, stability and resiliency of the DNS by bringing provisions of the .COM agreement more in harmony with the contracts governing new gTLDs and many other legacy gTLDs that recently have been renewed.

Likewise, new gTLD .XYZ took a similar position, adding to it the claim that it could reduce .Com wholesale pricing by more than eighty percent yet still operate the most important gTLD in  a fully reliable, stable, and secure manner:

XYZ is firmly opposed to this early extension. ICANN should not passively go along with Verisign’s selfish goal of extending its unfair monopoly over the internet’s most popular top-level domain name. Instead, ICANN should act in the spirit of its Bylaws and work with the NTIA and United State Department of Commerce to put the rights to operate the .COM top-level domain to a competitive public auction among capable internet registry operators for the benefit of the public… Currently, Verisign is able to charge $7.85 per annual registration of .com domain names.  However, this price is grossly out of line with the actual cost per registration to a registry operator for each incremental registration. If the right to operate .COM were put to a competitive public tender, the market would show that the .COM registration fees to registrars could be below $2.00 per registration. In fact, if XYZ <https://xyz.xyz/> were allowed to take part in such a competitive public tender, XYZ would be prepared to offer registration fees to registrars in the range of $1.00 per registration.  This is in line with the market rate for registry services, which XYZ is very familiar with. XYZ would not only be able to operate .COM charging only $1.00 per registration, but it would be able to do so with a healthy, but reasonable, profit margin and with no impact on the operational stability, reliability, security, and global interoperability of the internet.

The .Com price freeze was imposed by the NTIA in 2012 following a full competition review by DOJ’s Antitrust Division, making it difficult to conceive that government regulators would have allowed a wholesale price at least four times greater than what was required for sound registry operation. (In 2012 ICA urged NTIA to lower .Com wholesale prices to the then lower level in place for .Net, and then index future price increases to the CPI, but NTIA declined to go that far.)

As for putting the RA out for competitive rebid, NTIA approved the then controversial presumptive renewal clause of the .Com RA ten years ago, in 2006, and since then essentially identical language has been incorporated into the standard new gTLD registry agreement. Absent a material and subsequently uncured breach of its registry agreement, both Verisign and every new gTLD operator would have grounds to immediately sue ICANN if it attempted to open their RAs to competitive rebid – and that situation will stand until either the Registry Stakeholder Group volunteers to rewrite that clause (a doubtful proposition), or antitrust regulators find the near-guarantee of perpetual renewal to undermine market competition.

Summing up, if the technical intertwining of the operation of the .Com registry and the management of the root zone functions justify aligning their contractual start and renewal dates then the ICANN Board should approve the RA extension on those merits alone and leave other issues to be settled in their proper forums.

That means that:

  • The imposition of new gTLD RPMs on legacy gTLDs should await the recommendations of the GNSO WG that is currently charged with addressing that issue – a major policy issue that should not be settled by GDD staff via contract negotiations.
  • .Com wholesale pricing should be reviewed by NTIA in consultation with the DOJ as the renewal date for the Cooperative Agreement approaches in November 2018.
  • Competition between .Com and “not com” new gTLDs should take place in the marketplace, where new gTLDs have already achieved millions of collective registrations.
  • Any adjustments of the presumptive renewal clauses in all gTLD agreements, including changes that address anticompetitive pricing behavior, should be addressed by ICANN through an open and transparent process that considers all relevant interests and objectives, and is not just a closed door negotiation between ICANN and registries.

 

 

 

 

 

2
Sep

DOJ to Cruz: .Com Price Freeze can be Extended to 2024

On August 31st the Department of Justice (DOJ) sent a response to the August 12th letter from Senator Ted Cruz and some Congressional colleagues to the head of the Antitrust Division. In that letter Cruz et al asserted that if the pending extension of the .Com registry Agreement (RA) was granted in combination with the consummation of the IANA transition, that DOJ could be prevented from having “meaningful input into the prices that Verisign charges for registering a domain name within the .com domain for an extended period”. Based on that assertion, Cruz and his colleagues requested DOJ “to conduct a thorough competition review of the agreement before any oversight transition is undertaken and any agreement extension is approved”.

DOJ’s response makes clear that it will retain meaningful input into .Com pricing after the occurrence of either the .Com RA extension, IANA transition, or both; and that the National Telecommunications and Information Administration (NTIA), in consultation with DOJ, can extend the .Com wholesale price freeze through 2024 if it chooses to do so.

The operative part of the letter states:

As you may know, Verisign may not extend the .com Registry Agreement without obtaining NTIA’s prior written approval. Amendment 30 of the Cooperative Agreement requires such prior approval and provides the standard for NTIA’s review. In pertinent part, Amendment 30 provides: “[t]he Department [of Commerce] shall provide such written approval if it concludes that approval will serve the public interest in (a) the continued security and stability of the Internet domain name system and the operation of the .com registry … , and (b) the provision of Registry Services … offered at reasonable prices, terms, and conditions.” We note that the current extension proposal contemplated by ICANN and Verisign does not change the price cap contained in the 2012 .com Registry Agreement, which will remain in effect through November 30, 2018. Nor does the current extension proposal alter the price cap in Amendment 32 of the Cooperative Agreement. Moreover, if NTIA were to approve an extension of the .com Registry Agreement, it would have the right in its sole discretion to extend the term of the Cooperative Agreement with the current price cap in place until 2024 at any time prior to November 30, 2018, the date on which the Cooperative Agreement is currently scheduled to expire. If this occurs, the $7.85 fee cap would be extended another six years to 2024. (Emphasis added)

The DOJ response does not commit it and NTIA to take any particular action on .Com pricing prior to the current November 2018 termination of the Cooperative Agreement (CA), but it does make clear that NTIA has the discretionary power to extend the CA and the price freeze that it contains. NTIA could undertake such an extension if the Boards of both ICANN and Verisign approve the RA extension, as the letter makes clear that the extension requires NTIA review and approval before it can take effect. However, NTIA may well decide to leave the decision on whether to extend the CA and retain or adjust the price freeze to the next Administration, and that decision will likely be based upon a full review by the Antitrust Division.

In a related development on the antitrust front, ICANN General Counsel John Jeffrey has just sent a letter to the Wall Street Journal stating:

The Internet Corporation for Assigned Names and Numbers (ICANN) does not enjoy an “antitrust exemption.” ICANN is not, and never has been exempted from antitrust lawsICANN has not been granted an antitrust exemption by any of its contracts with NTIA. No ruling in ICANN’s favor has ever cited an antitrust exemption as the rationale.(Emphasis added)

That belts-and-suspender concession comports with the views of most antitrust experts that ICANN’s claim to an antitrust exemption was tenuous at best even when the U.S. government exercised direct oversight of the organization, was substantially diluted when the relationship loosened under the current Affirmation of Commitments, and would conclusively disappear entirely upon consummation of the IANA transition. However, that position is at complete odds with the one that ICANN took as recently as 2012, in a lawsuit brought by YouPorn owner Manwin Licensing in regard to the then-controversial .XXX gTLD, when it asserted (and when Mr. Jeffrey was likewise General Counsel):

ICANN cannot, as a matter of law, be liable under the antitrust laws with respect to the conduct alleged in the Complaint because ICANN does not engage in “trade or commerce.”…[ICANN] does not sell Internet domain names, it does not register Internet domain names, and it certainly is not an Internet pornographer. ICANN does not make or sell anything, it does not participate in any market, and its Bylaws expressly forbid it from participating in any of the markets referenced in the Complaint.(Emphasis added)

That antitrust immunity was rejected a few months later by the Federal District Court hearing the litigation, when it decisively stated:

The Court finds the transactions between ICANN and ICM described in the First Amended Complaint are commercial transactions.

ICANN established the .XXX TLD. ICANN granted ICM the sole authority to operate the .XXX TLD. In return, ICM agreed to pay ICANN money.

This is “quintessential” commercial activity and it falls within the broad scope of the Sherman Act. Even aside from collecting fees from ICM under the contract, ICANN’s activities would subject it to the antitrust laws. (Emphasis added)

Given that in the intervening four years ICANN has established more than a thousand additional gTLDs for which it collected a third of a billion dollars in application fees and receives continuing fees from, and that the impending IANA transition will sever the final tangential relationship between the U.S. government and ICANN, this week’s antitrust concession may well reflect a decision by ICANN Legal that it no longer made sense to play a losing hand – especially when assertions of weakened DOJ antitrust authority threaten to delay or scuttle the transition.

So the clear weight of these important letters is that the .Com wholesale price freeze will stay in place and can be extended by NTIA through 2024, and that ICANN has abandoned any claim to antitrust immunity.