ICA on the Record at the Durban Public Forum –Time to “Walk the Walk” on Registrant Rights and Due Process

The following consist of a prepared statement delivered by ICA Counsel Philip Corwin at the ICANN Public Forum in Durban today, plus the raw transcript of the subsequent interchange —

 

Good afternoon. Philip Corwin, Counsel to the Internet Commerce Association.

Several weeks ago CEO Chehade stated that domain registrants were ICANN’s primary customer. We welcomed that recognition.

Yet while he talked that talk, we have just seen ICANN retreat from walking that walk.

I’ll cite two examples.

At the Beijing Public Forum we asked if ICANN intended to implement the unanimous STI-RT recommendation that URS providers be placed under standard contract. One month later ICANN answered our question in writing and said “yes”, a contract was under development.

But when we asked at yesterday’s URS session about the contract’s status, ICANN staff stated that no contract was contemplated. This breach of a written commitment is unacceptable.

Second, in regard to the new RAA contract, we filed comments supporting the NCSG’s position that the Statement of Registrant Rights and Responsibilities should be strengthened. ICANN’s response was to leave the substance unchanged — but downgrade “rights” to “benefits” in the title.

Words do matter. Rights are enshrined in Constitutions and Universal Declarations – Benefits are doled out by social welfare programs.

We bring these retreats on registrant due process and substantive rights to the Board’s attention with the aim of working with you and staff to match reality to rhetoric in the days ahead.

Thank you very much for your attention.

>>STEVE CROCKER: THANK YOU. DO WE HAVE A MANAGEMENT REPLY? GO AHEAD.
>> WE HAVE MOUs, MEMORANDUMS OF UNDERSTANDING WITH OUR URS PROVIDERS. I’M LOOKING TO THE LEGAL TEAM TO CONFIRM THAT. SO WE DO HAVE AGREEMENTS IN PLACE WITH THE URS PROVIDERS. IN TERMS OF CONTRACTS SO PERHAPS MR. WAS A MISUNDERSTANDING ABOUT THAT. I WASN’T PART OF THOSE WRITTEN COMMUNICATIONS BUT WE CAN CERTAINLY GO BACK AND LOOK AT THE COMMUNICATIONS AND CLARIFY ANY MISSTATEMENTS.
>>PHIL CORWIN: WELL, MAY I RESPOND THAT MY QUESTION IN BEIJING ON THE RECORD WAS QUITE CLEAR IN STATING THAT I DID NOT VIEW ON BEHALF OF MY CLIENT, THE MOU TO CONSTITUTE AN ENFORCEABLE CONTRACT AND ASKED IF SOMETHING BIGGER WITH ENFORCEMENT PROVISIONS WAS FORTHCOMING. AND THAT WAS THE QUESTION THAT ICANN ANSWERED IN WRITING A MONTH LATER. SO MY QUESTION WAS QUITE CLEAR THAT I WAS NOT REFERRING TO THE MOU. AND THE RESPONSE I HAD ASSUMED, TOOK THE FULL SUBSTANCE OF THE QUESTION INTO ACCOUNT.
>>STEVE CROCKER: AMY?
>>AMY STATHOS: SO PHIL, I UNDERSTAND YOUR POINT. BUT JUST TO CLARIFY THAT AN MOU IS A CONTRACT. I UNDERSTAND THAT YOU DON’T NECESSARILY RECOGNIZE THAT AS THE FULL CONTRACT THAT YOU WERE CONTEMPLATING OR THAT HAD BEEN CONTEMPLATING BUT THAT IS A CONTRACT AND IT CALLS AND REQUIRES THE URS PROVIDERS TO COMPLY WITH ALL THE RULES AND PROCEDURES THAT ARE IN THE GUIDEBOOK. SO IN FACT IT DOES ACTUALLY REQUIRE THEM TO COMPLY WITH THE PROCEDURES AS WELL AS THE RULES THAT HAVE BEEN DEVELOPED IN THE PROCESSING OF THE URS PROCEDURE.
>>PHIL CORWIN: FINAL QUICK RESPONSE. I DON’T WANT TO HOLD UP THE OTHERS. BUT WHEN YOU ANSWER A QUESTION THAT A CONTRACT IS BEING DEVELOPED, WHEN THE MOU EXISTED BEFORE MY QUESTION WAS RAISED IN BEIJING, I DON’T SEE HOW SOMETHING COULD HAVE BEEN IN DEVELOPMENT WHEN IT PRE-EXISTED THE QUESTION. THANK YOU.
[APPLAUSE.] >>STEVE CROCKER: THANK YOU

 

 

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