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The final draft version to be voted upon by the ALAC will be placed here before the vote is to begin.

FIRST DRAFT SUBMITTED by Carlton Samuels with contributions by Holly Raiche

The ALAC extends its congratulations to all parties on completion of the negotiations for this contract. The ALAC’s Statement of March 2013 on the Draft Contract outlined a position which generally supported ICANN’s posture on certain contentious issues even as we cautioned our qualified acceptance. While we are inclined to support all the major Heads of Agreement in the Final Contract, the details of some specifications very critical to deciding our full support remain in limbo. The Privacy/Proxy Specifications is one such example. And until such time as these are decided, this statement records our qualified support for the Final RAA 2013 as published.  

Regarding the structure of the Agreement, we are unanimous that the structure of this contract competently delineates commitments of ICANN and Registrars as well as the issues that require strong agreement, thus bringing much needed clarity on its purpose. We recognize the efforts to forge a stronger statement on conditions for changing the relationship midstream, including termination of the agreement. This development has our full endorsement, although it would have been helpful if some examples of ‘material breach’ were enumerated.  All this aside, we were among those who lamented the severe restrictions on some stakeholder parties from the negotiating sessions and even at this stage, we remain convinced it was unwise to exclude the community from even an active ‘watching brief’ of the negotiations for a contract intended to be an embodiment of consensus policies and around which so many stakeholder interests converge.

We give our full support for the Consensus Policies and Temporary Policies Specification. In the matter of so-called ‘right to unilaterally amend the RAA’, we believe the updated construct per Clause 6.5 incorporates additional safeguards and attracts our endorsement.  Notwithstanding, some have argued the intent in this clause undermines the consensus policymaking that has produced this RAA. We disagree and take a different and more benign view of the role reserved for ICANN, the public benefit corporation. For the first time at last, the topics and areas pertinent to the RAA that are within the purview of consensus policy making are unambiguously defined.  The contract is intended, among other things, to protect and defend the global public interest.  The language of Clause 1.4.4 acknowledges Consensus Policies - or the procedures derived from them - shall not “Modify ICANN’s obligations to not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably”.  The converse is equally true: the language also embraces the notion that there are matters outside of the consensus policy domain for which the Board has a duty of care and is empowered to act in protecting the global public interest.

Whois-related matters remain top of the ALAC Agenda for the RAA.  On the whole, the ALAC favours an Accuracy Specification, inclusive of verification for all contact data defined in the Registration Data Directory Service [Whois]. The ALAC therefore supports the WHOIS Accuracy Program Specification (the Specification) improvements in requirements imposed on Registrars for the completeness and accuracy of Whois Data, as required under clause 3.3.1 of the RAA. We fully endorse the requirement compelling Registrars to suspend the registration of the Registered Name Holder in circumstances where the Whois contact information cannot be verified.  The ALAC is concerned that “account holder’ is relieved of a similar requirement if there is no affirmative response from the ‘account holder'. The ALAC believes that a similar enforcement regime should be instituted and advise suspension of the registration in this case as well.  We also note that verification requirements in the Specification include contact information relating to the phone, email and postal address.  However, the Whois requirements relating to phone and email contact information are only for the Registered Name Holder’s admin and technical support contacts.  (Clauses 3.3.1.7-3.3.1.8) The only contact details required of the ‘Registered Name Holder’ is for a postal address.

We also support the extension of specification requirements to verify contact details of what the specification calls the 'account holder paying for the Registered Name' as well, even as we recognize some challenges with its practical implementation. We understand the intent of the requirement on ‘account holders’ is to be able to contact Registered Name Holders who may be using privacy or proxy services, or otherwise not be easily contacted through using Whois data. We hold ‘account holder’ identity will vary, depending on corporate arrangements within a Registered Name Holder as well as varying payment arrangements of different Registrars. So that clarity is achieved in these verification requirements, the ALAC advise and recommend that the term ‘account holder' should be defined in the Specification as the individual or organisation that has the beneficial use of the Registered Name.  That will ensure that contact details relating to the Registered Name Holder are available, regardless of varying payment arrangements. 

The ALAC is on record <link the ALAC Statement on WHOIS Review Final Report> supporting a regulated privacy/proxy service for domain name registration.  And while the Specification is short on details, we welcome declaration of the intent to formally develop and extend rules governing the provisioning of proxy/privacy services. The ALAC notes and gives full endorsement to the new development which covenants Registrars to account both Resellers and Proxy/Privacy Service providers under this contract.   Our key advice for all this remains: proxy/privacy service providers may only be accredited to the extent coverage of all relevant requirements of this Agreement is fully extended to those accredited and they accept strict liability for all other pertinent covenants. Under the circumstances, it seems rational that redress and accounting damages attributable to privacy/proxy services may be best achieved by explicit recognition of third party rights in this Specification.

We applaud and affirm the contractual obligation imposed on Registrars to support future development in Whois specifications, inclusive of an ability to develop centralized Whois service across all Registrars. We believe such a development it is the global public interest and a feature of comprehensive approach to retain confidence in the domain name system.

On balance, the ALAC accepts this RAA 2013 as marked improvement on the 2009 Agreement and looks forward to continued participation in the evolution of a contract vehicle consonant with our commitment to be the watchdog of the global public interest.

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The completeness, accuracy and accessibility of Whois data is critical for Internet users: for consumers dealing with online providers of products and services, for trademark holders, for corporate and communications regulators and for law enforcement agencies. The ALAC position is that all ‘Whois’ information for the actual holder of the domain name - the beneficial user (a term in the proposed privacy and proxy specification) should be complete and verified. If verification is not possible, the registration should be suspended.

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