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The ALAC extends its congratulations to all parties on completion of the negotiations for the RAA and accompanying documents (the Contract).  The ALAC’s Statement of March 2013 on the draft ContractThe ALAC Statement on the Revised New gTLD Registry Agreement Including Additional Public Interest Commitments Specification outlined a position which generally supported ICANN’s posture on certain contentious issues even as we signaled our qualified acceptance. While we are inclined to support all the major accompanying documents with the Contractthe 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 Statement records our qualified support for the Final RAA 2013 as published.

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 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. 

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We give our full support for the Consensus Policies and Temporary Policies Specification. In the matter of the so-called ‘right to unilaterally amend the RAA’, we believe the updated construct per Clause 6.5 incorporates additional safeguards and attracts our endorsement. NotwithstandingNevertheless, 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 asthe 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 on top of the ALAC Agenda agenda for the RAA. The completeness, accuracy and accessibility of Whois data (information required under Clause 3.3.1 of the RAA) 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 - , i.e. the beneficial user (which is 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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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.

The ALAC is on record <link the ALAC Statement on WHOIS Review Final Report> supporting  supporting a regulated privacy/proxy service for domain name registration. And while the Specification is short on details, we welcome a 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 this new development which that covenants Registrars to account for Resellers under this contract. 

 Our Our key advice for all this remains: proxy/privacy service providers should only be accredited to the extent they meet all relevant RAA requirements (including accuracy and verification of Whois information for the beneficial users of the domain name) 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.

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On balance, the ALAC accepts this 2013 RAA 2013 as marked improvement on the 2009 Agreement and the ALAC looks forward to continued participation in the evolution of a contract vehicle consonant consistent with our commitment to be the watchdog of the global public interest. We also strongly believe that all stakeholders - , including the ALAC community - , should have at least a 'watching brief' on any further development of the RAA and the accompanying documents.

FIRST DRAFT SUBMITTED by Carlton Samuels with contributions by Holly Raiche

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