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FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC

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ALAC Statement on the Revised Public Interest Commitments Dispute Resolution Procedure (PICDRP)

The ALAC appreciates the radical changes made to the PICDRP in response to the comments of the first draft. The process seems far more appropriate for addressing potential harms caused by a registry’s failure to honour the Public Interest Commitment aspects of their registry agreements. Placing contract enforcement within ICANN and the removing the need to pay for the privilege of reporting a contractual infringement sends a far better message regarding ICANN’s attitude towards contractual compliance. The ALAC particularly supports the concept of taking action against repeat offenders.

However, the ALAC still firmly believes that this process does not address the PUBLIC INTEREST aspect of Public Interest Commitments.

There must be a provision for allowing reports of PIC violations, and particularly substantive PIC violations without the need to demonstrate harm. Possible sources of such reports must include:

• Governments on behalf of their citizens
• Applicable industry regulators, licensing bodies and similar organizations
• Consumer protection and similar organizations
• Registrants
• Internet users

A significant aspect of the PIC is to ensure registrant and Internet user trust in the TLD, and to disallow reports of the perceived loss of that trust greatly lessens the benefit of the PIC, and could serve to make them completely ineffective.

The ALAC understands that removing the need to demonstrate harm has the potential for increasing the number of reports that ICANN must respond to, and the ALAC is prepared to work with ICANN to develop reasonable controls to lessen the potential for ICANN devoting unreasonable efforts on addressing capricious or frivolous complaints. To address the need to reasonably limit the resources that ICANN must devote to such cases, it might be acceptable that a single registrant or user report does not trigger a full-blown investigation, but mechanisms must be put in place to ensure that patterns are recognized and swift action is taken if the very trust that the PIC is supposed to engender is not there. Any such rules must err on the side of welcoming reports of PIC non-compliance, not rejecting them. ICANN has a past history of not being concerned with compliance-related complaints from individuals, and this MUST not be replicated with regard to PICs.

The ALAC understands and generally supports the level of flexibility that ICANN has built into this version of the PICDRP regarding penalties for PIC violations. However, to balance that and create a level of confidence that ICANN is taking the PICs seriously and that violations are not being treated lightly, there must be a high level of public reporting on the entire PIC reporting and enforcement process. Transparency is key to ensuring faith in the system; publication of PIC infractions would be a very effective method of encouraging registries to honour their PICs.

The ALAC also offers the following more specific comments on the terms within the PICDRP:

• The use of the undefined term “good standing” is both vague and inappropriate. If there are criteria under which ICANN will decide to not follow up on a report, they must be clearly stated and subject to appeal.
• There should be no requirement for interaction between a Reporter and Registry if the complaint issues identified in the report are factually identifiable; there is no need to negotiate evidence-based issues.
• Although perhaps obvious to some, it should be explicit that the Standing Panel will include one or more members with clear understanding of Public Interest issues.

Although this document is specifically on the process by which ICANN will address third-party reports on PIC violations, it is essential that ICANN makes it clear that ICANN may as well choose to take action against PIC violations purely on its own accord.

FIRST DRAFT SUBMITTED

AG Comment: After hearing the comments regarding the new DRP draft and before I actually read it, I was expecting to see a document that had some minor changes from the earlier version. Instead I found a completely new process that bore virtually no resemblance to the earlier one. The requirement to demonstrate harm is still there, and that forms the basis for this comment. But the process has been largely brought in-house, with no dispute process provider and no fees, and as such is MUCH more amenable to addressing our concern for enforcing the PUBLIC INTEREST part of Public Interest commitments.

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