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Comment: Migrated to Confluence 5.3
Comment Close
Date
Statement
Name 

Status

Assignee(s) and
RALO(s)

Call for
Comments
Call for
Comments
Close 
Vote
Announcement 
Vote OpenVote
Reminder
Vote CloseDate of SubmissionStaff Contact and EmailStatement Number
28.03.2013Proposed 2013 RAA Posted for CommentAdopted
14Y, 0N, 0A 
Alan Greenberg (NARALO)28.03.201309.04.2013n/a11.04.2013
(ALAC Meeting in Beijing) 
n/a11.04.201311.04.2013Samantha Eisner
samantha.eisner@icann.org
AL/ALAC/ST/0413/3
Comment / Reply Periods (*)
Comment Open Date: 
7 March 2013
Comment Close Date: 
28 March 2013 - 23:59 UTC
Reply Open Date: 
29 March 2013
Reply Close Date: 
19 April 2013 - 23:59 UTC
Important Information Links
Brief Overview
Originating Organization: 
ICANN
Categories/Tags: 
  • Contracted Party Agreements
Purpose (Brief): 

ICANN is seeking public comments on a Proposed 2013 Registrar Accreditation Agreement (RAA), particularly on areas where ICANN and the Registrar Negotiating Team have not been able to reach agreement in principle. This represents the first time in the nearly 18 months of negotiations that community comment is formally sought on this document.

Current Status: 

ICANN and the Registrar Negotiating Team commenced negotiation on amendments to the RAA in October 2011. While the documents posted today show many areas of agreement, there are differences between theICANN and Registrar positions are highlighted. In addition, further discussion is still ongoing regarding some of the specifications to the agreement.

Next Steps: 

After review of the comment received, the proposed 2013 RAA will be reviewed to determine if further changes are warranted. In addition, ICANN and the Registrar NT are likely to continue discussions regarding the areas where the specifications remain open. The ultimate goal is to have a 2013 RAA completed and approved in the near future.

Staff Contact: 
Samantha Eisner, Senior Counsel
Detailed Information
Section I: Description, Explanation, and Purpose: 

After nearly 18 months of negotiations, ICANN is posting a new version of the proposed 2013 Registrar Accreditation Agreement (RAA) for public comment.

The Registrar Negotiating Team (NT) has continued to engage in good faith negotiations to understand ICANN's perspective with respect to the outstanding issues, and to share the often divergent positions within the Registrar Stakeholder Group. Recently, additional revisions were proposed by ICANN's Negotiating Team stemming from the call by ICANN's CEO, Fadi Chehadé, to work to improve the image of the domain industry and to protect registrants through a further updated contractual framework. The Registrar NT considered each of these new issues, and worked towards finding solutions where appropriate. The RAA posted today reflects hard-fought concessions on many of key issues raised throughout the negotiations, and highlights issues remaining in order for the final 2013 RAA agreement to be reached.

Throughout the RAA and its Specifications, there are portions where two versions of draft text appear side by side. These highlight areas whereICANN and the Registrars have not been able to reach agreement in principle on an issue, therefore both positions are provided for comment. Unless otherwise noted, the remainder of the document reflects agreements in principle among ICANN and the Registrar NT.

A fuller discussion of the status of negotiations and areas of difference is available in ICANN's RAA Posting Memorandum [PDF, 66 KB].

Section II: Background: 

The current round of negotiations over the RAA began in October 2011. ICANN and the Registrar Negotiation Team have presented updates to the community at each of ICANN's public meetings since that time. Information on the history of the negotiations, including previously released documentation, is available at the community wiki athttps://community.icann.org/display/RAA/Negotiations+Between+ICANN+and+Registrars+to+Amend+the+Registrar+Accreditation+Agreement. This includes the group of documents posted in June 2012, which demonstrated the progress to date in the negotiations.

Section III: Document and Resource Links: 

There are multiple documents for review as part of this posting. The new RAA is anticipated to be a base document with a series of specifications attached. This posting includes all documents that are currently anticipated to be part of the 2013 a. As noted above, a fuller discussion of the status of negotiations and areas of difference is available in ICANN's RAA Posting Memorandum [PDF, 66 KB].

The base RAA documents:

The Specifications and Addendums:

For the Consensus and Temporary Policy Specification, the Data Retention Specification, and the Whois Accuracy Program Specification, each is available in annotated format to show where differences remain with the registrars, as well as redlines showing the differences in the documents from the 2012 posting.

For the remaining specifications to the RAA, the versions below are provided as ICANN's latest proposal. The Registrar Negotiation Team is still considering each of these specifications:

Section IV: Additional Information: 
None

(*) Comments submitted after the posted Close Date/Time are not guaranteed to be considered in any final summary, analysis, reporting, or decision-making that takes place once this period lapses.

FINAL VERSION TO BE SUBMITTED IF RATIFIED

Please click here to download a copy of the PDF below.

PDF
nameALAC Statement on the Proposed 2013 RAA Posted for Comment.pdf

 

FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC

ALAC Statement on the RAA as posted 7 April 2013

The ALAC is generally supportive of the RAA and associated specifications as posted for comment. Moreover, the ALAC is generally in agreement with ICANN on the issues where ICANN and Registrars disagree.

The proposed RAA is much better than its predecessor. It provides clarity where previously obscurity and even obfuscation ruled, and many of the omissions of earlier RAAs have been addressed. All parties in the current round of negotiations are to be congratulated.

The ALAC is particularly pleased to see the new sections on Privacy and Proxy registrations; resellers; the Whois Accuracy Program Specification; uniformity of Whois; and a clear, concise simple-language statement of registrant rights and responsibilities.

On a process level, the ALAC wishes to commend ICANN staff for presenting this information in such a way and with multiple views so as to make this very complex set of documents and the differing viewpoints comprehensible.

That being said, there are a number of issues where:

-          the ALAC is uncomfortable with the position that ICANN has taken;

-          the ALAC believes that additional changes are necessary.

ALAC positions on disputed terms or sections requiring additional change

Issue

ALAC Position

RAA 3.3.1 – Registrar port 43 access for thick registries

The ALAC does not have a strong position on this, but some members believe that in the absence of a compelling reason from ICANN as to why the port 43 service should be maintained for thick registries, the registrar position is reasonable. Given the current PDP on using a Thick Whois for all registries, the ALAC suggest a middle ground. Specifically, that RAA 3.3.1 require that Registrars provide port 43 access as long as there are Thin registries in existence. If and when there are no longer any Thin registries, Registrars will no longer be required to provide Port 43 access.

RAA 6.3 – Special Amendment by ICANN without Registrar approval

The ALAC is sympathetic with the rationale for this clause. Specifically, the regular amendment process which can and apparently does take several years, followed by up to five years delay before all registrars are subject to the new RAA is simply too long to address issues that have “substantial and compelling need”. ICANN as the custodian of the domain name system cannot allow problems that undermine the public interest to exist without taking action. Although the ICANN Board already has the authority to enact policy where the stability or security of the DNS is impacted, not all problems that need addressing meet security/stability criteria.

Although ICANN is not a formal “regulator” it is in a position where it must have the tools to act in ways similar to a regulator when the public interest is threatened.

That being said, the concept of a unilateral change is not one that many in At-Large feel comfortable with. The ALAC urges ICANN and Registrars to find some common ground that will allow the RAA to be changed in the middle of five-year contracts, similar to how it does for formal Consensus Policies (CP), but for issues that are not subject to CP or where the PDP route is simply too long or unable to effectively address the problem.

RAA 6.7.2 – Definition of Registrar Approval

The ALAC has no strong feelings on whether the proposed rules are reasonable or not.

Whois Accuracy Program Specification 1, 2, 4  – Registrant identification and contact information

The ALAC supports the ICANN position of using all available information in addressing Whois Accuracy, not solely that which is in the current Whois record.

Whois Accuracy Program Specification 1e  – Information availability

The ALAC is unsure of the subtle difference in meaning between “made available” and “readily available”. If the issue being addressed by the Registrars is a matter of cost or effort required to avail oneself of the information, that should be made much clearer and not rely on the vague term “readily” which is too subject to varying definitions.

Whois Accuracy Program Specification 5 – Whois inaccuracy remedy

The ALAC believes that the start of this section is too vague. In particular, the word “occurrence” is undefined subject to misinterpretation. The ALAC suggests replacing the beginning of the sentence with “Upon a validated report or discovery of a…”, or alternately, "Upon learning of a...".

Whois Accuracy Program Specification 8 – Expert Working Group

The Rational for the Board resolution creating the Expert Working Group said “Directing the President and CEO to launch a new effort focused on the purpose and provision of gTLD directory services, to serve as the foundation of an upcoming Board-initiated GNSO PDP. The outcomes of this work should act as guidance to the Issue Report that will be presented as part of the GNSO's policy development work; as a result, the Issues Report is not expected to be produced until such time as the President and CEO determines that his work has progressed to a point that it can serve as a basis of work within the PDP. ”

From this, it is clear that the intent was that the Expert Working Group’s conclusions be funneled into a PDP, and it seems premature to have the have the RAA use the Special Amendment process without at least starting the PDP. It would be reasonable to allow the Special Amendment process (or what may replace it in light out the earlier comments) to be used when and if it is apparent that the PDP was not progressing with a reasonable chance of a suitable outcome.

Consensus Policies 1.2.4 – Taking into account use of domain name

Although the ALAC understand the possible difficulty of having a registrar analyse the usage of a particular domain, one cannot totally ignore such usage either. Any policy that includes the requirement to factor in use of a domain name may be difficult to craft so that it can be effective, but the RAA should not preclude such efforts.

Consensus Policies 1.3.4 – Details of accuracy and up-to-date specification

It is unclear what the effect would be of the Registrar request to omit the detailed list of issues that are subject to Consensus/Special Policy. If the omission implies that such issues would be out-of-bounds for future policy, the ALAC does not agree.

Data Retention Specification 1.1.8 – Card-on-File

The impact of this change is unclear. If it is referring to credit card information where a registrar or client choses to not have the registrar save the card number for future use, the issue is a difficult one. The ALAC understands the benefit of maintaining such information for forensic purposes, but at the same time believes strongly that a consumer should be able to require that such information not be stored and therefore subject to hacking and theft.

Data Retention Specification 2 – Trigger for exemptions

The ALAC supports the Registrar position of allowing a contracted party to comply with local law before they are under investigation or cited. Although this puts a larger burden on ICANN to validate the claim, it is a reasonable request. This is particularly true in the case of a new entry into the field (something that ICANN desperately needs in many parts of the world) where it is completely unreasonable to expect an entity to invest in a new business that will implicitly be violating existing law when it starts.

 


FIRST DRAFT SUBMITTED

DRAFT STATEMENT in PDF Format

ALAC Statement on the RAA as posted 7 March 2013

**DRAFT** 28 March 2013, slight addition on 30 March (see comment below)

The ALAC is generally supportive of the RAA and associated specifications as posted for comment. Moreover, the ALAC is generally in agreement with ICANN on the issues where ICANN and Registrars disagree.

The proposed RAA is much better than its predecessor. It provides clarity where previously obscurity and even obfuscation ruled, and many of the omissions of earlier RAAs have been addressed. All parties in the current round of negotiations are to be congratulated.

The ALAC is particularly pleased to see the new sections on Privacy and Proxy registrations; resellers; the Whois Accuracy Program Specification; uniformity of Whois; and a clear, concise simple-language statement of registrant rights and responsibilities.

On a process level, the ALAC wishes to commend ICANN staff for presenting this information in such a way and with multiple views so as to make this very complex set of documents and the differing viewpoints comprehensible.

That being said, there are a number of issues where:

-          the ALAC is uncomfortable with the position that ICANN has taken;

-          the ALAC believes that additional changes are necessary.

ALAC positions on disputed terms or sections requiring additional change

Issue

ALAC Position

RAA 3.3.1 – Registrar port 43 access for thick registries

The ALAC does not have a strong position on this, but some members believe that in the absence of a compelling reason from ICANN as to why the port 43 service should be maintained for thick registries, the registrar position is reasonable.

RAA 6.3 – Special Amendment by ICANN without Registrar approval

The ALAC is sympathetic with the rationale for this clause. Specifically, the regular amendment process which can and apparently does take several years, followed by up to five years delay before all registrars are subject to the new RAA is simply too long to address issues that have “substantial and compelling need”. ICANN as the custodian of the domain name system cannot allow problems that undermine the public interest to exist without taking action. Although the ICANN Board already has the authority to enact policy where the stability or security of the DNS is impacted, not all problems that need addressing meet security/stability criteria.

 

Although ICANN is not a formal “regulator” it is in a position where it must have the tools to act in ways similar to a regulator when the public interest is threatened.

 

That being said, the concept of a unilateral change is not one that many in At-Large feel comfortable with. The ALAC urges ICANN and Registrars to find some common ground that will allow the RAA to be changed in the middle of five-year contracts, similar to how it does for formal Consensus Policies (CP), but for issues that are not subject to CP  or where the PDP route is simply too long or unable to effectively address the problem.

RAA 6.7.2 – Definition of Registrar Approval

The LAC has no strong feelings on whether the proposed rules are reasonable or not.

Whois Accuracy Program Specification 1, 2, 4  –Registrant identification and contact information

The ALAC supports the ICANN position of using all available information in addressing Whois Accuracy, not solely that which is in the current Whois record.

Whois Accuracy Program Specification 1e  –Information availability

The ALAC is unsure of the subtle difference in meaning between “made available” and “readily available”. If the issue being addressed by the Registrars is a matter of cost or effort required to avail oneself of the information, that should be made much clearer and not rely on the vague term “readily” which is too subject to varying definitions.

Whois Accuracy Program Specification 5 – Whois inaccuracy remedy

The ALAC believes that the start of this section is too vague. In particular, the word “occurrence” is undefined subject to misinterpretation. The ALAC suggests replacing the beginning of the sentence with “Upon a validated report or discovery of a…”

Whois Accuracy Program Specification 8 – Expert Working Group

The Rational for the Board resolution creating the Expert Working Group said “Directing the President and CEO to launch a new effort focused on the purpose and provision of gTLD directory services, to serve as the foundation of an upcoming Board-initiated GNSO PDP. The outcomes of this work should act as guidance to the Issue Report that will be presented as part of the GNSO's policy development work; as a result, the Issues Report is not expected to be produced until such time as the President and CEO determines that his work has progressed to a point that it can serve as a basis of work within the PDP. ”

 

From this, it is clear that the intent was that the Expert Working Group’s conclusions be funneled into a PDP, and it seems premature to have the have the RAA use the Special Amendment process without at least starting the PDP. It would be reasonable to allow the Special Amendment process (or what may replace it in light out the earlier comments) to be used when and if it is apparent that the PDP was not progressing with a reasonable chance of a suitable outcome.

Consensus Policies 1.2.4 – Taking into account use of domain name

Although the ALAC understand the possible difficulty of having a registrar analyse the usage of a particular domain, one cannot totally ignore such usage either. Any policy that includes the requirement to factor in use of a domain name may be difficult to craft so that it can be effective, but the RAA should not preclude such efforts.

Consensus Policies 1.3.4 – Details of accuracy and up-to-date specification

It is unclear what the effect would be of the Registrar request to omit the detailed list of issues that are subject to Consensus/Special Policy. If the omission implies that such issues would be out-of-bounds for future policy, the ALAC does not agree.

Data Retention Specification 1.1.8 – Card-on-File

The impact of this change is unclear. If it is referring to credit card information where a registrar or client choses to not have the registrar save the card number for future use, the issue is a difficult one. The ALAC understands the benefit of maintaining such information for forensic purposes, but at the same time believes strongly that a consumer should be able to require that such information not be stored and therefore subject to hacking and theft.

Data Retention Specification 2 – Trigger for exemptions

The ALAC supports the Registrar position of allowing a contracted party to comply with local law before they are under investigation or cited. Although this puts a larger burden on ICANN to validate the claim, it is a reasonable request. This is particularly true in the case of a new entry into the field (something that ICANN desperately needs in many parts of the world) where it is completely unreasonable to expect an entity to invest in a new business that will implicitly be violating existing law when it starts.