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Mishandling the Registrar Contract Negotiations

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By publishing a draft Registrar Accreditation Agreement (RAA) for public comment before it has been agreed on by both parties, has ICANN dealt the bottom-up multi-stakeholder model a blow?

ICANN Staff and the registrars have been negotiating a new version of the RAA for the past 18 months following requests by Law Enforcement Agencies (LEA) such as Interpol for greater consumer protection.

With both ICANN and registrars working hard, by early this year agreement had been reached on 11.5 of the 12 LEA "asks"

A deal looked close.

Then at the last minute, ICANN threw extras at the proposed RAA, including an extraordinary provision for the ICANN Board to be able to force unilateral changes into the RAA at any time.

Imagine signing a contract with someone where that person can change the contract at any time, without your input, and you are bound by those changes. Crazy, right? Even crazier in the ICANN world, built as it is on the premise of bottom-up consensus, not top-down "we'll change your contract when we damn well feel like it" tactics.

Here's one we prepared earlier

Still, disagreement in negotiations is no big deal. Surely all both sides have to do is simply continue talking and try to iron them out, right?

Wrong when one side tries to push its way forward by publishing a draft agreement and portraying it as the result of these negotiations, even though that's clearly not the case and the other side has asked this not to be done.

This is what's happened today, with ICANN putting the current draft RAA out for public comment. "Given the agreement in principle over so many areas, there were two paths forward: continue negotiations to address points that have been raised multiple times by each side, or put the agreement out to the community now for public input on the finalization of the agreement," says ICANN in a statement issued with the draft RAA. "After the long period of negotiations, as well as the import of the 2013 RAA to the New gTLD Program, ICANN feels that it is very important to take the RAA proposal to the community."

At least no-one can accuse ICANN of not saying it like it is!

The registrars have put out their own statement decrying the way ICANN has handled this. "All of the items that have been agreed to over the past 18 months would, by themselves, produce an RAA that is vastly improved over the current 2009 version. Nearly all of the Law Enforcement requests that were endorsed by the GAC have been included, as well as the major items that were requested by the GNSO. That RAA would bring registrant verification. That RAA would bring enhanced compliance tools. Registrars must emphasize that the key differences between that RAA and the one currently proposed by ICANN are not issues raised by Law Enforcement, GAC or the GNSO but by ICANN staff (underlined in the original statement)."

Cart, horse, in that order

It appears staff have been driven to put the cart before the horse by Fadi Chehadé's desire to wrap the RAA issue up.

Chehadé named the RAA as one of his key deliverables when he formally took office late last year. Since then, he has surprised the community by introducing new requirements in the contract new gTLD registries will have to sign. Among them, the obligation to only use registrars that have signed the 2013 RAA. In other words, under Chehadé's instructions, ICANN is attempting to tie down new gTLD operators to a registrar contract that is still being negotiated.

No wonder Chehadé wants these negotiations done sooner rather than later. Registrars feel this "surprise announcement that all new gTLD registries must only use registrars that have signed the 2013 RAA" is nothing more than "a transparent effort by ICANN to arbitrarily link the new gTLD program to the outcome of RAA negotiations." If enacted, they fear the requirement would create separate classes of registrars. "This is unprecedented in the DNS industry," they say. "There can and must be only one meaning of 'ICANN-Accredited'".

Worse than this, registrars feel the attempt by ICANN to give its Board power to unilaterally amend the RAA could affect the multi-stakeholder model as a whole.

"ICANN insisted on including a proposed Revocation (or "blow up") Clause that would have given them the ability to unilaterally terminate all registrar accreditations," registrars explain in their statement. "After major pushback, ICANN staff relented and in its place proposed giving the ICANN Board the ability to unilaterally amend the RAA. This is identical to what ICANN inserted into the proposed new gTLD registry agreement — a clause met with strong opposition not only from the Registry Stakeholder Group but from the broader ICANN community."

So this is the real blow-up clause. "The effect of such a clause in the primary agreements between ICANN and its commercial stakeholders would be devastating to the bottom-up, multi-stakeholder model," the registrars argue. "First, it will effectively mean the end of the GNSO's PDP, as the Board will become the central arena for all controversial issues, not the community. Second, it creates an imbalance of authority in the ICANN model, with no limits on the scope or frequency of unilateral amendments, and no protections for registrars and more important registrants."

Red alert

I founded and ran a registrar for more than a decade. Today, as a consultant to the domain industry, I represent a registrar (NetNames) in the Registrar Stakeholder Group. Clearly, I am biased towards the registrar point of view in this debate, and this is probably the way some will read this article.

But others know I am first and foremost a passionate defender of the multi-stakeholder model.

Through 2 years of chairing the GNSO (up until last October) I always sought to defend that ideal when it was put under pressure.

And since stepping down as Chair and getting my voice back, when the model is attacked I have spoken out to defend it. When Chehadé launched headfirst into the Trademark Clearinghouse discussions, I warned of the dangers of this approach and was impressed when he later recognised he may have been a little too hasty.

With what is happening now on the RAA, isn't it time to sound the alarm bells once again? Chehadé seems to be adopting a "Janus approach" to solving ICANN issues. Publicly, he is engaging, energetic and I have gone on the record saying how much good I think the new CEO is doing ICANN's image worldwide.

But in his more direct dealings with ICANN's constituencies, Chehadé seems to think that the end justifies trampling the model.

Sure ICANN has its problems and sure everyone can only welcome a determined leadership approach to solving them, but for the unique governance experiment that is ICANN, this bidirectional approach risks making the cure look worse than the disease.

Written by Stéphane Van Gelder, Chairman, STEPHANE VAN GELDER CONSULTING

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More under: Domain Names, ICANN, Internet Governance

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