[PC-NCSG] Fwd: Potential Comments on RAA Negotiations

[Wendy Seltzer]

Anyone want to sign on with me? or offer amendments in the next hour?

--Wendy

-------- Original Message --------
Subject: Potential  Comments on RAA Negotiations
Date: Thu, 28 Mar 2013 18:49:48 -0400
From: Wendy Seltzer <wendy at seltzer.com>
To: comments-proposed-raa-07mar13 at icann.org

In negotiating the contracts that form the basis of its governance
regime, ICANN owes it to the public, registrants included, to keep our
interests in mind. [[As a lawyer, technologist, and member of the
Non-Commercial Users Constituency, I| We ]] do not believe the latest
proposed Registrar Accreditation Agreement (RAA) does so.

The heart of ICANN's multi-stakeholder regime is that difficult issues
are resolved through consensus driven by participation and
representation of the stakeholders, not by ICANN's Board acting without
(or against) such guidance. The consensus process carefully insulates
the Board from many decisions -- its governance is in making sure the
right procedural steps are followed, not by overturning that process to
intervene on the substance of contested questions.

The provision for unilateral amendment of the RAA pulls the Board into
disputes, subjecting them to lobbying from partisan interests.
Curtailing their power is actually protecting their ability to oversee
the interests of all of the stakeholders.

Unilateral amendments, even less than bilateral contractual negotiations
are not the place to set policy for a multi-stakeholder environment. The
unilateral decision-making in this foundational agreement undermines our
ability to advocate for multi-stakeholder governance in the ICANN model
in other fora.

Additional problems with the most recent changes:
* Abrogates the picket fence

* Not evidence-based and therefore irrational and without legal basis:
no evidence has been provided of a problem necessitating this solution;
no persuasive rationale has been presented and in any event, any such
evidence/rationale must be subject to community input.

* The "Registrants rights and responsibilities" document gives feeble
rights in exchange for onerous (and unenforceable) responsibilities. It
should not have been tabled without input from community and especially
across community constituencies

* The proposed accreditation of privacy services and proxy registration
providers has come under much criticism -- should a lawyer registering
domains on behalf of a client, subject to attorney-client privilege, be
forced to register? must a whistleblower or critic depend on mere
promises not to disclose identity? Even a placeholder for this policy is
inappropriate at this stage.

ICANN is making policy for the Internet and most of its domain
registrants -- those seeking a stable location for their online speech
depend on domain registrations (some, however, use ccTLDs not subject to
this regime). Registrants depend on registrars to get these names,
registrars who won't be deterred by the nuisance of an uncomfortable
exercise of free expression rights.

We support the Registrars in their opposition to these proposed RAA
amendments.



-- 
Wendy Seltzer -- wendy at seltzer.org +1 617.863.0613
Policy Counsel, World Wide Web Consortium (W3C)
Fellow, Berkman Center for Internet & Society at Harvard University
Visiting Fellow, Yale Law School Information Society Project
http://wendy.seltzer.org/
https://www.chillingeffects.org/
https://www.torproject.org/
http://www.freedom-to-tinker.com/