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[ga] By-passing the DNSO

In a new paragraph added to the Proposed Unsponsored TLD Agreement (3.5.6.)
which matches the language in the Verisign agreement, the ICANN Staff has
introduced a provision regarding changes to the proposed "Sanctions Program"
that effectively eviscerates the policy-recommending role of the DNSO:

"In the event that the gTLD Constituency of the Domain Name Supporting
Organization proposes a substitute Appendix Y at any time prior to 1 May
2002, and ICANN determines (following an appropriate process of public
notice and comment) that substitution by that Appendix Y would serve the
interests of the Internet community, the substitution shall be made."

This sanctions program (appendix Y) deals with violations of Subsections
3.5.1 through 3.5.5 and Appendix H (certification and separation
requirements) and Appendix I (Registry Operator's Code of Conduct) of the
Registry Agreement.  This action to deny the role of the DNSO (supplanting
it with the role of the gTLD constituency), is akin to allowing the fox to
propose new rules regarding its own distance and conduct with respect to the

The "Sanctions Program" also calls for a "Confidential Notice of
Investigation", which to my view subverts the concept of open public
evaluation of charges of abuse; this bears further consideration.

Details of proposed sanctions are as follows:

"Sanctions of up to US$10,000 for each violation may be assessed for each
minor violation found and sanctions of up to US$100,000 for each violation
may be assessed for each major violation found. The amount of the financial
sanction shall be proportionate to the violation and other relevant facts."

This "fixed scale" of sanctions effectively allows giant well-financed
corporations to sustain multiple violations of conduct with relative
impunity as they can well afford the cost of such fee assessments.  A
"proportionate scale" tied to the relative size of the registry might be a
more reasonable consideration.

In the last round of discussions on the Verisign agreement, the DNSO was
played like a fish on a hook; it was specifically asked for comments to
focus on the "substantive merits" of the agreements, which then allowed
Stuart Lynn to make the following comment to the Department of Commerce:

"As this recitation indicates, the ultimate Names Council recommendations to
ICANN are, in general, not focused on "policy" issues, but rather are
suggestions about how the proposed new agreements could be modified, by
changing contractual dates and the like, to make them better agreements in
the view of those supporting the resolutions. These expressions are
certainly important, but they can hardly be described as representing the
kinds of policy issues that are, pursuant to ICANN's bylaws, the initial
responsibility of the DNSO within the ICANN structure."

We must take a hard look at the policy implications within these proposed
agreements and argue primarily on the basis of policy.

Sanctions are a punitive enforcement mechanism.  The degree to which
violations must be met with punishment is a matter of consensus-based
policy.  There are six other constituencies, as well as unrepresented
members of the general public, that have a stake in reigning in potentially
abusive registry conduct.  The DNSO should not be by-passed in this process.

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