[ga] Re: Transfers: Apparent Authority Discussion

["Ross Wm. Rader" <ross@tucows.com>]

As with the last document that I worked on, you again mischaracterize it as
being "my draft"...there were two or three calls and a bunch of emails that
went into this proposal to the TF.

Regardless, you do raise touch on a key issue as it relates to the issue of
apparent authority in your analysis of the document - ""It would be
unworkable for this level of authorization to have to be obtained from the
Registrant directly in every instance."

It is important to remember the context of this statement...the rest of the
para reads...

"Many
Registrants do not wish to concern themselves with the day-to-day
maintenance of their domain registrations.  The concept of apparent
authority therefore allows a person authorized by the registrant to
legitimately interpose themselves between the registrant and the other
participants in the transfer process and in doing so, enter into binding
contracts on the registrant's behalf.  Apparent authority is also obviously
necessary where the registrant is a corporate body since it must act through
natural persons who must have authority to bind the corporation.  In order
to request a transfer, the Gaining Registrar must obtain Express
Authorization from an individual with the apparent authority to bind the
Registered Name Holder to the terms of transfer. Further, the form of the
express authorization is at the discretion of the gaining registrar."

This paragraph is not a discussion of how apparent authority is conveyed to
a registrar as you intimate below, but rather a factual statement
illustrating why the concept of apparent authority is an integral part of
the domain transfer policy and process in the first place. Try and get a
corporation to enter into a contract without bringing apparent authority
into the picture for instance.

Hope this clarifies.

-rwr


----- Original Message -----
From: <DannyYounger@cs.com>
To: <ga@dnso.org>
Cc: <mcade@att.com>; <roessler@does-not-exist.org>; <ross@tucows.com>;
<Elisabeth.Porteneuve@cetp.ipsl.fr>; <RJS@lojo.co.nz>;
<synthesis@videotron.ca>; <nick.wood@nom-iq.com>;
<grant.forsyth@clear.co.nz>; <crusso@verisign.com>; <mcf@uwm.edu>;
<orobles@nic.mx>; <james.love@cptech.org>
Sent: Friday, May 24, 2002 11:06 AM
Subject: Transfers: Apparent Authority Discussion


> The Chair of the Transfers TF has posted this reminder:  "On 5/14, a draft
> related to Apparent Authority was posted to the TF list. Comments FROM the
TF
> itself will close on June 1.   The constituencies and GA are encouraged to
> widely distribute this draft and to provide comment via email to the TF
> members."
>
> The "Apparent Authority" Analysis provided by Ross Rader and his "small
> drafting team" may be found at:
> http://www.dnso.org/clubpublic/nc-transfer/Arc00/msg00181.html
>
> My comments:
>
> Ross's admittedly incomplete analysis focuses on two terms:  apparent
> authority and express authorization, the former term having been given a
> great deal of thought, and the latter term awaiting further consideration.
> These terms rise to a level of significance owing to their use in Exhibit
B
> of the Registry/Registrar agreements which specify that "...for each
instance
> where an Registered Name holder wants to change its Registrar for an
existing
> domain name, the gaining Registrar shall obtain express authorization from
an
> individual who has the apparent authority to legally bind the Registered
Name
> holder."
>
> Ross argues that "It would be unworkable for this level of authorization
to
> have to be obtained from the Registrant directly in every instance."  This
> argument is readily refuted (as "workable" models already exist in
> Australia).  What seems to be of greater importance to Ross and his
> associates is the "convenience" of the Registrar which is enhanced by the
> unexplained need to abide by the text of Exhibit B rather than crafting
more
> appropriate language...
>
> By way of example, consider the auDA Registrar-Registar Transfers document
> posted to the TF list by Rick Shera:
> http://www.auda.org.au/docs/auda-transfers-draft.pdf    Rick notes that
they
> have avoided apparent authority arguments altogether by specifying the
level
> of authority required from the registrant, and that express "written"
> authorization is clearly defined (and does not include email).   Written
> authorization is defined as:
>
> a hard copy letter, facsimile or PDF document signed by the registrant, or
in
> the case of a corporate registrant, signed by a senior manager, corporate
> director, company secretary (or the equivalent of these positions) of the
> registrant.
>
> The auDa procedure calls for written authorization coupled with a valid
> domain name PIN from the registrant (note that automated transfers are
> explicitedly prohibited for the sake of registrant protection).  I would
> appreciate some discussion on why this Australian model cannot be used by
the
> ICANN organization, and why the Transfers TF has so far failed to discuss
> this alternative.
>
>
>
>
>
>
>
>
>

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