Re: [ga] Re: ICANN & transfers

[eric@hi-tek.com]

Ross,

After a fairly careful review of your positions I would like to add some comment
regarding public policy and contracting.

My last understanding is that 48 states, (New Hampshire and Louisiana
withstanding), Mexico, France, Vietnam and Australia and Canada will hold any
contract in violation of public policy void or voidable.  Determining public
policy may be a complicated court matter, indeed in the Cavebear vs ICANN case
they may determine that public policy dictates that provisions regarding
disclosure or lack thereof are out of line and void.  It is easy when we have
direct laws that deal with such concepts, but when we are lacking in legislative
direction we must look to accepted professional bodies to determine proper
standard - and there is the rub.  The Internet has acceptable professional
bodies that in all truth suck air in policy matters.
So I ask that you review your positions with a definitive view toward
establishing exactly what is the policy which you seek to invoke and on what
basis that was determined.
I applaud your efforts and only hope that you make them more ironclad.

Sincerely,
Eric

"Ross Wm. Rader" wrote:

> > the information I have seems to show that these specifics are in the
> > contract between registrars and registry at least for the particular
> > case of .com/.net/.org so ICANN does not have 3rd party standing to
> > intervene for that case. The newer gTLD contracts are a bit more
> > refined.
>
> But isn't it the case that II.20 of the .com Registry Agreement binds
> Verisign to provide access to the SRS in accordance with the terms of the
> Registry/Registrar Agreement? Being a layperson, this is just a guess, but
> my read indicates that ICANN does indeed have privity based solely on this
> clause
> (http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-25may01.htm
> #II-19) If this is the case, then ICANN most certainly does have the
> standing to influence the resolution (through legal or other means...)
>
> The true shame to this entire issue is that this same clause spells out very
> clearly that the Registry Operator can amend the Registry/Registrar
> Agreement (and do wonderful things like close loopholes that allow
> Registrars to engage in transfer hijinks) as long as ICANN signs off on
> them. While Registries have exhibited varying degrees of interest in this
> issue at different times - none of them have jumped in front of this issue
> and pushed for resolution. One can continue to hope I suppose ;)
>
> > It looks so me as if we need something more refined than dis-
> > accreditation as the principal tool providing incentive to adhere
> > to contract terms.
>
> We've written a discussion paper that describes a possible solution to the
> "blunt instrument" problem you describe (along the lines of PDG's
> suggestion). You can find a copy of it here -
> http://www.byte.org/heathrow/icann-reform-cda-v0r0d1-062602.html - The basic
> premise of the document is that "...contracted parties and contractual
> issues are not adequately separated from policy formulation and provided
> separate institutional solutions. The focus of ICANN will remain on policy
> development. The blind spot, as we see it, concerns the absence of provision
> for contracted parties to sort out their disputes effectively within the
> ICANN framework. These disputes are at the core of the registration
> business. They are of intense interest to few parties, such as registrars
> and registries, and of considerable interest to domain-name registrants."
>
> A further update to this document should also be published tomorrow - I will
> be sure to pass it on.
>
> -rwr
>
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