August 16, 2001
Mr. Stuart Lynn
President and Chief Executive Officer
Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina del Rey, CA
The Registrar Constituency respectfully submits this letter to express its concerns regarding recent correspondence that Mr. Roger Cochetti, Senior Vice President of Policy at VeriSign, submitted to you. The Registrar Constituency (Constituency) believes that these letters do not accurately convey the underlying issues facing the constituency involving transfers. Additionally, the approach that VeriSign is implementing attempts to circumvent the bottom-up effort to develop consensus solutions to these problems that the Constituency has been engaged in to date.
Existing Transfer Policy
The existing transfer process is documented in Exhibit B (Policy on Transfer of Sponsorship of Registrations Between Registrars) of the ICANN Registry/Registrar License and Agreement.
The key elements of this process are as follows:
For each instance where a domain name holder wants to change its Registrar for an existing domain name (i.e., a domain name that appears in a particular top-level domain zone file), the gaining Registrar shall:
Obtain express authorization from an individual who has the apparent authority to legally bind the SLD holder (as reflected in the database of the losing Registrar).
a) The form of the authorization is at the discretion of each gaining Registrar.
b) The gaining Registrar shall retain a record of reliable evidence of the authorization.
Request, by the transmission of a "transfer" command as specified in the Registry Registrar Protocol, that the Registry database be changed to reflect the new Registrar.
a) Transmission of a "transfer" command constitutes a representation on the part of the gaining Registrar that:
(1) the requisite authorization has been obtained from the domain name holder listed in the database of the losing Registrar, and
(2) the losing Registrar will be provided with a copy of the authorization if and when requested.
In those instances when the Registrar of record denies the requested change of Registrar, the Registrar of record shall notify the prospective gaining Registrar that the request was denied and the reason for the denial.
Instances when the requested change of sponsoring Registrar may be denied include, but are not limited to:
1) Situations described in the Domain Name Dispute Resolution Policy
2) A pending bankruptcy of the domain name Holder
3) Dispute over the identity of the domain name Holder
4) Request to transfer sponsorship occurs within the first 60 days after the initial registration with the Registrar
In all cases, the losing Registrar shall respond to the e-mail notice regarding the "transfer" request within five (5) days. Failure to respond will result in a default "approval" of the "transfer."
Upon receipt of the "transfer" command from the gaining Registrar, the Registry will transmit an e-mail notification to both Registrars.
The Registry shall complete the "transfer" if either:
1) the losing Registrar expressly "approves" the request, or
2) the Registry does not receive a response from the losing Registrar within five (5) days.
When the Registry's database has been updated to reflect the change to the gaining Registrar, the Registry will transmit an email notification to both Registrars.
A small number of registrars, representing a very large portion of the total market, have recently adopted procedures to require domain name registrants to explicitly acknowledge to the losing registrar that the registrant has authorized a transfer request. These changes are restricting the ability of a gaining registrar to transfer the domain at the request of the registrant.
More specifically, the procedures employed by the small number of registrars in question are as follows:
Following the email from the registry to a losing registrar seeking confirmation of a domain name transfer initiated by the gaining registrar, the losing registrars are contacting the domain name holder directly to seek confirmation within the 5 day window set by the registry. If the domain name holder DOES NOT RESPOND, the losing registrar is denying the transfer on the grounds that there is a dispute over the identity of the domain name holder. This is a deviation from the spirit of the existing policy (note the registry assumes approval if the losing registrar does not respond within 5 days, and so it would be reasonable if the losing registrar assumed approval if the domain name holder does not respond within 5 days).
The emails sent by the registrars who are changing the procedures, are generally confusing to the domain name holder (and in some cases in the wrong language), and it is typical for the domain name holder not to respond. The domain name holders assume that the transfer will go ahead as they have explicitly approved that action to the gaining registrar, or the domain name holder has simply not had time to read and respond to the email.
Registrars Efforts to Date
This transfer issue first emerged on the Registrar Constituencys agenda at the Stockholm meeting in June. Because of the significant impact that this issue was having on most operational registrars, an emergency meeting was called on Sunday to further discuss the issue.
During this meeting by a vote of 23 to 2, the registrars in attendance expressed their strong desire to adopt a procedure that would automatically acknowledge a transfer when a registrant failed to respond to a losing registrars inquiry (autoACK). Although most registrars acknowledged an ambiguity in the current language, it was believed that relying on the status quo was the most prudent course of action until a more thorough analysis of the problem could be undertaken. The registrars agreed to work on solutions as a follow up to Stockholm.
Following the Stockholm meeting, there was a follow-up teleconference for the benefit of those registrars that were unable to attend the Stockholm meeting. This meeting further reinforced the consensus that had been forged in Stockholm. In an attempt to resolve this matter internally, those registrars advocating an autoNACK policy engaged in consultations among themselves and with other registrars in an attempt to seek a compromise position.
During these negotiations a straw poll was conducted among the Constituency to further define the issues. This vote reaffirmed for the third time the strong support within the Constituency for an autoACK policy. Although the straw poll supported moving this issue forward to the Names Council for discussion and suggested resolution, it was decided that those registrars supporting the autoNACK policy would be given additional time to resolve this matter
On June 29th, one of the registrars that had been advocating an autoNACK policy, submitted to the Registrar list a proposed compromise. Although there was some concern regarding the potential implementation of this solution voiced by certain registrars, the attempt to proactively engage in dialog with the Constituency was true to the ICANN bottom-up consensus building effort.
On July 13th, Paul Kane, a Registrar Constituency Names Council representative posted an email to the Constituency list inquiring about VeriSigns much anticipated document so that the Constituency could engage in further consensus building efforts. Regrettably, rather than responding to this request from the Registrars, on July 16th, VeriSign instead submitted its first letter directly to ICANN. Only after public inquiries to the Constituency list did a VeriSign representative provide any further explanation to the Registrars.
A Registrar meeting was held on July 23, 2001 to discuss the options.
The Constituency is concerned that VeriSign sought to go directly to ICANN on this issue, ignoring the bottom-up consensus building efforts that had been engaged in for several weeks. Moreover, there is an important issue that Mr. Cochetti did not make clear in his July 16th letter, that is significant.
During both Constituency meetings in Stockholm, Dan Halloran, ICANN Registrar Liaison, stated that he was not aware of any complaints that ICANN had received about domain name slamming. Mr. Halloran latter qualified this statement in an email to the Registrar Constituency stating, that ICANN has received reports of unauthorized transfers but that they were usually associated with domain name "hijacking" (an issue that the Registrar Constituency takes seriously and has addressed in the past). Additionally, Mr. Halloran also indicated that he had been informed of one other registrar that had raised concerns about transfers deceptively initiated by resellers or registrars without the registrant's informed consent. The Registrar Constituency has requested that ICANN provide the constituency with any and all information they have on this subject, and looks forward to working with ICANN staff in resolving this matter.
The Registrar Constituency would like to thank VeriSign for making public its previously private survey on July 26th.
Clarification From ICANN
The Constituency universally agrees that protecting a registrants interests is paramount; unfortunately there is a disagreement on how to best achieve this end result. We are seeking clarification from ICANN: what are our options in addressing this situation. If ICANN deems this to be a policy change, we assume that it would require DNSO approval and that we should bring it before the DNSO. If ICANN believes this to be a procedural interpretation of existing ICANN Policy, we assume that the Constituency can implement their preferred solution, without full DNSO review. In any case, the Registrar Constituency would look to ICANN staff for support in enforcement of any solution arrived at by the parties.
As time is of the essence, the Registrar Constituency would like to move forward down one of the above two paths within the next couple of weeks. If the Constituency does not receive guidance from ICANN on this issue during this time, the Constituency will advise its Names Council representatives to bring proposed solutions to this issue before the full Names Council for consideration and action in Montevideo.
The Constituency is clearly concerned that certain registrars are employing new and onerous transfer policies that create confusion and registrant burdens and dissatisfaction. Further frustrating to the Constituency is that this argument ignores the very fact that this radical departure from adopted policy and procedure has created the very consumer confusion that they claim to be protecting against. The Constituency eagerly awaits guidance from ICANN on how to proceed in implementing its consensus-based solution, and, if necessary, stands willing to participate with the other DNSO constituencies in resolving this problem.
Registrar Constituency Chairperson
Cc: Louis Touton
ICANN DNSO Names Council