[ALAC] Fwd: Blog Piece on Unilateral Right to Amend

[Alan Greenberg]

>From: "Neuman, Jeff" <Jeff.Neuman at neustar.us>
>To: "council at gnso.icann.org" <council at gnso.icann.org>
>Date: Fri, 15 Mar 2013 17:31:57 -0400
>Subject: [council] FW: Blog Piece on Unilateral Right to Amend

Given the conversation we had during the GNSO 
Council call, I thought you may find this blog 
post we drafted on the Unilateral Right to 
Amend: 
<http://blog.neustar.biz/neustar-insights/clearing-up-the-logjam-time-for-icann-to-drop-request-for-a-unilateral-right-to-amend-the-agreements/>http://blog.neustar.biz/neustar-insights/clearing-up-the-logjam-time-for-icann-to-drop-request-for-a-unilateral-right-to-amend-the-agreements/

I have printed the full version below;


Clearing Up the Logjam: Time for ICANN to Drop 
Request for a Unilateral Right to Amend the Agreements
By: Jeff Neuman

A very rare thing happened in the GNSO Council 
meeting this week­the ICANN community spoke with 
one voice.  Registries, registrars, 
non-commercial interests, new TLD applicants, IP 
owners and businesses unanimously and 
unambiguously agreed that giving ICANN a 
"unilateral right to amend" the registry and 
registrar agreements is not compatible with 
ICANN’s bottom-up processes and poses a 
fundamental threat to the multi-stakeholder 
model.  There is true consensus that this change should be rejected.

On February 5, 2013, ICANN surprised the 
community by re-introducing its demand for a 
unilateral right to amend the gTLD Registry 
Agreement.  ICANN made the same change in the 
Registrar Accreditation Agreements. (This was 
posted for public comment on March 7, 2013.  See: 
<http://www.icann.org/en/news/public-comment/proposed-raa-07mar13-en.htm>http://www.icann.org/en/news/public-comment/proposed-raa-07mar13-en.htm).

This move came without consultation, nearly five 
years after the new gTLD Program moved into the 
implementation phase, and three years after the 
community and ICANN, through a bottom-up process, 
rejected this approach and reached a compromise on similar language.

During the GNSO Council's monthly teleconference 
on March 14, 2013, while discussing the recent 
changes to the Registrar Accreditation Agreement, 
Council members raised the topic of ICANN's 
proposed unilateral right to amend the registry 
and registrar agreements.  ICANN staff present on 
the call explained its position, saying, "the 
amendment clause is actually intended to be last 
resort for when there is agreement that something 
needs to be done, but there is a logjam within 
the processes that we have that don’t allow us to 
move forward."  Essentially, ICANN is asking, 
"what happens when everyone agrees that a 
particular change is needed, but the 
multi-stakeholder processes – or someone 
manipulating those processes - prevents the 
community from moving forward with what the community wants."

Taken in isolation and without any other context, 
this is a perfectly reasonable question.  If 
there truly were no mechanisms in the registry or 
registrar agreements to make necessary changes 
when the community demands action, then ICANN 
staff's concerns would be justified.  It would be 
a good question to ask if someone could use ICANN 
processes to block a change that everyone else 
supported.  The fact is, however, that there 
already are a number of mechanisms ICANN can take 
to implement community supported changes.

First, of course, contracted-parties can agree to 
make a change they support.  Second, there is a 
bottom-up Consensus Policy mechanism for critical 
changes that ensures that any implementation is 
appropriately balanced across multiple 
constituencies and stakeholder groups.  Truly 
important and time-sensitive issues can be 
addressed via Temporary Policies that remain in 
place for up to a year and, during that year, can 
be adopted as Consensus Policies.  Finally, the 
new gTLD agreement contains a new mechanism that 
gives ICANN authority to make amendments 
supported by a specific percentage of the 
registry operators effective across the entire 
registry group.  This is the compromise that was 
developed through a bottom-up process in 
2009-2010 when the community rejected the unilateral change provision.

ICANN agreed in 2010 that these three mechanisms 
gave it the necessary tools to amend the registry 
contract to implement changes demanded by the 
community.  Apparently, it has had a change of 
heart and now wants the authority to unilaterally 
impose changes to the agreements.  To date, 
ICANN’s explanation is that the introduction of 
new gTLDs will change things in ways that cannot 
be anticipated. ICANN has not responded to 
community requests for a concrete example of when 
this right would actually be needed.

Of course, the ICANN world is not unique – the 
future is inherently unknown, but parties enter 
into long-term contracts with high stakes all the 
time without introducing the kind of uncertainty 
that a unilateral amendment right would create. 
To borrow from the gTLD Registries comment made 
on February 26, 2013:  "we are in the midst of 
dramatic change in the administration of the 
top-level domain name system.  All businesses – 
whether for profit or nonprofit - require a 
measure of predictability, stability and 
certainty of contracts.  Public and 
multi-national company applicants are subject to 
regulatory regimes that cannot be reconciled with 
the expanded unilateral authority ICANN is 
seeking.  In deciding whether or not to utilize 
new gTLDs for their critical infrastructure 
assets, a key goal of the new gTLD program, 
registries cannot be subject to the whim of one 
private entity, even those acting under the guise 
of public interest, regardless of how 
well-intentioned that private entity purports to be."

ICANN's proposal for this new mechanism, however, 
has been met with opposition not only from the 
new gTLD Applicants and existing registries, but 
also the registrars, non-commercial interests, 
businesses and IP owners.  In fact, every single 
comment on ICANN’s last minute changes to the new 
gTLD registry agreement called for its removal. 
EVERYONE is in agreement that this is a bad idea 
and should be withdrawn. The fact that the entire 
community has never been so aligned about a 
particular subject speaks volumes, but despite 
this clarity ICANN continues to insist on a 
unilateral right to amend the registry and registrar agreements,

Ironically, in this case ICANN itself is creating 
a logjam that is preventing forward movement.  By 
walking away from the version of the legal 
agreement contained in the final Applicant 
Guidebook, ICANN is preventing the new gTLD 
Program from going forward.  This same issue is 
also the logjam preventing the roll out of a new 
registrar accreditation agreement containing 
enormous changes that would benefit registrants, 
law enforcement, intellectual property owners and Internet users in general.

So in response to ICANN’s question about clearing 
logjams, we think they are asking the wrong 
question.  ICANN should stop worrying about the 
theoretical logjams of the future.  It’s time to 
take this request for extraordinary, unilateral 
power off the table in order to clear away 
today’s very real logjam.  Once this request is 
withdrawn, the new gTLD program can move forward 
and the Registrar Accreditation Agreement can be finalized.