[ALAC] RAA 3.7.8

[Alan Greenberg]

See my comments below.  Alan

At 22/03/2013 04:59 PM, Garth Bruen wrote:
>Alan,
>
>Thanks for the question.
>
>My first concern is that the contract and the specifications are not the
>same thing, I would argue it is worth putting this within the contract to
>make it clear if it is worth putting in at all.

The Whois specification is explicitly invoked in 3.7.8 is for all 
intents and purposes an integral part of the RAA. They are using the 
Specifications in much the same way that the draft ALAC Rules of 
Procedure use Adjunct Documents to take a lt of the details out of 
the mainstream set of rules.

>My second concern is a logical disconnect between the language of the
>specification and the language of the second clause of 3.7.8. Let me
>explain.
>
>The major problem with 3.7.8 is in this wording: "Registrar shall, upon
>notification by any person of an inaccuracy in the contact information
>associated with a Registered Name sponsored by Registrar, take reasonable
>steps to investigate that claimed inaccuracy. In the event Registrar learns
>of inaccurate contact information associated with a Registered Name it
>sponsors, it shall take reasonable steps to correct that inaccuracy."
>
>This allows non-contracted parties to the RAA to file complaints about false
>registrations but it does NOT contain any enforcement measures. It does not
>compel the registrar to do anything, does not define "reasonableness", and
>therefore gives ICANN no method for addressing it.

I grant that "reasonable" is not defined, but this is absolutely 
standard contract language (clauses such as "this contract may not be 
transfered with the explicit permission of party A, such permission 
shall not unreasonably be withheld"). Yes, it is at times not honours 
properly and at times goes to court or arbitration, but these are 
terms that are very difficult to define fully, and when you try, the 
definition often comes back to bite you. That being said, if you do 
have a definition that you think would work, by all means propose it.


>The specification #5 states: "Upon the occurrence of a Registered Name
>Holder's willful provision of inaccurate or unreliable WHOIS information,
>its willful failure promptly to update information provided to Registrar, or
>its failure to respond for over fifteen (15) calendar days to inquiries by
>Registrar
>concerning the accuracy of contact details associated with the Registered
>Name Holder's registration "
>
>There is no specific or implied connection between inaccuracies reported by
>the public and "the occurrence of a ... provision of inaccurate or
>unreliable WHOIS information." The assumption that "notification by any
>person" translates to an "occurrence" is just an assumption. How a report
>from the public becomes an issue requiring process is not defined.

Again, if you have some words that in your mind would make the needed 
link, please propose them.


>Furthermore there is muddling of the obligations of the registrant versus
>the obligation of the registrar. 3.7.8 ONLY refers to obligations by the
>registrar, with the second clause ONLY referring to registrar obligations in
>response to public reports. The specification document refers to registrar
>verification and validation. Only specification #4 provides for ANY eternal
>inaccuracy report data and this ONLY refers to contact email addresses, no
>other data elements such as phone numbers, mailing addresses or entity
>names.
>
>The overarching point is that 3.7.8 is one of the few (if only) contract
>sections which opens the door to community oversight or grievance but it is
>artfully hobbled. This new specification as written does NOT fix the
>problem. It still completely leaves domain cancelation at the discretion of
>the registrar, still leaves the definitions of "inaccuracy" and
>"reasonableness" up to the registrar.
>
>We are dealing in an area of vast gray paint which needs to be clear for all
>to see.
>
>-Garth
>
>
>-----Original Message-----
>From: alac-bounces at atlarge-lists.icann.org
>[mailto:alac-bounces at atlarge-lists.icann.org] On Behalf Of Alan Greenberg
>Sent: Friday, March 22, 2013 2:57 PM
>To: ALAC Working List
>Subject: [ALAC] RAA 3.7.8
>Importance: High
>
>Garth, on the recent teleconference on the RAA you raised the issue of RAA
>3.7.8 and said the problem of its being unenforceable by ICANN was still not
>resolved.
>
>As I read it, 3.7.8 (and associated specifications) now says:
>
>- verification of contact information at time of registration required
>- periodic re-verification
>- upon notification of inaccuracy
>- if inaccurate information is found and not corrected within 15 days,
>registrar must terminate or suspend registration, or place it on clientHold.
>
>If the registrar does not do this, they have violated the terms of the RAA.
>
>What more is it that you are looking for?
>
>Alan
>
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