[NA-Discuss] Domain tasting -- epilogue(?)

[Danny Younger]

Evan,

Question #4 is particularly challenging:

ICANN as an organization has always been reluctant to
find itself cast in the role of a regulator.  The
problem, of course, is that while the ccTLD community
is sufficiently well regulated, the gTLD community
under ICANN's auspices has become the equivalent of
the Wild West (with the Sheriff nowhere to be found).

ICANN likes to think of itself as promoting industry
self-regulation and as serving to coordinate "best
practices".  The issue, as we know, is that registrars
have routinely failed to adopt best practices, have
never adopted a Code of Conduct, and seem to go out of
their way to avoid self-regulatory activities.

Accordingly, we see contract language with phrases
like "a registrar SHOULD" instead of "a registrar
MUST".  God forbid that ICANN should actually create
enforceable contract language -- that might mean that
if ICANN failed to enforce a provision and a
registrant consequently suffered, that ICANN could be
held liable... and in no circumstances will ICANN ever
expose itself to increased liability.

There is, however, a way to deal with consumer
complaints that seems to work.  AuDa has a Consumer
Complaint Resolution Mechanism that thus far has stood
the test of time (and apparently hasn't suffered from
liability issues)... see
http://www.auda.org.au/policies/auda-2007-03/

Perhaps it's time to discuss such an approach with
ICANN to deal with gTLD issues.

Here's some of the relevant auDa language:

5.2 Under Federal Government policy, the Australian
domain name industry is self-regulatory. This means
that industry participants are themselves responsible
for determining appropriate responses to any problems
that arise within the industry. In accordance with
this self-regulatory approach, auDA is an office of
last resort with regard to making a complaint about a
registrar or reseller. Before auDA will investigate a
complaint, you must have first attempted to resolve
the complaint with the registrar or reseller involved.
Under the .au Domain Name Suppliers’ Code of Practice,
all registrars and resellers must have adequate
complaints-handling policies and procedures in place.

5.3 Before making a complaint to auDA, you must allow
a reasonable period of time for the registrar or
reseller to respond to your complaint. auDA will not
investigate your complaint unless you have done so.
You should also collect any relevant supporting
documentation, such as registration agreements,
policies, emails and other correspondence with the
registrar or reseller. Failure to do so may mean that
auDA is unable to investigate your complaint for lack
of evidence.

5.4 If your complaint is upheld, auDA may take one or
more of the following actions:
a) request the registrar or reseller to issue you with
a full explanation and apology;
b) request the registrar or reseller to remedy their
error and/or refund any payment for services not
received;
c) in the case of an unauthorised transfer, instruct
the registry to reverse the transfer (refer to the
Transfers (Change of Registrar of Record) Policy
2003-03));
d) request the registrar or reseller to amend the
practice or procedure that led to your complaint; 
e) notify the registrar or reseller that they are in
breach of the Registrar Agreement, the .au Domain Name
Suppliers’ Code of Practice or an auDA Published
Policy, and request them to remedy the breach; or
f) refer your complaint to the relevant government
authority. 

Please Note: auDA is not a government agency or
statutory authority, therefore it does not have
legislative power to impose fines or other penalties
on a registrar or reseller.

PS.  The Registry Constituency has released their
Domain Tasting Statement: 
http://www.gtldregistries.org/pdf/ConstituencyStatement-DomainTastingv1.0.pdf


--- Evan Leibovitch <evan at telly.org> wrote:

> Hello everyone,
> 
> At least many of you have been following and
> participating in the debate
> on the global At-Large list (and occasionally
> diverted into the ALAC's
> internal list) on the issue of Domain Tasting.
> 
> The stance taken at last month's NARALO conference
> call was strong,
> clear, and dare I say even courageous given the
> motherhood statements
> that existed in the draft position. Our call to
> eliminate the add-grade
> period (AGP) is now part of the official ALAC
> document which resides at
> this URL:
>
https://st.icann.org/data/workspaces/gnso-liaison/attachments/domain_tasting_documents:20071206203659-0-11802/files/05-12-2007-Domain-Tasting-Statement.pdf
> I find it extremely unfortunate that ALAC could not
> itself take a strong
> anti-AGP stand, but the final outcome was -- to me
> -- much better than
> original drafts that tried to marginalize the
> position.
> 
> There are some lingering issues, resulting from the
> debate,  that I
> would like to address:
> 
> 
> 1) Some At-Large constituents have contacted me
> about the possibility of
> NARALO submitting its own position paper to GNSO
> independently of ALAC's
> submission. Personally I am not convinced this is
> now required, given
> that the final ALAC document reasonably captures and
> identifies our
> position. However, I think we need to at least be
> aware of the request.
> How strong is the need for us to create our own
> document?
> 
> 
> 2) One particular part of the discussions disturbed
> me greatly -- the
> assertion by Alan that ALAC has adopted a position
> of "silence means
> consent". Given the lack of input that ALAC usually
> gets for its
> initiatives -- and the (IMO) lack of effort it makes
> to reach out to
> extract the public point of view -- I find this
> position to be harmful
> to the whole At-Large process. I would rather ALAC
> honestly admit to not
> having enough feedback on issues, to reporting that
> it speaks on behalf
> of a community that has been silent. To me, the
> "silence equals
> agreement" position is indefensible and damages the
> reputation of ALAC
> -- and indeed ICANN -- amongst the public it is
> trying to reach.
> 
> I would like to ask our ALAC representatives to
> consider this issue.
> Perhaps a subsequent discussion within NARALO is
> called for, but I would
> personally like our reps to officially ask ALAC to
> end any policy,
> formal or informal, of "silence means consent".
> Perhaps some here --
> including non-ALAC reps with some history -- can
> offer why this policy
> exists in the first place. I would like to
> especially hear from anyone
> with a view that this policy needs to stay in place;
> I honestly don't
> understand any rationale except for disguising the
> inability to actually
> discern the grassroots viewpoint.
> 
> 
> 3) I'm not certain that the planned vote by ALAC to
> post internal policy
> related mail to a public website is sufficient to
> overturn a culture of
> secrecy. There are too many on ALAC who simply don't
> have the mindset
> that it is a completely public organization for
> which extremely few
> issues (mainly personal/personnel issues) should be
> in-camera.
> 
> I'm not sure how to address this but I can be
> certain that it's
> affecting our credibility. Robert can be singled out
> for doing an
> exemplary job of trying to confront this, but I'm
> wondering if the
> necessary change in culture is really happening --
> or if there is
> anything we can do about it.
> 
> 
> 4) Issues have been raised about addressing public
> complaints or
> interest to get involved. While I agree that ALAC
> itself is not equipped
> to be a consumer ombudsman within ICANN, perhaps we
> should start
> thinking of ways to enable/force it within ICANN.
> What does everyone think?
> 
> 
> 5) So that we do not get caught in making and
> defending positions at the
> last minute, are there any issues listed at
> http://icann.org/public_comment/ that warrant our
> specific work? The
> only one pressing on deadlines is the issue of
> single-letter
> second-level domains (ie. a.com or x.asia).
> 
> 
> - Evan
> 
> 
> ------
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> NA-Discuss at atlarge-lists.icann.org
>
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> https://st.icann.org/naralo/
> ------
> 



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