[At-Large] [ALAC] Fwd: Re: Follow-up on an enquiry during Durban Public Forum

Carlton Samuels carlton.samuels at gmail.com
Wed Nov 13 17:09:10 UTC 2013

Y'all know I so too like when words come together to express thinking. I
have to give it to Sam.  This was a magnificent job of shaping the
conversation as I have ever seen out of ICANN.  Hired.

So now, the Registrant Rights and Benefits Spec doc was merely a collector
for the T&C applicable to registrants already defined in the contract!
 Well knock me down and steal mah teeth. If ICANN Legal was been paid by
the word for contract prep etc, it would be plausible.  Message to me,
follow the money.

All this aside, 2 strategic issues emerge - well, more illuminated here
than emerging.  The RAA is arguably the single most important outcome for
continuance of the DNS. It would also be the evidence of the consensus
policy decisions derived from a multi-stakeholder governance and policy
development model to which this enterprise claims it is bounded.  In other
words the RAA ought to be, of right, the highest manifestation of ICANN
consensus policy. At least this would be the logical view.

What is outlined here in this response says 1) the RAA may not be construed
as nothing more than a contract between ICANN the corporate entity and a
foundational set of beneficiaries of the DNS; registrars 2) One set of
beneficiaries of the DNS, registrars, are more equal than others 3)
Notwithstanding a concerted demonstration of the public interest, it would
be highly obstructionist to demand that ICANN meet it obligations to the PI
in contract.

What then is the obligation this revelation imposes on the rest of our


Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*

On Sun, Nov 10, 2013 at 4:15 AM, Olivier MJ Crepin-Leblond <ocl at gih.com>wrote:

> Dear all,
> please be so kind to find the answer below, to the question which Evan
> had asked at the public forum in Durban.
> The question was: "why is Section 9 of the RAA entitled 'Registrant
> Benefits and Responsibilities' ?"
> Kind regards,
> Olivier MJ Crépin-Leblond
> ALAC Chair
> -------- Original Message --------
> Subject:        Re: Follow-up on an enquiry during Durban Public Forum
> Date:   Wed, 30 Oct 2013 12:46:34 -0700
> From:   Samantha Eisner <Samantha.Eisner at icann.org>
> To:     Evan Leibovitch <evan at telly.org>, Olivier MJ Crepin-Leblond
> <ocl at gih.com>
> CC:     Fadi Chehade <fadi.chehade at icann.org>, John Jeffrey
> <john.jeffrey at icann.org>, Cyrus Namazi <cyrus.namazi at icann.org>, ICANN
> At-Large Staff <staff at atlarge.icann.org>, Cassia Oliveira
> <cassia.oliveira at icann.org>
> Dear Olivier and Evan,
> In response to your query below, during the course of the 2013 RAA
> negotiations, it became clear that the negotiating teams and the community
> had different understandings of what purpose the document formerly
> referred to as "Registrant Rights and Responsibilities" was intended to
> serve.  While the negotiating teams from ICANN and the Registrars agreed
> that this document would be a compilation only of obligations clearly
> found in the contract, the community input at public sessions on this
> topic, as well as in the public comment forum, suggested that the
> "Registrant Rights and Responsibilities" document should serve a broader
> scope, encompassing issues such as external legal rights relating to
> privacy and intellectual property.
> As explained in the summary of public comments on a proposed final version
> of the RAA, "For the Registrant Rights and Responsibilities document,
> there were two versions of a new document posted by commenters as
> alternatives to the version posted for comment. The current Registrant
> Rights and Responsibilities document, as posted with the agreement, was
> not mean to be a full statement of all registrant rights and
> responsibilities arising out of being a domain name registrant. Rather, it
> is specifically targeted to identify contractual rights and
> responsibilities that are stated within the RAA, as opposed to looking to
> consensus policy or to broader principles of privacy rights. While the
> suggestions raised in the versions presented during the comment period
> incorporate some ideas that could be of great value for the community to
> discuss, they are not geared to the limited purpose of the document. To
> help clarify the purpose of the document, ICANN will be considering
> clarifying the title of the document prior to finalizing the RAA."
> http://www.icann.org/en/news/public-comment/report-comments-proposed-raa-21
> jun13-en.pdf.
> The term "benefits" was agreed upon by ICANN and the Registrars
> Negotiating Team to achieve two purposes - first, to clarify the purpose
> of the document so that it was not seen a broad, sweeping statement of
> registrant rights, as commenters clearly identified.  Second, the use of
> the term "benefits" helps denote a balance between the listing of key
> contractual responsibilities to which registrants are bound, and the
> positive things that the registrants are provided under the agreement,
> such as access to information. There is no explicit legal meaning that we
> were trying to afford to the word "benefit", instead the focus was on
> removing the confusion inherent in the continued use of the term "rights"
> where not all applicable rights were enumerated.
> Best,
> Samantha
> --
> Samantha Eisner
> Senior Counsel, ICANN
> 12025 Waterfront Drive, Suite 300
> Los Angeles, California  90094
> Direct Dial: +1 310 578 8631
> samantha.eisner at icann.org
> On 9/25/13 6:33 PM, "Olivier MJ Crepin-Leblond" <ocl at gih.com> wrote:
> >ALAC Correspondence Ref: AL-ALAC-CO-0913-01-00-EN
> >
> >Dear Fadi,
> >
> >I am following up on a question which was asked as an individual by my
> >colleague Evan Leibovitch during the Public Forum in Durban:
> >
> >Quoting the transcript of the session, page 87:
> >
> >EVAN LEIBOVITCH: Thanks, Steve. I'm Evan Leibovitch, vice chair of the
> >ALAC speaking on my own behalf. But this is based on a number of
> >conversations with a number of people within the At-Large and elsewhere.
> >Without coordinating it at all with Phil, it relates to something he
> >said and it has to do with the relationship between benefits and rights.
> >Somewhere, somehow, section 9 of the RAA had some strange search and
> >replace happen where the words "rights" were taken out and
> >"responsibilities" put in. Not only that but it was done in a confusing
> >way. The document for section 9 heading says "benefits and
> >responsibilities" and the first section talks about rights. Since then
> >there have been many talks this week about rights and responsibilities.
> >The "B" word hasn't been used anywhere, but there it is in the RAA. Can
> >someone explain how it crept in, why it's there, and what is meant by
> >the distinction between rights and benefits? I think to a lot of people,
> >there's a very real distinction in the word. I'd like to know how it
> >crept into the RAA.
> >
> >STEVE CROCKER: Management response here?
> >
> >FADI CHEHADE: We'll look into that. That's all I can say. I'm trying to
> >find out some facts, but I appreciate your comment. I appreciate the
> >distinction between the two. That's all I can say.
> >
> >--- end of transcript ---
> >
> >The ALAC has discussed this point during its August and its September
> >monthly calls and on its mailing lists and this has proved to be a
> >particularly important point which needed clarification. I am therefore
> >writing to you to ask for this clarification.
> >
> >It is understood that the RAA is a legal contractual document, several
> >copies of which were signed in Durban. The page in question is Section
> >9, entitled "Registrants' Benefits and Responsibilities", page 68.
> >
> >Until the title of this section appeared, the notion of "Registrant
> >Rights and Responsibilities" was the notion that prevailed, certainly in
> >the At-Large world. As Evan Leibovitch mentions in his comment during
> >the public meeting, there is much difference between a Registrants'
> >Rights and a Registrants' Benefits.
> >
> >But the confusion is then exacerbated by the fact that the next line on
> >that same RAA page is a sub-heading of "Domain Name Registrants' Rights"
> >and the list printed on that page very clearly reads as a list of
> >Registrant Rights. RAA signatories are therefore clearly signing on a
> >list of Registrants' Rights.
> >
> >Furthermore, Section 3.16 of the same RAA document points to "an
> >educational webpage summarizing the terms of the Registrar Accreditation
> >Agreement and related Consensus Policies (as of the date of this
> >Agreement, located at:
> >
> http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.h
> >tm)."
> >
> >On the other hand, Section 3.7.10 mentions "Registrants' Benefits and
> >Responsibilities" as: "Registrar shall publish on its website(s) and/or
> >provide a link to the Registrants¹ Benefits and Responsibilities
> >Specification attached hereto and shall not take any action inconsistent
> >with the corresponding provisions of this Agreement or applicable law."
> >
> >and:
> >
> >"3.12.7 Its Resellers shall publish on their website(s) and/or provide a
> >link to the Registrants¹ Benefits and Responsibilities Specification
> >attached hereto and shall not take any action inconsistent with the
> >corresponding provisions of this Agreement or applicable law."
> >
> >So what we have is references to both Rights and Benefits, and I, like
> >my colleague Evan Leibovitch, would like to point out that these are
> >entirely different words meaning entirely different things -- and I note
> >that from your response in the ICANN Public Forum, you appreciate the
> >distinction between the two.
> >
> >Would you then please kindly provide clarification as to how the title
> >of that section is called "Registrants' Benefits and Responsibilities"
> >when there are clearly no "Benefits" but indeed there are "Rights" listed?
> >
> >Warmest regards,
> >
> >Olivier MJ Crépin-Leblond
> >ALAC Chair
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