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Registrar Accreditation Agreement Amendments

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Proposed Amendments

Below is the full text of possible amendments to the RAA. These documents were assembled first as a result of Paul Twomey's recommendations that were announced on 21 March 2007. These were discussed briefly with the gTLD Registrar Constituency at the Lisbon and San Juan ICANN meetings and publicly at the Workshop on Protection of Registrants in San Juan, Puerto Rico, 25 June 2007.

The proposed amendments describe the intent and purpose of the proposed amendment, as well as some of the issues concerning potential implementation of such an amendment. Comments on each of these can be made in the comment forum.

 

Accreditation by Purchase

Issue:
Incorporate provisions in the Registrar Accreditation Agreement (RAA) to govern the terms under which a registrar can be sold and continue to retain its ICANN accreditation.

Background:
While ICANN follows specific guidelines, which include requiring applicants to meet certain minimum qualification to become an ICANN accredited gTLD registrar, there are other means by which an entity can acquire accreditation rights. The two primary mechanisms are to apply for an assignment of the accreditation by ICANN from one company to another. The other mechanism is for one entity to acquire the entire assets of a company that holds an ICANN accreditation. The assignment process is similar to the initial application process and receives extensive scrutiny, while the latter can be done without consulting ICANN and without the new owner satisfying the qualification requirements. Parties interested in becoming ICANN accredited without the scrutiny of the application process can avoid this by acquiring an existing registrar.

Statement of Problem:
The process followed to consider an application for accreditation includes requiring that certain qualifications be met and, as part of the application process, ICANN conducts various background investigations into the entity and its principal owners, partners and managers. When an applicant appears to be poorly suited for accreditation purposes, it is encouraged to withdraw the application or to change the underlying factors until it meets the requisite qualifications. An entity that bypasses this process by purchasing a previously approved entity, can function with the ICANN accreditation and hold itself out in the marketplace as though it had met all of the qualifications. In fact, there are companies that market existing accredited registrars to other entities for this purpose. (RegisterFly acquired its accreditation in this manner.)

Since ICANN approves companies, not individuals, a company with a new owner is still the entity that had been approved; hence additional contractual terms might be required to impose conditions on new owners.

Potential Outcomes:

  • Assuring that all entities doing business as ICANN accredited registrars meet the same minimum requirements will promote stability.
  • Registrants can be assured that a registrar claiming to be ICANN accredited has met the minimum requirements.
  • Placing conditions on purchases of accredited entities could delay or inhibit otherwise acceptable sales.
  • Such restrictions could reduce the value of a registrar entity in the marketplace.

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Enforcement Tools

Issue
Amend the Registrar Accreditation Agreement (RAA) to include additional contract enforcement tools.

Background
The RAA does not contain graduated enforcement tools. Pursuant to the RAA, the only remedy available to ICANN if a registrar fails to cure a breach of the RAA is termination of the agreement. This is challenging and impractical, as many contract breaches are material but do not warrant termination of the agreement, or breaches occur and are cured on a repeat basis. For example, if a registrar fails to comply with the requirements of a consensus policy or fails to comply with the RAA requirement to maintain registration data, these are quire serious contract breaches; however, they do not necessarily warrant contract termination. In the absence of graduated contract remedies, ICANN has been limited to providing counselling to those registrars who breach material terms of the RAA and requesting that they abstain from engaging in such behaviour in the future.

Statement of Problem
Historically, ICANN has been reluctant to terminate an agreement for anything other than flagrant, repeated failures to cure material breaches of the RAA, because termination is viewed as an extreme remedy, with negative consequences to registrants. As a result, registrars, registrars are aware that there are no substantive consequences for breaching the RAA. A graduated sanctions scheme based on the nature and seriousness of alleged breaches will allow ICANN to more effectively enforce the terms of the RAA and thereby encourage broad community compliance with RAA requirements.

Potential Outcomes

  • Compliance could improve as registrars will seek to avoid being the subject of enforcement proceedings.
  • Lawsuits could be filed against ICANN when new enforcement remedies are invoked.
  • Graduated sanctions would provide more measured responses to less serious breaches.
  • Sanctions could be designed to penalize registrars without harming registrants.

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Group Liability

Issue
Incorporate terms in the Registrar Accreditation Agreement (RAA) that address the responsibilities of a parent owner/manager when one or more of a "family" of registrars fails to comply with ICANN requirements.

Background
For business reasons, often related to enhancing access to the deleted names pool, some companies have chosen to establish multiple ICANN accredited registrars that are either wholly-owned or, in some other way, share management and resources. These groups range from two to over one hundred registrars in a group. Roughly two-thirds of all accredited registrars are part of a larger group. Most of these groups maintain a solid working relationship with ICANN due to their size and ongoing interaction on a variety of fronts. Occasionally, problems have arisen with one or more registrars within a group.

Statement of Problem
Under existing practices, each registrar accreditation is treated as a separate contract with a separate entity, though some efficiencies have been gained through batching invoices and other communications. Nevertheless, the opportunity exists for a subset of a group of commonly owned or managed registrars to pursue practices that are non-compliant with their ICANN contracts. At present, ICANN's recourse involves taking steps to address individual registrars, but does not have a direct contractual means for including the larger company and its other accredited entities in the process. Our experience has shown that failure to comply with some aspect of the ICANN contract can be symptomatic of larger problems within the company. In terms of group ownership/management, this could eventually affect more registrars within the group.

Potential Outcomes

  • Potential negative practices could be discouraged.
  • ICANN would have an additional enforcement mechanism available to discourage non-compliance.
  • Registrar owners/managers could experience negative consequences by registrar entities that have done nothing inappropriate.
  • Registrants could benefit by more effective contract compliance.
  • ICANN might identify and address underlying problems that could affect multiple registrars sooner than otherwise possible.
  • Registrar entities within multiple registrar groups could perceive themselves as inappropriately punished for the action of a related entity outside of its control.

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Private Registrations & Registrar Data Escrow Requirements

Issue
Amend the Registrar Accreditation Agreement (RAA) to require registrars to escrow contact information for customers who register domain names using Whois privacy and Whois proxy services.

Background
Many registrars, resellers, and unofficial resellers (such as attorneys, hosting companies, and others who have no official relationship with a registrar, but who register domain names on behalf of their clients) offer some form of Whois privacy or proxy service to prevent the display of the contact information of the beneficial user of the name.

Whois privacy services generally display some registrant information, such as registrant name, but they conceal other identifying information, such as address, telephone number, and email address, by providing alternate contact information, often that of the registrar or privacy service provider.

Whois proxy services generally do not allow the display of any of the beneficial user's registration information via Whois. Instead, the proxy acts as the customers agent and registers the domain name, naming the proxy as registrant, administrative, technical and billing contacts. Under such arrangements, the proxy then licences use of the domain name to the beneficial user.

Pursuant to the "data escrow" provision of the RAA, registrars are obligated to submit registrant, administrative, technical and billing contact information for each gTLD name to ICANN or an approved escrow agent. The RAA does not require registrars to escrow additional information, such as that of the beneficial user of a name when the beneficial user uses a Whois privacy or proxy service. In the case of these "private" registrations, the contact information of the beneficial user is not escrowed and is unavailable in the event the registrar's accreditation is terminated with its registrations transferred to another registrar.

Statement of Problem
Given the widespread use of Whois privacy and proxy services, some form of protection should be afforded to the beneficial users of names registered through privacy and proxy services in the event the registrar's accreditation is terminated. Although the planned implementation of the Registrar Data Escrow (RDE) program permits registrars to optionally escrow beneficial user data, the escrow of beneficial user data cannot be made mandatory absent modification of the RAA or consensus policy.

Potential Outcomes

  • Customers who used registrar-provided Whois privacy or proxy services would be protected in the event their registrar's accreditation agreement is terminated.
  • Customers may unintentionally share "private" information with ICANN or a registrar other than the registrar of their choosing in the event data is retrieved from escrow.
  • Customers who register domain names using the Whois privacy or proxy service of an entity other than an ICANN-accredited registrar would not be protected.
  • Some customers may elect to utilize registrar-provided privacy/proxy services instead of third party services to ensure protection in the event of termination of their registrar's accreditation.
  • Some customers may elect not to utilize registrar-provided privacy/proxy services in order to prevent sharing of their contact information.

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Contractual relationships with resellers

Issue
Incorporate terms in the Registrar Accreditation Agreement (RAA) that augments the responsibilities placed on registrars with regard to their relationships with resellers.

Background
ICANN's primary relationship with entities that sell gTLD registrations is governed by the RAA. While many registrars act as retail outlets for domain name registrations, some function exclusively as "wholesale" outlets that market domain name registrations through reseller entities. Other registrars function using a combination retail/wholesale model. Problems encountered by registrants when dealing with a reseller can be aggravated by the fact that the business relationship is not direct. At times the customer has no idea that there is a registrar responsible for its registration. ICANN has no direct contractual relationship with resellers.

Statement of Problem
ICANN receives numerous complaints about reseller practises that it cannot directly address, but must address through the registrar. Experience has varied widely in terms of responsiveness and influence over reseller behavior among various registrars. Communications, compliance, and confusion are hallmarks of these problems. In addition, because an additional business relationship is involved (registrar-reseller), there is one more opportunity for problems to arise. A falling out between registrar and reseller can leave the registrant in the middle. Even if a registrant knows the identity of the registrar for its registrations, it may encounter difficulty in performing typical registrant functions through the registrar if the registrar does not have customer records that enable it to adequately identify the customer as the rightful registrant.

Furthermore, many resellers have no understanding or appreciation of the terms of the RAA that govern relationships between registrar and registrant. Opportunities for non-compliance can be multiplied in such circumstances.

Potential Outcomes

  • Registrants could benefit from enhanced reseller compliance with ICANN policies.
  • Resellers often wish to keep the identity of the registrar undisclosed in order to enhance its own business relationship with its customer – new requirements could interfere with this.
  • Registrars with major reseller relationships could find new terms costly to implement.
  • Registrant confusion could be fostered by terms that require greater involvement of the registrar in the reseller-registrant relationship.

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Operator Skills Training and Testing

Issue
Amend the Registrar Accreditation Agreement (RAA) to require operator skills training and testing for all ICANN-accredited Registrars.

Background
The registrar business is a specialized business that requires specialized knowledge and skills to operate effectively and in compliance with RAA requirements. Currently there is no established process to assess whether registrars have the requisite skills necessary to successfully operate their businesses and consistently perform to a standard upon which registrants can rely. The accreditation process deals with qualifications, but not the specific skills of the registrar personnel. Over the years, ICANN has observed that registrars have developed a myriad of business models and management processes. However, some registrars appear to operate their businesses more efficiently and effectively than others and experience fewer RAA compliance problems. Operator skills training and testing for newly accredited registrar operators, as well as for experienced registrar operators, designed to provide critical information and operational skills, as well as test competence, would more than likely improve operator performance, result in the establishment of consistent operational practises and improve overall compliance with RAA requirements.

Statement of Problem
There are approximately 900 ICANN-accredited registrars operating with various levels of competence, skill, education and experience. Registrants have no way of knowing if a registrar has the necessary skills and training to provide the services promised in a registration agreement. By requiring operator skills training and testing in the RAA, all registrars will possess common skills which will enable them to perform in compliance with RAA requirements and effectively provide the services promised in a registration agreement.

Potential Outcomes

  • Compulsory training and testing could establish a common standard of registrar operator performance upon which registrants can rely.
  • Compulsory training and testing could result in fewer registrar failures.
  • Compulsory training and testing could become an added expense for registrar operators.
  • Registrant confusion could be diminished by making the relationship between registrant and registrar more clear.

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