More than .xxx;
More than new gTLDS;
More even than the GAC on the issue of ‘sensitive strings’;
The Registrars’ attitude on the process of negotiating changes to the Registrar Accreditation Agreement (RAA) is, in my opinion, the greatest threat to the ICANN model.
The Registrars have flatly refused to allow members of the ICANN community to participate in the negotiations on possible amendments to the RAA. They have even refused access to the members of the GNSO Non Contracted Parties to these negotiations as observers. This is a rejection, I believe, of the fundamental nature of ICANN, and is a most pernicious threat to ICANN’s ability to do its job properly.
Not only have the Contracted Parties prevented the acceptance of a Working Group Report that recommends adding observers to the group, they have stated flatly and unequivocally, that even if the GNSO were to succeed in a motion to allow Observers, they would not agree and would not participate in any discussion that included observers.
The Registrars insist on negotiating with ICANN Staff in a secret back room with no one watching. True they plan to give periodic reports, but these are no substitute for participation.
This goes against every ICANN requirement for transparency. This also goes against the fundamental ICANN bargain that allows the contracted parties to have a voice in their regulation in exchange for the participation of those who are affected by the contracts - the Commercial and Non Commercial Users of the DNS as well as the community at large.
In refusing so absolutely, the Registrars are challenging the fundamental agreements that give ICANN legitimacy and precipitating a real crisis in the multistakeholder fabric of ICANN.
The basis of the Registrar refusal, as I understand it, is that the contract is between the Registrars and ICANN. As such having a bunch of interlopers observing, commenting and possibly even having a position, is something they will just not abide. No discussion or compromise on this issue will be brooked.
There have been several startling statements of this refusal that have been made verbally and that can be found in various meeting transcripts. One clear statement was made on the GNSO list:
From: "Tim Ruiz" <email@example.com>
Date: 8 March 2011 22:41:09 PST
Subject: RE: [council] RAA Motion
As I’ve tried to point out before, this is a waste of time. The RAA is between ICANN and Registrars and only they will decide how the process takes place. And as was made clear to the RAA WG, Registrars will not engage if observers are present. All the Council should do at this point is thank the WG and let Registrars and Staff take from it there.
So the question comes down to: Who is ICANN?
The easiest and most complete answer: ICANN is us.
ICANN is not just the CEO.
ICANN is not just the Operational Staff.
ICANN is not just the Registrar Support Staff.
ICANN is not just the General Counsel.
ICANN is the multistakeholder organization as defined by the Articles of Incorporation, the Bylaws and even the Registrar Accreditation Agreement.
If you go to About ICANN on the web site you see:
ICANN was formed in 1998. It is a not-for-profit public-benefit corporation with participants from all over the world dedicated to keeping the Internet secure, stable and interoperable. It promotes competition and develops policy on the Internet’s unique identifiers.
You will also see an organizational chart that shows that ICANN Staff is but one part of ICANN.
Except as otherwise provided in the Articles of Incorporation or these Bylaws, the powers of ICANN shall be exercised by, and its property controlled and its business and affairs conducted by or under the direction of, the Board.
ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.
In carrying out its mission as set out in these Bylaws, ICANN should be accountable to the community for operating in a manner that is consistent with these Bylaws, and with due regard for the core values set forth in Article I of these Bylaws.
In other words, in all it does ICANN is governed by its bylaws, which includes accountability to its community as one of the constituent parts defined in the bylaws.
Also, in all it does ICANN is governed by its commitment to transparency. Secret negotations without observers are not transparent by any definition of the word.
4. The Corporation shall operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law and, to the extent appropriate and consistent with these Articles and its Bylaws, through open and transparent processes that enable competition and open entry in Internet-related markets. To this effect, the Corporation shall cooperate as appropriate with relevant international organizations.
Again, the primary importance of openness and transparency in it operations consistent with the Bylaws.
(Note I included the entire quote to remind people about the commitment to International Law, something that can’t be done often enough and something that is also frequently denied by US national ICANN participants - but that is another discussion)
2.3 General Obligations of ICANN. With respect to all matters that impact the rights, obligations, or role of Registrar, ICANN shall during the Term of this Agreement:
2.3.1 exercise its responsibilities in an open and transparent manner;
2.3.2 not unreasonably restrain competition and, to the extent feasible, promote and encourage robust competition;
2.3.3 not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and not single out Registrar for disparate treatment unless justified by substantial and reasonable cause; and
2.3.4 ensure, through its reconsideration and independent review policies, adequate appeal procedures for Registrar, to the extent it is adversely affected by ICANN standards, policies, procedures or practices.
So ICANN is committed to transparent operation in all matters related to the registrars. That is, no secrets. Not only is it illegitimate for the Registrars to demand a private negotiation with ICANN Staff, it is against the rules for ICANN Staff to agree to such a situation.
This clause also indicates, by its reference to reconsideration and independent review, that the RAA process is part of other ICANN processes and not some special exception to normal ICANN processes.
The RAA is an agreement between the Registrars and Internet Corporation for Assigned Names and Numbers, the California non-profit, public benefit corporation. The nature of that non-profit, public benefit organization is defined in the Bylaws, and neither the Registrars nor ICANN Staff can subvert that definition, and the rights of the stakeholders, without risking the destruction of one of the most fundamental basis of ICANN.
I hope that the Registrars find the wisdom to end their destructive behavior. I also hope the ICANN Staff has the sense not to enter into secret negotiations with the Registrars that exclude the rest of ICANN - the community that makes ICANN what it is.