One of the essential features of the social compact that makes ICANN viable in its stewardship of the Domain Name system is that the operations of the Contracted Parties, i.e. Registrars and Registries, are governed by the cooperation of the contracted parties and the non-contracted parties, i.e. the stakeholders, in the creation of policy. In ICANN, contracts and other agreements are the method by which this policy is instantiated.

The Registrar Accreditation Agreement (RAA) is one of those agreements that are expressions of ICANN policy. The RAA is the method by which the behavior of registrars is regulated by the multistakeholder community. It is in the purview of the GNSO, all of the GNSO, to participate in discussions concerning any changes to be made to the RAA.

Because of the Registrars Stakeholder Group (RrSG) insistence, a working group chartered to investigate issues that needed to be reviewed for possible changes to the RAA recommended that instead of having the members of the GNSO community participate in multistakeholder discussions, representatives be able to participate as observers. To some, like me, this was already an affront to the GNSO multistakeholder mandate. But as this was a recommendation of the WG it was brought to a motion in the GNSO.

Instead of accepting the compromise hammered out in the WG that they were members of, the Registrars have flatly refused to accept the recommendations of the WG; they have refused to allow members of the GNSO Non Contracted Parties to participate in these discussion even in the diminished role of observers. They have also rejected giving the rest of the ICANN community any view into their discussion with the staff. This is a rejection, I believe, of the fundamental nature of ICANN, and is a threat to ICANN’s ability to meet its Affirmation of Commitments (AOC) mandate for transparent and accountable governance.

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.

Swallowing their pride at this rebuff, the GNSO Non Contracted parties, i.e. the Commercial and Non-Commercial Stakeholders, have now put a motion on the table that includes a still further diminished role:

...

Whereas, a GNSO Council motion recommending that Staff adopt the process specified as Process A in the Final Report to develop a new form of RAA with respect to the High and Medium Priority topics described in the Final Report did not pass;

Whereas, the GNSO Council desires to approve an amended version of the process specified as Process B in the Final Report to develop a new form of RAA with respect to the High and Medium Priority topics described in the Final Report.

NOW THEREFORE, BE IT:

RESOLVED, that the GNSO Council recommends that Staff adopt an amended version of the process specified as Process B in the Final Report to develop a new form of RAA with respect to the High and Medium Priority topics described in the
Final Report. As amended herein, Process B entails:

1. The prioritized list of topics as set forth in the Final Report is sent to the GNSO Council and ICANN Staff for identification of any topics that would require consensus policy development rather than RAA contract amendment. This step shall be completed not later than sixty (60) days after the date of this resolution.

2. ICANN Staff will schedule a public consultation, to be held at the first ICANN public meeting that occurs after completion of the review in Step 1, to provide members of the ICANN community with the opportunity to articulate their support of and/or objection to the High and Medium Priority topics described in the Final Report.

3. Within thirty (30) days after the public consultation described in Step 2, negotiations begin with the Negotiating Group consisting of ICANN Staff and the Registrar Stakeholder Group (as a whole).

4. The Negotiating Group shall provide, for public comment, written reports monthly on the status and progress of the negotiations. Such reports shall include proposed text under consideration and identify items and text agreed upon by the Negotiating Group. The monthly report shall identify (a) topics identified in the Final Report as High or Medium Priority and that were not determined in Step 1 as requiring consensus policy development; and (b) proposed amendments put forth by any Stakeholder Group, Constituency, and/or Advisory Committee (collectively, the “Rejected Topics and Amendments”), if any, that have been rejected by the Negotiating Group.

5. The Negotiating Group reviews public comments received and continues negotiations as necessary. Steps 4 and 5 shall repeat as necessary; provided, however, that the full final draft of the new RAA must be posted for public comment not later than September 17, 2012.

6. Subject to the date requirement in Step 5, ICANN Staff and the Registrar Stakeholder Group shall determine when the full final draft of the new RAA is ready to be posted for public comment. The full final draft of the new RAA that is posted for public comment shall be accompanied by a detailed written explanation, approved by both Staff and the Registrar Stakeholder Group, that sets forth the basis for the rejection of all Rejected Topics and Amendments.

7. The GNSO Council shall review the full final draft of the new RAA, consider public comments, and vote on approval of the draft new RAA. A Supermajority vote of the GNSO Council is required to approve the new RAA.

8. If the GNSO Council approves the new RAA, the new RAA goes to Board for approval.

9. If the GNSO Council does not approve the new RAA, the new RAA is sent back to the Negotiating Group with appropriate feedback for reconsideration. Repeat from step 7.

In other words, no observers, but at least honest and complete reporting and review.

It is reported that the Registrars, along with their partners in the Contracted Parties House the Registries, will reject even this watered down notion of transparency, accountability and community input. The Registrars insist on negotiating with ICANN Staff in a secret back room with no one watching and without treports and review. No transparency and no accountability will be allowed; the Registrars are above such petty considerations.

This goes against every ICANN requirement for transparency and accountability. 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 ICANN 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, having a opinion, and possibly even commenting, 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 example is the statement was made on the GNSO list:

Begin forwarded message:

From: “Tim Ruiz”

Date: 8 March 2011 22:41:09 PST
Cc: [email protected]
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.

Tim

So the questions comes down to:

Who is ICANN?

The easiest and most complete answer:

ICANN is us.

ICANN is not just the President/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.

In the Bylaws one sees that:

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 include 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 negotiations without observers or review are not transparent by any definition of the word.

In the Articles of Incorporation it says:

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 its operations consistent with the Bylaws.

It is also interesting interesting to note that the current versions of the Registrar Accreditation Agreement (RAA) says:

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 quote from the RAA 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 the 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 bases 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.

As things stand now, I believe that the Registrars’ attitude on the process of negotiating changes to the Registrar Accreditation Agreement (RAA) is the greatest threat currently faced by ICANN. This is an issue that will not go away. It may be another year or two until the RAA under discussion comes up for approval by the GNSO, but the destruction being done by the Registrar Stakeholder Group to the fabric of the ICANN multistakeholder social compact will remain a topic between now and then, and will need to be one of the focal points of the next Affirmation of Commitments on Accountability and Transparency.