Andrew J. Pincus General Counsel U.S. Department of Commerce Dear Mr. Pincus, In your July 8th reply to Mr. Tom Bliley's letter to William Daley, you wrote: "There is concern in the Internet community about the possibility of over-regulation, and therefore ICANN should assure all registrars and registries, through contract, that it will restrict its policy development activities to matters that are reasonably necessary to achieve the goals specified in the White Paper and that it will act in accordance with the procedural principles set forth in the White Paper." How are the contractual requirements placed on domain name registrants by the ICANN Registrar Accreditation Policy - contained principally in Sections F, J, and K of that document - "reasonably necessary to achieve the goals specified in the White Paper"? Those requirements deprive domain name holders of their rights and makes them excessively vulnerable to reverse hijacking and unfair litigation. The ICANN Registrar Accreditation Policy is anti-user throughout. Nowehere does it mention any rights of a domain name registrant - the consumer - only rights of registrars, registries, and ICANN. It treats domain name registrants, the users of the Internet and the creators of e-commerce and the new wealth in the U.S., as objects to be exploited or as malefactors. Section I of the Accreditation Policy ("Definitions"), while carefully defining "registry", "registrar", "registry administrator", "ICANN", "NSI", et cetera, includes no definition or term or even a mention of the registrant or domain name holder. Section III.F. ("Rights in Data") says: "The registrar shall be permitted to claim rights in the data elements III.C.1.d and e and III.D.1.d through j concerning active SLD registrations sponsored by it in the registry for the .com, .net, and .org TLDs...". Data element D.1.f is "The name and postal address of the SLD holder". How is it that ICANN can give a registrar rights in a registrant's name and address? The registrar or ICANN would then be able to use the registrant's name and address as they see fit. For what purpose? To sell to third parties so that the registrar, the registry, and ICANN can profit from the registrant's personal data. Section III.J. ("Business Dealings, Including with SLD Holders") subsection 5 says: "Registrar shall register SLDs to SLD holders only for fixed periods. At the conclusion of the registration period, failure to pay a renewal fee within the time specified in a second notice or reminder shall result in cancellation of the registration." Defining registrations as being for only fixed periods makes them so precarious that no individual or company with small resources could afford to take the risk of investing in them. This provision alone could destroy free enterprise on the Internet. Registrations should be for indeterminate periods, at the discretion of the registrant. Isn't the DNS at the service of the registrant, the user, the consumer? This provision should read: "Registrations of SLDs will be for indeterminate periods of time and cancellation of the registration shall be at the discretion of the SLD holder, except in such cases where the registrant does not pay the applicable fees in a timely manner or when the SLD has been removed from the registrant by a decision of a competent legal authority." Section III.J.7.g says: "The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party." This is absurd. How can it be complied with, unless the registrant expend tens of thousands of dollars searching the world's trademark databases and the records of all company names registered throughout the world, an impossible task? And why should it be done by the registrant? It should be for a party that attacks the registrant's use of and right to the name to go to such expense, not the registrant. Section III.J.7.i says: "The SLD holder shall agree that its registration of the SLD name shall be subject to suspension, cancellation, or transfer by any ICANN procedure, or by any registrar or registry administrator procedure approved by ICANN, (1) to correct mistakes by Registrar or the registry administrator in registering the name or (2) for the resolution of disputes concerning the SLD name." What justification can there be for revoking a domain name because a registry or registrar made a mistake, that is, penalizing the registrant for an error made by the registrar or registry? As to disputes over a name, why should the domain name holder be subject to cancellation of the domain name as a means of resolving a dispute? Cancellation should only be a penalty imposed by a competent legal authority, not an extra-legal means of resolving disputes decided upon by a registrar or registry. Section III.J.7.i gives ICANN punitive judicial powers, against law and reason. Section III.K. ("Domain Name Dispute Resolution") says: "During the term of this Agreement, Registrar shall have in place a policy and procedure for resolution of disputes concerning SLD names." What policy or procedure will the registrar have in place? Any one that the registrar chooses, undefined by ICANN or by a legal authority, and to which the registrant will be required to submit without the registrant's input or consultation? There is no known arbitration procedure that is the work of only one side in a dispute. What about disputes arising from abuse of the domain name holder's rights by the registrar or the registry, such as for example the misuse of the holder's personal information, or unjustified interruption in service of the holder's domain name? Where are the provisions for protection of the registrant's, that is, the consumer's rights? Mr. Pincus, in your letter to Tom Bliley you went on to say that: "Department staff reviewed and commented on advance copies of the Registrar Accreditation Guidelines. Department staff suggested certain changes in the guidelines, and urged ICANN to include a series of questions designed to elicit public input on the matters addressed. ICANN staff implemented this and other suggestions. Department staff also facilitated a meeting between ICANN and NSI to discuss NSI's objections to the terms of the Accreditation Guidelines and the Accreditation Agreement. The Department also received, and conveyed to ICANN, input from members of the intellectual property community with respect to the Agreement. In both cases, ICANN revised its Accreditation Agreement based on the input received." Your Department, NSI, and the intellectual property community had, according to your letter, input into the drafting of the Registrar Accreditation Policy. What about the users, Mr. Pincus? What about the consumers who will be affected by this Policy? When were our comments, suggestions, and input incorporated into this Policy which affects us? Lastly, you wrote: "Just as the Department has statutory authorization to accomplish this mission, ICANN is also chartered in its articles of incorporation and bylaws to pursue DNS management activities." Is it your opinion that ICANN or any organization has the authority to manage wide-scale communications merely because it has put into its articles of incorporation and bylaws a statement that it intends to do so? Shall the ICIIU, then, or some other user or consumer group incorporate for the purpose of managing the DNS, and thereby acquire the power and authority to do so? Is this the means by which we might have a say in the management of the DNS we use? Yours, Michael Sondow ============================================================ International Congress of Independent Internet Users (ICIIU) http://www.iciiu.org [EMAIL PROTECTED] ============================================================
