Here are the comments I just submitted.

--Wendy

-------- Original Message --------
Subject: Comments of Wendy Seltzer on RAA Amendments
Date: Fri, 13 Jan 2012 18:13:15 -0500
From: Wendy Seltzer <[log in to unmask]>
To: [log in to unmask]

Comments on the Preliminary GNSO Issue Report on the Registrar
Accreditation Agreement Amendments

Given time constraints, I submit these comments in my individual capacity.

As an initial matter, I commend the Board for initiating a PDP to send
the questions of amendments to the Registrar Acreeditation Agreement
to the GNSO Council for policy development. As the contractual terms
on which Registrars can sell domain names to Registrants are core to
the rights of Registrants and through them to the Internet-using
community, the multi-stakeholder GNSO is the proper place to address
their amendment.  While some terms may be appropriate for bilateral
negotiation, the Registrar obligations that impact Registrants and
Internet users must be subject to community debate and decision.
ICANN should take its side of the negotiation from the
community.

The failure of the 18 October 2010 report to achieve GNSO Council
consensus, as noted on p. 16 of the Preliminary Issue Report, means
that none of its recommendations can be said to have community
consensus.

In particular, as a non-commercial Internet user and privac advocate,
I have great concerns about the proposed requirements that Registrars
validate Registrant data, beyond the requisites for obtaining payment
for domain registrations (A.1.b).  Sadly, as we still lack consensus on
privacy protections for personal data, ``inaccuracy'' remains one of
the better options for individual self-help on the privacy
front. Moreover, the costs of validating data, across the range of
individual registrants and jurisdictions, would likely be passed along
to registrants, raising their costs -- if it did not exclude some
would-be registrants altogether. The proposed fields are significantly
overbroad from what is required to place an entry in a database.

The proposed obligations on Privacy & Proxy services (B) could stretch
ICANN's contractual limits, and again threaten the privacy and safety
of those who need domain names to secure stable locations for their
lawful but unpopular online speech. ICANN's limited powers cannot
reach beyond those parties with whom it has contracts -- by design. To
attempt to control third-party services by restricting the business
opportunities of Registrars raises significant legal and policy
challenges to the model. ICANN cannot make Registrars liable as
overseers for every registration and use of a domain name. It would
interfere with recognized privileges, such as attorney-client
confidentiality, to require disclosure obligations of privacy providers.

Regarding WHOIS data, I agree with the Report that we should await the
results of various studies ICANN and the GNSO have commissioned. As the
WHOIS Review Team report is still out for comment, its conclusions
cannot be considered matters of community consensus.

Finally, the recommendations of ``Registrar duty to investigate''
so-called ``malicious conduct'' (A.1) impose an improper intermediary
liability, with likely chilling effects on online expression. They
open an avenue for denial of service attacks on unpopular but lawful
speech and raise the specter of takedown without due process for such
speakers.

Freedom of Expression Impact Analysis.
The staff asks for input on how to conduct a Freedom of Expression
impact analysis.  I suggest that the analysis include consultation with
experts in privacy and human rights, especially the right of free
communications.  The analysis should consider both direct and indirect
impacts on expression, with special consideration of jurisdictional
differences in the definition of "law enforcement" and the threats
online speech may face.

I further endorse the comments of Milton Mueller, earlier in this forum.

--Wendy Seltzer
Member, Non-Commercial Stakeholder Group
-- 
Fellow, Yale Law School Information Society Project
Fellow, Berkman Center for Internet & Society at Harvard University
http://wendy.seltzer.org/
https://www.chillingeffects.org/