Thanks so much for pointing this out so clearly.

Basically, if i understand, ICANN can do so because all vendors do so.

Registries, if they don't sign the RA, are showing us what we could do.

avri

On 4 May 2013, at 05:30, Timothe Litt wrote:

>> It is unimaginable for a party to sign a contract which allows the
>> other party to unilaterally change the terms of the contract. 
> One might think so.  One might even wish it were so.  But it happens every day.  You probably clicked-through such language many times when signing-up for on-line services.  Attorneys automatically include these provisions in every draft and try to minimize what they give up in negotiations when they are noticed - when they have to negotiate.
> 
> Your credit card agreement includes such language.  So do the terms and conditions of on-line retailers, ISPs - and yes, registries - virtually every persistent consumer agreement in the US.  Quite frequently, they don't even bother to give you notice of changes - "you must keep checking the website for changes to these terms and are deemed to have consented if you keep using the service after we post the change."  Unless some consumer protection law requires proactive  notice.  Usually the only recourse is 'if you disagree, you can stop using the ' (card, service, website).
> 
> Of course, this is always asymmetric.  The party with power 'must have the flexibility to deal with unexpected circumstances' and can't be bothered to deal with each individual consumer.  But 'my employer went out of business so I need to reschedule payments until I get a new job' isn't in the agreement because consumers have no leverage.
> 
> From the point of view of the provider, this is actually quite understandable.  Just imagine a bank having to negotiate a new - potentially different - signed agreement with every card-holder every time the interest rate changed.  Or a registrar having to negotiate with every domain name holder when a new abuse scheme is developed...  A provider can't afford to deal with each consumer - at the prices we demand for services.
> 
> This isn't to say that providers are necessarily evil.  We generally rely on their being reasonable in how they apply their power.  Of course absolute power does tend to corrupt, absolutely.
> 
> When the power is more equal - e.g. two equally-sized corporations - the attorneys will try for mutual written notice, provide a formal change procedure, try to anticipate contingencies - in short, treat each-other with some respect.
> 
> I'm not defending the practice - I think there needs to be a reasonable compromise between consumer protection and what's practical for providers.  In part that means that groups like ours need to aggregate the voices of constituents in these agreements. See my recent comments on proactive notice to end-users in the discussion about registrant rights and responsibilities...
> 
> Cheer Verisign on if you like - the drafting process as presented in that letter seems reprehensible.  But it is worth noting that if Verisign and the registrars win this battle, the benefit will not filter down to your agreement with them.  Verisign will still put 'we can unilaterally change this agreement' in the end-user agreement for your domain name, and the use of their website.  And they won't even notice the inconsistency - unless we say something.
> 
> Timothe Litt
> ACM Distinguished Engineer
> --------------------------
> This communication may not represent the ACM or my employer's views,
> if any, on the matters discussed.
> 
> On 04-May-13 00:00, Horacio T. Cadiz wrote:
>> On 05/04/2013 05:10 AM, Robin Gross wrote:
>>> Powerful comments from Chuck Gomes & Verisign about the proposed Registry Agreement and ICANN's lack of good faith in the negotiation process:
>>> http://forum.icann.org/lists/comments-base-agreement-29apr13/msg00002.html
>> 
>>  It is unimaginable for a party to sign a contract which allows the
>> other party to unilaterally change the terms of the contract. Then again,
>> as Gomes pointed out, ICANN is on top of a pile of money (USD 350m)
>> and can afford to wait the applicants out.
>> 
>> 
> 
>