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/