We have posted our support of the WHOIS Policy Review Team Report with two important comments. First, on page 79 of the report it is confirmed that the RAA is unenforceable on WHOIS inaccuracy (we wrote about this while at the last ICANN meeting) because the language of RAA 3.7.8 has no enforcement provision. It is now time for ICANN to confirm this problem officially. ICANN, governments, and private researchers have poured resources into addressing the inaccuracy problem but the issue is ultimately unfixable under the existing contract. This issue cannot be understated; 3.7.8 is the crossroads of public participation. At the moment enforceability is completely at the discretion of the sponsoring Registrar, outside of ICANN even. The failure of 3.7.8 precludes the goal of ensuring accountability, transparency and the interests of global Internet users so cherished in the Affirmation of Commitments as it robs the community of meaningful grievance process.
However, the real problem with the contract is even more insidious. One only needs to view the ICANN Compliance "workflow" to see a kind of Sisyphean pattern. There is no "enforcement" end to the loop; the only terminating points in the "ICANN Compliance Program for Registries and Registrars” are dismissal or closure of the complaint. Issuing of breach notices is not part of the process and contracted parties are only mentioned in passing. The process, as it is, only provides a potentially endless cycle of a complainant submitting "additional information." If this flowchart is a true representation of the duties of Compliance, it exists only to shuffle paper.
We end with two major problems. First the contract is unenforceable on WHOIS accuracy which is the foundation of trust between ICANN and the Internet user. Second, there is apparently no capacity within the organization to enforce the other portions of the contract: contractual and organizational failure. We will be publishing nine case studies which demonstrate the systemic breakdown of Internet enforcement next week. RAA 378 is the crossroads of public participation: the ability of actual Internet consumers to bring grievances to the operators of the Domain Name System. Is this an Internet we all participate in or an Internet which is imposed on us? As long as 378 is a phantom we are living with an imposed Internet.
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