The pen is mightier than the word…or should be. When ICANN Chairman Peter Dengate-Thrush, an accomplished attorney, said last year that he wouldn’t let one of his own clients agree to a contract that could be unilaterally changed after it was signed, the Internet community breathed a sigh of relief.
But when the Chairman backed away from that stance earlier this week in Nairobi, it became clear that we should have held our breath a little bit longer.
ICANN’s Draft Applicant Guidebook (DAG) is the bible for companies and organizations seeking to launch a new top-level domain. The latest iteration of the DAG, released last year, included a provision that would allow ICANN to summarily rewrite the terms of its contracts with new domain operators, even after those contracts are signed.
Members of the community roundly criticized the proposal – which turns the fundamental covenant of a contract on its head, and has ramifications that extend far beyond prospective operators of new domains. When Dengate-Thrush signaled his own concern with the provision, many assumed that it was well on its way to being removed, or at the very least replaced with something more reasonable.
This week, however, the Chairman backed away from that position, saying that ICANN would need the flexibility to make changes to already-singed registry contracts. This has the potential to be a serious blow, not just to new registry operators, but also to clarity, contractual compliance and due process throughout ICANN.
Contracts form the backbone of ICANN’s larger compact with the global Internet community. The subject of contracts, and of contract enforcement has been a repeated theme in the larger discussion of accountability and transparency within the organization.
On the eve of a critical review of ICANN’s transparency and accountability, it would send a terrible message if ICANN were to take a giant step away from contractual certainty and fairness.
ICANN is under great pressure to finalize the DAG and launch the new TLD round, but this is an issue that cannot be overlooked. The community has spoken through the bottom-up process, and has said in a clear voice that this contractual provision is unacceptable. Even the most fervent proponents of the new TLD round cannot wish for a contractual obligation that can be changed at ICANN’s whim.
The place to address this is here in Nairobi. ICANN needs to send a clear signal that it understands the community’s concerns, and will work quickly to develop a contractual structure that is fair to all.
With any luck, new registries won’t have to consider Dengate-Thrush’s extremely sound legal advice, and not sign.