Re: From Christian -- Re: [gnso-ff-pdp-may08] Meta: Strawman - Process vs. Policy

[Wendy Seltzer <wendy@xxxxxxxxxxx>]

Mike Rodenbaugh wrote:
> 
> For the record, talk of "due process" is a US Constitutional notion that is
> entirely misplaced when we are talking about private parties contracting
> with one another, whether in the US or elsewhere. 

I disagree.  We may not be talking about Due Process with caps, but I
think we should clearly be asking what procedural safeguards are due any
time we take action that might reduce some parties' rights.  In this
case, we're talking about actions that might deprive domain registrants
of the ability to use the names they've registered. That shouldn't be
done without giving them notice and opportunity to respond, or recourse
if they're wrongly terminated.

I'm not saying, of course, that fraudulent purchasers have rights to
domain names, but that lawful purchasers should have the opportunity to
respond when they're accused of fraudulent or criminal activity.
Otherwise, malicious or mistaken reports can deprive legitimate
registrants of their contractual expectations.

 ICANN exists to manage
> the DNS, that necessarily must include policy to mitigate criminal use of
> the DNS, in order to avoid both harm to end users and potential liability to
> contracting parties.

While private parties in contractual relationships must ensure that they
are not engaging in or actively soliciting criminal activity, they are
under no obligation -- and I would say should be under no obligation --
to monitor the activities of others.  I do not believe that ICANN's
mandate or mission includes becoming a branch of the law enforcements of
the multitude of jurisdictions into which the Internet's DNS resolution
extends.

--Wendy


-- 
Wendy Seltzer -- wendy@xxxxxxxxxxx
phone: +1.914.374.0613
Visiting Professor, American University Washington College of Law
Fellow, Berkman Center for Internet & Society
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/
https://www.torproject.org/