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

[Joe St Sauver <joe@xxxxxxxxxxxxxxxxxx>]

Wendy mentioned:

#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.

Because of the difficulties I've previously mentioned when it comes
to reaching some registrants, I can't agree that there must be an
opportunity for registrants to respond before action is taken in
completely unambiguous cases. For example, if you were to give
those registering phishing domains a week to respond to a pending
take down, well, that would suit the phishing d00dz just great, 
because after a week they'll have moved on to a new domain, and
the process will iterate.

On the other hand, I do agree with you that they should have a 
"right of appeal" in cases of wrongful termination.

#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. 

Would you concede, however, that they do have a duty to act when notified
of criminal activity enabled by their facilities or services?

#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.

I don't believe that any jurisdiction has indicated an interest or 
willingness to grant ICANN sworn law enforcement status. :-)

On the other hand, voluntary self-policing is a well established 
Internet tradition, and in fact, for a long time the de facto law
of the Internet was a self-policing "good neighbor" policy: "I'll 
take care of any abuse coming from my systems or networks; you 
take care of any abuse coming your systems or networks." and by
doing so, the Internet was a nice place to work and play.

That began to break down when some providers attempted to act as
if they were common carriers (even when they had no such status),
refusing to do anything beyond what they were required by law (or
the constraints of the marketplace) to do.

Regards,

Joe

Disclaimer: all opinions strictly my own