Re: [gnso-rap-dt] Registration abuse definition discussion on at-large list

[Roland Perry <roland@xxxxxxxxxxxxxxxxxxxxxxxx>]

In message <C61F2578.3D0D%marika.konings@xxxxxxxxx>, at 00:52:55 on Thu,
30 Apr 2009, Marika Konings <marika.konings@xxxxxxxxx> writes
>To facilitate the review of the At Large discussion on the definition
>of abuse, for those of you interested, I have copied the relevant email
>threads in the attached document. I think I managed to copy all posts
>linked to this subject, but apologies if I have missed any.

Some comments from me (I can't send them to the original list, but they
may help us here):

        "Any action that deliberately intends to deceive with the intent
        of harming...."

This doesn't cover some sorts of cybersquatting, where there's no intent
to deceive anyone about what's going on, simply to either get some money
from another party or (and I have examples of this) to permanently deny
the domain to someone the squatter has a dispute with.

Also, in UK law there is a presumption of "intent" for many crimes,
specifically including theft; so there's an invisible "with intent" in a
lot of laws. On the other side of the coin, there's also the concept of
"attempts", which even if not successful are still a matter that can be
prosecuted (in a domain name context, maybe by banning the individual
from registering any new domains?)

        "Predicate... There's huge leap between an unloaded rifle in my
        home and armed robbery"

Material steps towards the offence occur when (a) you load the gun (b)
when the loaded gun leaves your house and is "in public" (c) when you
carry it into the liquor store and (d) when you use it as a threat. Real
world law has different penalties for several of these stages.

        "Illegal where ... gambling sites"

A good example of how the USA tries to export its culture (although Las
Vegas seems exempt, which confuses foreigners), including arresting
people operating gambling sites outside the USA if they set foot inside
the USA. Why don't other countries have as much right to export their
cultures to websites hosted/registered in the USA?

        "Fiduciary relationship ... front running"

Does the registrar community want to have the confidence of the public?
If so, then a self-regulatory environment to address issues like this
would seem to be essential.

        "If no crime is being committed the registrant should have the
        right of privacy"

So we need an open and transparent system to bypass that privacy when a
crime *is* committed. (Or when something more mundane goes wrong and
people need to be able to contact the registrant).

        "Illegal spam is not a crime"

Yes it is in Europe. And many people (including London Action Plan,
Council of Europe, ITU etc) are breathing down our necks to make sure it
becomes more widely a crime).

        "Copyright violation is not a crime"

Yes it is, in many jurisdictions (broadly speaking "if the perpetrator
is doing it to make money")

        "inventing a parallel judicial system"

This objection has bedevilled the notice/takedown system in Europe, for
example with regard to copyright material. But the USA's DMCA takes a
compromise approach which has been very successful, and maybe we can use
that as a model for this work.

        "Will the American taxpayer foot the bill for.... domains
        hosted/registered in the USA?"

Part of the cost of doing business and protecting the country's
reputation as a good place to do business. The registrars and hosting
services are also paying taxes into the pot.

        "shoot now, ask questions later"

Can be justified in some circumstances, like a bank robbery in progress.
Or do people think the robbers should be given the benefit of the doubt
that it's just a bunch of students making a youtube video, who forgot to
ask the bank's permission in advance. (They always reckoned on paying
for the gunshot holes in the windows, when they were done).
-- 
Roland Perry