RE: [gnso-rap-dt] question for Mike Rodenbaugh regarding amendment language

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

In fact, ICANN has imposed and enforced the UDRP for more than ten years, in
an effort to deal with cybersquatting.  Moreover, ICANN contracting parties
have always had the ability to deal with misuse of any kind, via their
contracts with registrants and with each other -- with the possible,
seemingly inexplicable exception of the .com/.net Registry Agreements.  So
yes, ICANN could impose more specific anti-abuse rules if it chooses, there
is nothing in the contracts or in law that would prevent that.  

 

Indeed the contractual regime has been in place for many years, empowering
contracting parties to take action to address misuse.  Most have taken that
opportunity and have robust systems and processes in place to deal with
misuse.  The problem has been the inconsistent (sometimes willfully abusive)
manner in which some contracting parties have chosen to deal with such
problems (or not).  Best practices should be reviewed, with an eye towards
mandating some of those practices for everybody, to create a more level
playing field for the contracting parties (whether they want it or not) and
more importantly to make it easier for third parties and law enforcement to
get action from contracting parties to address abuse of third party rights.

 

Mike Rodenbaugh

RODENBAUGH LAW

tel/fax:  +1 (415) 738-8087

http://rodenbaugh.com <http://rodenbaugh.com/> 

 

From: Greg Aaron [mailto:gaaron@xxxxxxxxxxxx] 
Sent: Monday, February 08, 2010 1:11 PM
To: 'Frederick Felman'; 'Mike Rodenbaugh'; 'RAP-WG'
Subject: RE: [gnso-rap-dt] question for Mike Rodenbaugh regarding amendment
language

 

Dear Mike:

 

So you're saying that if a registrant misuses a domain name (unrelated to
registration-related processes such as how the domain is created, updated,
transferred, etc.), ICANN can regulate how that is dealt with?  

 

All best,

--Greg

 

 

 

  _____  

From: Frederick Felman [mailto:ffelman@xxxxxxxxxxxxxxx] 
Sent: Monday, February 08, 2010 3:48 PM
To: Mike Rodenbaugh; RAP-WG
Subject: Re: [gnso-rap-dt] question for Mike Rodenbaugh regarding amendment
language

 

I agree with Mike.


On 2/8/10 12:44 PM, "Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx> wrote:

That is not precisely what I am saying.  
 
A domain name registration lasts from the time it is registered until the
time it is no longer registered.  If it is abused during that time, then it
is within ICANN and its contracting parties' remit to address, as is made
very clear in all of the relevant contracts (except Verisign's Registry
Agreements for .com/.net) and otherwise by law and industry practice.  The
problem is the inconsistency with which some contracting parties respond (or
fail to respond) to complaints of abuse.  Minimum/mandatory standards for
handling those complaints should be adopted.
 
I do not believe this is an "Alternate View" but one that has been supported
by most of the WG all along.
 

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1 (415) 738-8087
http://rodenbaugh.com <http://rodenbaugh.com/> 
 

From: Greg Aaron [mailto:gaaron@xxxxxxxxxxxx] 
Sent: Monday, February 08, 2010 12:35 PM
To: icann@xxxxxxxxxxxxxx; gnso-rap-dt@xxxxxxxxx
Subject: RE: [gnso-rap-dt] question for Mike Rodenbaugh regarding amendment
language 

OK. Would you like to be listed as having an alternate view, that "It is
within ICANN's remit to regulate uses of domain names unrelated to
registration abuses"?
 
All best,
--Greg

  _____  

From: Mike Rodenbaugh [mailto:icann@xxxxxxxxxxxxxx] 
Sent: Monday, February 08, 2010 3:09 PM
To: gnso-rap-dt@xxxxxxxxx
Subject: FW: [gnso-rap-dt] question for Mike Rodenbaugh regarding amendment
language 

Hi Greg,
 
Happy to try to clarify. nothing new here.  

I continue to disagree that "mandatory practices to deal with use of domain
names (unrelated to registration process abuses) seem outside of ICANN's
scope."  I know that is gospel for the contracting parties, and ICANN Staff
are always too happy to repeat it, but it ignores the UDRP and additional,
plain language in almost all of the Registry Agreements (except Verisign's).
It also ignores reality, as it is not generally possible to discern intent
to abuse at the time of registration -- more often that abusive intent is
only manifest upon occurrence of abuse. 
 
Furthermore, in reality, contracting parties can be held contributorily
liable for abuse of their systems, even to the point that they literally
could be sued out of existence and/or shutdown by a governmental authority,
which likely would cause huge problems for ICANN and for affected
registrants.  We all would like to avoid that possibility, so finding some
minimum anti-abuse standards, mandatorily applicable to all contract
parties, continues to make imminent sense to me.  Best practices would be a
step in the right direction, but might not be worth the paper on which they
are printed, not to mention all the time and effort that will go into
devising them.  It would be better to use that effort to devise some
mandatory/minimum rules that can be enforced by ICANN Staff.


Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1 (415) 738-8087
http://rodenbaugh.com <http://rodenbaugh.com/> 
 

From: owner-gnso-rap-dt@xxxxxxxxx [mailto:owner-gnso-rap-dt@xxxxxxxxx] On
Behalf Of Greg Aaron
Sent: Monday, February 08, 2010 11:10 AM
To: mike@xxxxxxxxxxxxxx
Cc: gnso-rap-dt@xxxxxxxxx
Subject: [gnso-rap-dt] question for Mike Rodenbaugh regarding amendment
language 

Hi, Mike.  The WG went through the final recommendations today, and I have a
question regarding your response to #30 (creation of best practices to
address illicit uses of domain names).
 
Your friendly amendment was: "The effort should also consider mandatory
minimum practices applicable to contracting parties, in addition to best
practices."  
 
The RAPWG did find an instance where there is an inherent relationship
between registration abuses and malicious uses of domains: WHOIS
accessibility (or lack of accessibility).  The group therefore agreed to
make two recommendations about that topic.  WHOIS accessibility is a
specific topic where the WG recommends that the GNSO look into practices
applicable to contracting parties.
 
Otherwise, your amendment seems incompatible with the Recommendation.  The
group has arrived at the best practice approach because mandatory practices
to deal with use of domain names (unrelated to registration process abuses)
seem outside of ICANN's scope.   
 
Can you offer clarification on your comments?
 
All best,
--Greg
 

**********************************
Greg Aaron
Director, Key Account Management and Domain Security
Afilias
vox: +1.215.706.5700
fax: 1.215.706.5701
gaaron@xxxxxxxxxxxx 
**********************************
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