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

["Greg Aaron" <gaaron@xxxxxxxxxxxx>]

Dear Berry:
Thanks for your post -- very thoughtful.  Yes, it's definitely a process.
When our report takes its final shape, there will be discussion at the GNSO
Council about which things will be taken to next steps, and via which
routes.  There are probably a number of permutations possible.
All best,
--Greg



-----Original Message-----
From: Berry Cobb [mailto:berrycobb@xxxxxxxxxxxxxxxxxxx] 
Sent: Tuesday, February 09, 2010 6:22 PM
To: 'RAP-WG'
Subject: RE: [gnso-rap-dt] question for Mike Rodenbaugh regarding amendment
language


RAP,

James & Greg, I appreciate your example. I think instead of trying to
contact ICANN or the Registrar, that a consumer in this case, would seek out
a lawyer to sue eBay for fraudulent and deceptive business practice.  I am
not a lawyer, but I would bet there are other jurisdictional laws broken
other than just fraud to go after them with.  No offense to eBay, as this
was the example already used below and in no way intends to reflect that
this occurs today.

Regardless of the example, your point is well taken, and I doubt we need to
find a better analogy.  This illustrates, just how fuzzy and obscure this
topic of ICANN scope really is.  I think both sides of this issue have been
debated well.  Regardless of one's position and as Martin stated in a
separate email string, I think we can agree this issue has strongly
influenced major portions of our Initial Findings report.  It already
contains; a section devoted to explain the very topic of "Registration vs.
Use", a section resulting in Strong Consensus (12-1) toward Best Practice in
addressing "Malicious Use" although claims of ICANN scope are in question,
and a section regarding Uniformity of Contracts that lost consensus in the
11th hour.  As such, we should be better prepared to defend or denounce the
group's stance about this issue.  I am confident we will see many comments
about this from the community when this public comment period opens.

I am getting the impression that this issue cannot be resolved here (even if
this pre-PDP were a real PDP).  Our paper cites comments from the ICANN
General Council in the Issues Report, and references to the RAA and other
supporting information is made.  However, I question if what we have in the
paper adequately resolves this issue to satisfy the community.  Pardon my
inexperience here, but would it be important for the GNSO Council and
perhaps even the ICANN Board to put this difference to rest before
conclusion of this pre-PDP and other PDPs for that matter.  OR, at the very
least is it possible that we the RAPWG make a recommendation back to the
GNSO council that this be addressed within its own Issues Report and PDP?

As Greg has stated thoroughly, this difference is essential in the ICANN
policy context.  I could not agree more.  However, I am of the belief that
we would do the community a disservice by not bringing closure that it so
rightly deserves.  It is clear by our consensus view of best practice
recommendations regarding "Malicious Use" fundamentally means we ALL
recognize the seriousness of the problems.  In my book, this is a clear
indication that many of the stakeholders favoring the consensus view will
take anything they get at this point to combat the abuses we see today.  Can
one envision a day when we might ever be PROACTIVE?

These comments are on behalf of myself and not a organized view of the
Business Constituency.

Thank you.


Berry A. Cobb
Infinity Portals LLC
866.921.8891


-----Original Message-----
From: owner-gnso-rap-dt@xxxxxxxxx [mailto:owner-gnso-rap-dt@xxxxxxxxx] On
Behalf Of Greg Aaron
Sent: Tuesday, February 09, 2010 11:49
To: 'James M. Bladel'; 'Mike Rodenbaugh'; 'RAP-WG'
Subject: RE: [gnso-rap-dt] question for Mike Rodenbaugh regarding amendment
language


I must echo James's concern:  Mike's characterization of what "most of the
WG has supported all along" has no basis in the record.  

My assumption is that Mike has been speaking as an individual member of the
WG and not as the RAPWG's Council liaison.

All best,
--Greg
      


-----Original Message-----
From: James M. Bladel [mailto:jbladel@xxxxxxxxxxx] 
Sent: Tuesday, February 09, 2010 12:35 AM
To: Mike Rodenbaugh; RAP-WG
Subject: RE: [gnso-rap-dt] question for Mike Rodenbaugh regarding amendment
language


Mike and Team:

So, if I win an online auction for a baseball card; and the seller takes
my money but doesn't ship the item, should I raise this issue with ICANN
or the registrar for eBay.com?   

A little humor (very little), but the point is that this scenario could
fit our current definition of "Abuse" and Mike's view of the
"Registration Lifecycle."  So if my example seems absurd, then please
describe the boundaries and/or limitations of these definitions, and
ICANN's remit, under this view.

And, for the record, I strongly object to Mike's characterization of
what "most of the WG has supported all along." In the (most) generous
case, opinions on this issue have been split similarly to the others.

 
 
 J.



-------- Original Message -------
 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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