RE: [gnso-res-sga] Whois working group -- subgroup A (reponsibilities)

["Scoville, Adam" <ascoville@xxxxxxxxx>]

Hi Milton - 

 

Please forgive the use of bold headings here, which I'm using just to
distinguish different subjects:

 

Liability? Or Agency? Or both? Your post sets out why you object to the
imposition of liability, but I would be curious to know if you think the
same holds to agency. I'm not sure if you're objecting to both concepts.
Myself, I'm not sure whether both liability and agency are necessary, or
agency is sufficient, so I'm curious to know what others think of the
distinction. 

 

Purpose of the OPoC's responsibilities: I think the basic principle in
defining the OPoC's responsibilities is that if one can't directly reach
the registrant, the party one can reach should be the functional and
legal equivalent. 

 

Analogizing to the current system: You're right that this kind of
liability isn't imposed on administrative or technical contacts. But
Whois currently (in theory - accuracy issues aside) enables one to
contact the party that does have that responsibility and liability - the
registered name holder. So you don't need a substitute.

 

As was mentioned on the call, I think Steve D's statement below was
modified to the extent that the liability would attach if the OPoC
doesn't reveal the registered name holder with sufficient immediacy (to
be defined).

 

And, as we discussed on today's call, given that the admin and tech
contacts currently exist only in addition to the registrant, maybe they
aren't the best comparison. The Registrar Accreditation Agreement
provides that whoever is listed in the Whois is considered the
registrant, and if a proxy provider places its own name there, it is
considered the registrant (with the beneficial owner being the
"licensee" under the RAA's terms). This seems quite similar to a
trustee-beneficiary relationship - with the proxy being the trustee and
owner of title to the domain. National law may provide consequences for
the ownership of a domain used for illegal activity.

 

So maybe the closest analog to the OPoC does have liability under the
current system.

 

Cost of an OPoC - As to your point that an OPoC would be expensive,
maybe that's appropriate. By setting up a system that shifts
accountability from wrongdoers, all that does is externalize costs to
others - consumers who are taken in by an unremedied phishing scheme, or
who pay a merchant delivers a product different than advertised, or the
legitimate business that loses out because the consumer was diverted
somewhere else by one of these means. One way of looking at it is that
Steve's statement on liability and agency merely internalizes those
costs that are necessary to preserve the Internet as a safe and stable
place to do business. 

 

Regards,

Adam 

 

 

-----Original Message-----
From: owner-gnso-res-sga@xxxxxxxxx [mailto:owner-gnso-res-sga@xxxxxxxxx]
On Behalf Of Milton Mueller
Sent: Tuesday, May 08, 2007 1:06 PM
To: Steve DelBianco; gnso-res-sga@xxxxxxxxx
Subject: Re: [gnso-res-sga] Whois working group -- subgroup A
(reponsibilities)(reponsibilities)

 

 

To the two Steves:

 

>>> "Steve DelBianco" <sdelbianco@xxxxxxxxxxxxx> 5/8/2007 11:06 AM >>>

>The OPoC should be a legal agent of the registrant, and must
acknowledge in 

>advance that they could be liable for registrant's illegal activities

 

This is a non-starter. As they say in NJ, forgetaboutit. Steve M. knows
this perfectly well, having beein through this on earlier Whois task
forces. 

 

It is a non-starter politically (it will never even remotely approach a
majority of the stakeholder groups, and it won't fly legally and
economically. This kind of legal liability doesn't even apply to the
current administrative and technical contacts. 

 

I seriously doubt, Steve B., whether your alleged small business
constituents want to increase their internet costs by an order of
magnitude of 10-100 by pursuing such policies. Maybe you should check
with them. 

 

We will save a lot of time if we think of proposals that might actually
achieve agreement. We're way beyond the stage at which constituents can
expect to get anywhere by putting forward narrowly conceived wish lists.