RE: [gnso-whois-wg] Why OPoC Must have Relationship w/ Registrar/ICANN not just Registrant

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

I guess I don't see the kind of conflict you do... or at least don't
think it unique. In the U.S. states (and to my passing knowledge, at
least some other countries), when a person or business registers to do
business in another jurisdiction, they often must appoint an agent for
service of process. That agent has a contract with the subject, of
course, but their whole function is to receive and pass on
communications and notices from third parties. If the agent doesn't do
its job, there are consequences (those professional agent companies are
regulated, as I understand). The one difference is that those
jurisdictions can pass laws that say that providing notice to the agent
is legally equivalent to providing it to the subject. ICANN can't do
that, but it we're making the registrant unreachable, should come as
close as possible, by making sure the OPoC has a real obligation to pass
on the notice. 

 

________________________________

From: Hugh Dierker [mailto:hdierker2204@xxxxxxxxx] 
Sent: Friday, July 06, 2007 8:51 AM
To: Scoville, Adam; gnso-whois-wg@xxxxxxxxx
Subject: Re: [gnso-whois-wg] Why OPoC Must have Relationship w/
Registrar/ICANN not just Registrant

 

No. Making the OPoC a police person is not what WHOIS is about. How can
the OPoC have what amounts to a fiduciary duty with the registrant and
then be contractually bound to serve ICANN? I was first of the mind for
a registration system but then change my mind against it for exactly
this reason.

 

Eric

"Scoville, Adam" <ascoville@xxxxxxxxx> wrote:

        I think some who didn't attend the San Juan meeting have asked
why an agreement with the registrar or ICANN is necessary. 

         

        To summarize, a relationship only between the OPoC and the
registrant is insufficient for the following reason: if the registrant
of the domain is in some way a bad actor, a wronged third party needs
the OPoC to perform its functions in order to communicate with the
registrant, and to be able to identify the registrant sufficient to
bring the right legal action against the right person in the right
place. (If that can't be done, there is no law on the Internet.) 

         

        If the OPoC doesn't perform its functions, under this scenario,
the only party the OPoC is responsible to is the bad actor. Moreover,
the OPoC may complain that the contract the registrant gave her never
required her to perform the responsibilities we set out. So perhaps the
registrant has breached the Registration Agreement by failing to require
the right responsibilities of the OPoC... but all that gives is another
reason the registrant is bad, which is no help in the original goal of
communicating with or bringing legal action against the registrant. 

         

        Two ways of binding the OPoC would be accreditation (i.e. ICANN
verifies the OPoC's credentials and OPoC agrees to perform it's
responsibilities as a condition of accreditation) or acknowledgement
(i.e. when nominated as an OPoC, the OPoC must in some way acknowledge
to the registrar that it is the OPoC and its responsibility to perform
the specified OPoC functions).

         

        Perhaps with acknowledgement there is no indication ahead of
time that the OPoC will do its job (as in accreditation), but at least a
contractual relationship exists (the OPoC must respond to a query, and
acknowledge-agree-that it must perform its set of responsibilities).

         

        - Adam

 

  

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