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

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

As the OPoC proposal has evolved in the WG report, I think the conflict
between needing to serve process if there have been violations of law,
and the difficulties with making the OPoC a valid agent for service of
process under all the various national laws has found a compromise in
the Reveal function. I.E. somewhere before the point where process must
be served (or formal notice must be provided, in countries that don't
have quite the same concept), the OPoC or registrar will have Revealed
the registrant's info, so the wronged party can make valid notice /
service under whatever national law applies. 

 

So I wasn't really suggesting that the OPoC must be an agent for service
of process. I just used it as an analogy to address Eric's claim
(forgive the simplification) that OPoC can't possibly perform its
functions because the fact it has contractual obligations to two parties
(registrant and registrar), because I think there are similarities. And
I think the OPoC having the contractual obligation to Reveal at the
appropriate time makes sense mainly because I doubt the registrars would
want that written into the RAA as their responsibility (at least to
start off - unless the OPoC fails to do so).

 

- Adam

 

 

-----Original Message-----
From: Danny Younger
Sent: Friday, July 06, 2007 10:45 AM
To: Scoville, Adam; gnso-whois-wg@xxxxxxxxx
Subject: RE: [gnso-whois-wg] Why OPoC Must have Relationship w/
Registrar/ICANN not just Registrant

 

Adam,

 

I'm trying to understand the implications of your comment.  Are you
suggesting that every natural person worldwide that seeks to protect
their privacy within

the context of a gTLD registration be obligated to retain an agent for
process of service? 

Surely you jest.  

 

 

--- "Scoville, Adam" wrote:

 

From: owner-gnso-whois-wg@xxxxxxxxx
[mailto:owner-gnso-whois-wg@xxxxxxxxx] On Behalf Of Scoville, Adam
Sent: Friday, July 06, 2007 10:18 AM
To: gnso-whois-wg@xxxxxxxxx
Subject: RE: [gnso-whois-wg] Why OPoC Must have Relationship w/
Registrar/ICANN not just Registrant

 

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:] 
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" < > 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