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

[Danny Younger <dannyyounger@xxxxxxxxx>]

Adam,

I remain uncomfortable with the REVEAL function and
would much prefer the approach adopted by CIRA wherein
the registrar is contractually obligated to serve as
an agent for the registrant (and thereby facilitates
the service of process):

2.7 Registrar As Agent. The Registrant acknowledges
and agrees that the Registrant?s Registrar is deemed
to be authorized to act as the Registrant?s agent in
connection with Domain Name Registrations.

If service of process may be accomplished by means of
designating the registrar as a defacto agent, do you
believe there would still remain a legitimate need to
REVEAL to parties (other than law enforcement) that
would trump the privacy rights of the registrant?



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

> 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).
> 
> 
=== message truncated ===



       
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