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

["Milton L Mueller" <mueller@xxxxxxx>]

Adam:

I view your “there is no law” assertion as overstatement. Many ccTLDs do not 
have the same Whois publication requirements as those pertaining to gTLDs. Are 
those ccTLDs wild and lawless places? .AU, .PL, soon .CA?? 

As we discussed in San Juan, there are takedown options for bad actors who are 
clearly breaking the law and require immediate action, and there are subpoenas 
and there can perhaps be new forms of process for acquiring the information. 
All you are really saying is that with OPoC you will have to work harder in 
some cases to get the information. But that, my friend, is precisely what is 
supposed to happen. The information is the registrant’s. It’s not yours. You do 
not have an unconditional right to it.

--MM

 

   _____  

From: owner-gnso-whois-wg@xxxxxxxxx [mailto:owner-gnso-whois-wg@xxxxxxxxx] On 
Behalf Of Adam Scoville
Sent: Friday, July 06, 2007 12:17 PM
To: Milton L Mueller; gnso-whois-wg@xxxxxxxxx
Subject: RE: [gnso-whois-wg] Why OPoC Must have Relationship w/ Registrar/ICANN 
not just Registrant not just Registrant

 

Currently (accuracy issues aside), Whois provides the real contact information 
for the registrant, so one can currently communicate with the registrant, and 
identify the registrant sufficient to bring the right legal action against the 
right person in the right place. (In our shorthand, "there is law.")

 

It's only when we seek someone else to substitute for the registrant's contact 
info that we need to worry in such detail about how adequate the substitute is. 
 If one can't communicate with or locate the registrant, and the substitute 
isn't a reasonable equivalent (because whatever responsibilities it has aren't 
enforceable) then it doesn't matter what law the registrant violates, it's much 
harder to subject him/her to the rule of law (which the public relies on for 
the Internet to be a stable and secure marketplace). 

 

- Adam

 

-----Original Message-----
From: Ross Rader [mailto:ross@xxxxxxxxxx] 
Sent: Friday, July 06, 2007 8:29 AM
To: Scoville, Adam
Cc: gnso-whois-wg@xxxxxxxxx
Subject: Re: [gnso-whois-wg] Why OPoC Must have Relationship w/ Registrar/ICANN 
not just Registrant not just Registrant

 

Then by this reasoning, "there is no law on the internet" now - which is 

an assumption that a) I don't believe is true and therefore b) not a 

reasonable basis for such an onerous policy recommendation.

 

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

 

 

-- 

Regards,

 

Ross Rader

Director, Retail Services

Tucows Inc.

 

http://www.domaindirect.com

t. 416.538.5492


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