I have been posting the last few days that it appears to me that in regard to Afilias's
awareness of the possibility of cybersquatting during the Sunrise phase, Afilias
gave an undertaking in its Description of TLD Policies to ICANN and NSI that it would
require registrars to obtain true and accurate registration information from all
domain name registrants and that it, Afilias, would monitor registrar adherence to
this policy which, together with all applicable laws and regulations relating to
trademarks and cybersquatting would be incorporated in Afilias's RLAs. Section
E5.4 states that "If a registrar fails to comply with such laws and regulations,
then Afilias will reject all registration applications from the registrar, and if
such non-compliance persists, than Afilias will terminate the RLA."It appears
that in the light of Afilias subsequently saying that it would not be checking the
bona fides of domain name orders, Afilias's undertaking in the Description of TLD
Policies document did not transfer to its final ICANN-NSI Registry Agreement and
did not enter Afilias's RLAs as it indicated it would.
I would like confirmation
of this, because if these cybersquatting precautions were incorporated in the Registry
Agreement and the Registrars License Agreements - then who was it who gave Afilias
relief from this crucial undertaking - and why is ICANN permitting this breach of
its Agreement with Afilias.
I am aware that ICANN is aware of cybersquatting by
the Afilias company, and I suspect some of its Directors, and doing nothing about
it. In fact it appears that Afilias's RLAs permit registrar domain name registration
in contravention of its ICANN-NSI Registry Agreement.
Afilias will continue to
deny any responsibility for more than 10,000 instances of cybersquatting, but as
I posted tongue-in-cheek a few days ago, if everyone else is innocent - neither ICANN
nor Afilias apparently doing anything constructive, let alone admitting there is
even a problem - than the Landrushers are to blame.
Closer to the truth I think
is that a relationship exists between some in ICANN and the management of Afilias
that has permitted Afilias make public statements which are at variance with its
responsibilities as detailed in its Registry Agreement, without correction or censure
by the regulatory authority. And at some stage the management of Afilias advised
its approved registrars that they need not check the detail of applications as Afilias
was administering the .info roll with ICANN at arms length, and should there be any
attempts at fraud, then the challenge process would deal with it.
However, the
powers that be would not have bargained on the registrar SpyProductions going public
with what had until then been an inhouse understanding - no one was checking - and
there would be a good chance you would get away with it if you attempted to commit
fraud - as an expensive challenge process was only of value if you held a TM for
the disputed name. Unless of course you were a registrar, and it appears that
the culture that had developed within Afilias prompted some directors and accredited
registrars to do their share of cybersquatting.
What I believe to be a reasonable
view is that an applicant intending to commit domain name registration fraud can
not do so without the aid of a registrar and a registry. If a registry or registry
does not have safeguards against fraud/cybersquatting in place, then they are at
risk of accusations of complicity when the inevitable fraud occurs. When instances
of fraud number more than 10,000, I think it is apparent that some registrars and
the registry are complicit.
Afilias's management of the .info extension to date
indicates that ICANN was mistaken is accepting the Afilias bid over others, and ICANN's
unwillingness to involve itself in the timely and efficient purging of fraudulent
Sunrise registration in order to re-establish the integrity of the .info registry
in order that Afilias's responsibiliries to the Landrush applicants can be met, casts
serious doubts on whether the current management of ICANN are fit and proper people
to hold such positions of authority.
One must ask whether a change short of a purging
of the current executive of both Afilias and ICANN will be enough to restore the
credibility of both institutions and start to restore the trust of the Internet community
in new registries and the regulatory authority.