RE: [council] Issues Report re Abuse Policies -- request for clarification from Counsel

[Liz Gasster <liz.gasster@xxxxxxxxx>]

Mike and all,



Thank you for your inquiry.  The sentences you asked about in the registration 
abuse issues report should be read in the context of the preceding sentences in 
that paragraph, which read as follows:



"Note, section 4.2.3 of the Registrar Accreditation Agreement between ICANN and 
accredited registrars provides for the establishment of new and revised 
consensus policies concerning the registration of domain names, including abuse 
in the registration of names, but policies involving the use of a domain name 
(unrelated to its registration) are outside the scope of policies that ICANN 
could enforce on registries and/or registrars."



For your reference, RAA section 4.2.3 provides that ICANN may obligate 
registrars to implement new policies concerning the "resolution of disputes 
concerning the registration of Registered Names (as opposed to the use of such 
domain names), including where the policies take into account use of the domain 
names ..."



<http://www.icann.org/en/registrars/ra-agreement-17may01.htm#4.2.3>


In the case of fast flux we said that some aspects of fast flux hosting are 
within scope because fast flux involves the rapid update of nameserver 
registration records in gTLDs.  Rapid update of nameserver registration records 
specifically involves the registration of names, which can be distinguished 
from a case where a name, once registered, resolves to a site that contains 
infringing or otherwise abusive content.  While ICANN could change policy with 
regard to updates of nameserver registration records, ICANN might not be able 
to impose any new obligations on registrars concerning pure content/use 
disputes.

Please let me know if you have any further questions.

Thanks, Liz

From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Mike Rodenbaugh
Sent: Wednesday, November 05, 2008 6:51 AM
To: icann@xxxxxxxxxxxxxx; 'GNSO Council'
Subject: RE: [council] Issues Report re Abuse Policies -- request for 
clarification from Counsel

Sorry, tired today, re-sending to clarify that this is a request for 
clarification from ICANN Counsel, not the GNSO Council.  Thanks.

________________________________
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Mike Rodenbaugh
Sent: Wednesday, November 05, 2008 6:36 AM
To: 'GNSO Council'
Subject: [council] Issues Report re Abuse Policies -- request for clarification 
from Council

Hi,

I refer to Sec. 7.1 of the Report, which ends with these sentences:

The use of domain names may be taken into account when establishing or changing 
registration policies. Thus, potential changes to existing contractual 
provisions related to abuse in the registration of names would be within scope 
of GNSO policy making. Consideration of new policies related to the use of a 
domain name unrelated to its registration would not be within scope.

Could ICANN Counsel please clarify this language?  Specifically, what could be 
"use of a domain name unrelated to its registration"?  If this means "any use 
of a domain name after it is registered", then how is that opinion consistent 
with prior enactment of the UDRP, and Counsel's opinion in the Issues Report re 
Fast Flux Hosting (Mar. 31, 2008, p. 14):

General Counsel's opinion is that some aspects relating to the subject of fast 
flux hosting are within scope of the ICANN policy process and within the scope 
of the GNSO. As fast flux
hosting activities concern gTLDs, the issue is within the scope of the GNSO to 
address.

This clarification and/or further analysis might be very helpful for the 
Council in considering the latest Issues Report in the coming weeks, before our 
next meeting.

Thanks,
Mike R.