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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Mike,
 
Please be careful about claiming that the GNSO Council found that
abusive registrations are within scope of policy development.  A vote to
initiate a PDP has an extremely low threshold and there has been no
decision by the Council that domain name abuse is within scope. On
another level, it is not the Council's role to define what is within
scope so your point is somewhat inappropriate even if it was accurate.

In my opinion, initiating a PDP on Domain Name Abuse would have a
similar result as we have seen in the Fast Flux PDP.  I am sure you read
the comments of one BC rep and former chair of that WG.  I personally
think he makes a strong case that we prematurely intiated a PDP for fast
flux.  I believe the Fast Flux PDP WG has done some very good work so I
do not want to minimize that, but I believe we would have been more
effective if we tackled the problem more deliberately instead of rushing
into a PDP.
 
We have limited resources and if we rush into a PDP everytime there is a
problem even though there may not be a clear policy issue that could be
worked, we are going to burn people out and have trouble getting
volunteers in the future.  That won't result in good policy and it will
limit our abiltity to succeed on other policy development efforts.
 
Chuck


________________________________

        From: owner-council@xxxxxxxxxxxxxx
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Mike Rodenbaugh
        Sent: Wednesday, November 19, 2008 6:41 PM
        To: GNSO Council
        Subject: RE: [council] Issues Report re Abuse Policies --
request for clarification from Counsel
        
        

        Thanks Liz.  I appreciate the attempt to clarify, but I am still
not clear about what is in and out of potential scope.  With both the
UDRP (cybersquatting) and fast flux exploits, nobody would care whether
the domain in question was registered, if it were not used in a criminal
and/or infringing (aka abusive) manner.  The ICANN Board (wrt the UDRP)
and ICANN Staff and GNSO Council (wrt fast flux exploits) have found
that abusive registrations are within scope of GNSO policy development,
and there is further support for that in the mission statement.  

         

        I don't understand the distinction that Staff seems to be trying
to make now, nor how it impacts the Council's decision-making on next
steps to address this Issues Report.  If any Councilors or Staff have
ideas, I'd love to hear them.  My thought is we should launch a PDP to
determine whether gTLD registries and registrars should have a
consistent set of minimum standards and processes to deal with abusive
registrations.  Assuming so, what are those standards and processes?
The Afilias funnel request provides one possible way, several other
ideas have been floated in the Fast Flux WG, in ICM's .xxx proposal re
"Rapid Takedown", and elsewhere.

         

        Policy development is imperative to address the current volume
of abusive registrations, and especially with newTLDs coming online next
year, and with the expected growth in use of IDNs.  Private and public
law enforcement entities are already overstressed to deal with the
volume and intensity of abusive registration problems, and the growth of
the domain space will only increase that stress.  Businesses,
individuals and non-profit entities cannot be expected to continue
footing the bill for so-called 'defensive registrations' in effort to
protect their brands, and instead ICANN must develop post-registration
mechanisms to effectively deal with abusive registrations.  A solid set
of minimum standards and processes, required of all accredited
registrars and gTLD registries, would be a good start.

         

        Thanks,

        Mike

         

        
________________________________


        From: owner-council@xxxxxxxxxxxxxx
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Liz Gasster
        Sent: Wednesday, November 19, 2008 2:40 PM
        To: icann@xxxxxxxxxxxxxx; 'GNSO Council'
        Subject: RE: [council] Issues Report re Abuse Policies --
request for clarification from Counsel

         

        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.