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

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

Mike,
 
Please note my responses below.
 
Chuck


________________________________

        From: owner-council@xxxxxxxxxxxxxx
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Mike Rodenbaugh
        Sent: Wednesday, November 19, 2008 7:46 PM
        To: 'GNSO Council'
        Subject: RE: [council] Issues Report re Abuse Policies --
request for clarification from Counsel
        
        

        Chuck,

         

        ICANN seems to have unlimited resources when it comes to newTLD
policy development.
         [Gomes, Chuck]  How do you figure that?  How do you define
ICANN?

           
         It needs to deal with an abusive registration problem that is
large and is going to get exponentially worse in the newTLD environment.

         [Gomes, Chuck]  Even if it is beyond ICANN's mission? 

         

        I disagree with the view that a PDP was premature to address
fast flux exploits. 
          [Gomes, Chuck]  We disagreed when the PDP was initiated and we
still disagree. That's fine.  
        

         We as a Council have no other process in place, and that
problem was and remains severe.
        [Gomes, Chuck] Disagree again.  We could have passed a motion to
form a WG to do research on the problem and/or to develop a more useful
charter.

         

           A broader focus on Abusive Registrations could cover fast
flux exploits, so that WG could wrap up.
        [Gomes, Chuck] And then we would likely have another one that is
unable to develop usable policy.

         

           But it has been highly effective in documenting the scope of
the fast-flux problem, and outlining potential remedial measures. 
        [Gomes, Chuck] Agreed so it would have been reasonable to have
tasked the group to do that instead to develop policy before we were
ready.

         

          How else would that work have happened? 
        [Gomes, Chuck] I think I already answered that.  We can form
groups to do things besides fulfill a PDP.  It is perfectly okay for us
to initiate other steps before starting a PDP and thereby increase the
chances of success in a PDP.

         

          What do you propose with respect to Abusive Registration
Policies?
        [Gomes, Chuck] I suggest we follow the advise in the Issues
report just like I thought we should have done in the case of Fast Flux.
Why ask for issues reports if we are going to ignore the advice and
proceed ahead anyway? 

         

        Thanks,

        Mike

         

        
________________________________


        From: Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx] 
        Sent: Wednesday, November 19, 2008 4:33 PM
        To: icann@xxxxxxxxxxxxxx; GNSO Council
        Subject: RE: [council] Issues Report re Abuse Policies --
request for clarification from Counsel

         

        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.