GA summary #14: April 10 – April 15, 2002.

This summary covers the DNSO GA mailing list’s (and related) discussions and news between April 10, 2002, and April 15, 2002.

GA list archives are available online at [www.dnso.org].

Please feel free to forward this summary as you believe to be appropriate.

Deadline: 14 days until E&R-day

The deadline for useful input to the Evolution and Reform Committee expires on April 29, i.e., in 14 days. [www.dnso.org]

Topics

(i) OECD report on whois issues. Danny Younger forwarded an excerpt from an OECD report [www.oecd.org] on WHOIS and cybersquatting experience. The report claims, based on OECD’s own experience with ocde.org [the French abbreviation of the organization’s name], that “the registrars’ interest is to keep the cybersquatters as client for the volume of registration fees they generate and to avoid helping the victim.” In a follow-up message, Dan Steinberg notes that “a determination of ‘cybersquatting’ is really something no one can make in advance.” “Only the courts have the right to act as courts,” Dan writes. Ross Rader added that “the OECD statements make statements concerning the whole based on observations of the parts. As a result, the conclusion doesn’t hold, despite its base in a valid root observation.” [www.dnso.org], [www.dnso.org], [www.dnso.org].

(ii) The UDRP, and court orders. James Love forwarded some information on the CNNews.com case: “The registrar is apparently in Hong Kong. ICANN has recently written the registrar, telling them to turn over the domain to Time-Warner’s CNN subsidiary. There is a complicated legal dispute over whether or not the Virginia court has jurisdiction over Eastcom, and even whether or not the Virginia court has ordered Eastcom to do anything. But CNN’s lawyers wrote the ICANN, who then wrote Eastcom, and say that Eastcom is obligated to comply with the Virginia court order under the terms of its accreditation agreement.” James’ message included links to some of the correspondence. Finally, he asks whether there is “some policy guidance as to when ICANN should jump in and take matters into its own hands to enforce one nation’s court orders in a cross border dispute over jurisdiction?” [www.dnso.org]

I posted a follow-up note stating that “I seem to understand that paragraph 3(b) of the UDRP is believed to be applicable.” Dan Steinberg (who represents the GA on the UDRP task force) followed up to this and reminded participants to be careful what exactly we are talking about. In particular, he notes that paragraph 3(b) of the UDRP governs the actions of the registrar, not ICANN’s. (The paragraph in question says that the registrar will “cancel, transfer or otherwise make changes to domain name registrations under the following circumstances: […] receipt of an order from a court or arbitral tribunal, in each case of competent jurisdiction, requiring such action”)

As a conclusion, Dan writes: “Given that apparently 3b does not oblige ICANN to intervene, we must ask does it mean that ICANN cannot or should not intervene? or does it fall under general discretionary authority?” [www.dnso.org], [www.dnso.org].

Maybe the UDRP task force should cover this question in its work?

(iii) Independent Review. I sent a couple of possible options for independent review mechanisms to the GA list. Joop Teernstra replied that he thinks “it is misguided to now start casting about for watered-down alternatives.” The only idea he likes “is that of an industry Ombudsman, but this office could be separated from ICANN altogether and should not be used for review of board decisions.” Peter Dengate-Thrush followed up to state his agreement. “As a member of the IRAC,” he writes, “I can say this was one of the early successes of ICANN – a policy worked out by an industry led group in transparent bottom up style, passed to the board posted for public comment and approved by the community.” He then gives some details on the implementation process, in which three out of six members of the nomination committee proposed a list of names for an independent review panel, while the other three did not actively support that list. [www.dnso.org], [www.dnso.org], [www.dnso.org].

In related news, another member of the Independent Review Advisory Committee, Ethan Katsh, has sent a reconsideration request to ICANN. He specifically asks for the board resolutions 02.46 and 02.47 to be reconsidered. In these resolutions, the independent review issue is passed on to the Evolution and Reform Committee. Katsh argues that the board based its decision exclusively on implementation problems, which could be solved by, for instance, replacing some of the members of the nomination committee. “The response of the Board to disband the committee, rather than to attempt to get new members or replace non-participating ones, cannot be an action that is consistent with what the MOU requires,” Katsh writes. [www.umass.edu], [www.icannwatch.org], [www.icann.org].

Finally, yet another proposal for an independent review panel can be found in a business constituency draft quoted and criticized by Danny Younger: “a .” [www.dnso.org], [www.dnso.org].

(iv) Evolution / GA. Philip Sheppard posted a personal reflection on the relationship between the NC and GA. In his message, he suggests to get all groups who represent significant stakeholders to form a constituency, and participate in the NC. For individual domain name holders, the at-large structure is used. Finally, all constituencies vote for a DNSO chair “who simultaneously chairs the NC and GA.” Alexander Svensson agreed that “individual gTLD registrants must have a recognized place in gTLD policy development,” but disagrees on using an at large structure for this representation since an at large membership would encompass more than just domain name holders. [www.dnso.org], [www.dnso.org].

Roberto Gaetano followed up to Philip with some doubts, too: “First of all, the GA should also be an open forum, hence not restricted in principle, although one would expect that the core would be built around the participants in the constituencies.” As examples for people who may not be constituency members, but could still wish to participate, he mentions people from the PSO or ASO. “So the GA will include all constituencies, but not limited to.” Also, he notes that “the logic of the representativity in the GA is ‘one individual – one voice’, which is different from the NC/constituencies” – and can lead to results different from what a vote which is counted by constituencies would yield. Roberto also disagrees about using an at large membership as an “eight constituency” because (1) it should include individuals who may just have an interest in non-DNSO ICANN issues, and (2) such a constituency would be unmanageable. Starting from the same assumptions as Philip, Roberto ends up with two options for a solution: “1. dynamically correct the constituency structure with a mechanism to add/delete/modify the number of constituencies when needed (remember the ‘Paris Draft’?) 2. get rid altogether of the constituency structure and replace it with a GA type structure (Karl Auerbach’s solution, identifiable to a certain extent with the BWG draft).” [www.dnso.org].

(v) Unrelated reregistrations. Ben Edelman asked for assistance with “unrelated reregistrations.” The example which prompted his research was a search for a bicycle dealer, which lead him to a “sexually-explicit” site which resides under the domain name no longer used by Bicycle Bill. The links below lead to the discussion on this, which includes a couple of suggestions how to find more examples of the kind of reregistration Ben mentioned; these suggestions included mining old and current versions of TLD zone files, and looking at older SnapNames.com lists of successful SnapBacks. [www.dnso.org], [www.dnso.org], [www.dnso.org], [www.dnso.org], [www.dnso.org].

George Kirikos noted that “from an ICANN policy point of view these matters are related to:” 1. uniform deletions regulation and transfer policies, 2. whois data correctness, 3. better education of the end user community. [www.dnso.org].

If you want to help Ben with his research, please go to [cyber.law.harvard.edu] and submit more examples.