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

[Liz Gasster]

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 at gnso.icann.org [mailto:owner-council at gnso.icann.org] On Behalf Of Mike Rodenbaugh
Sent: Wednesday, November 05, 2008 6:51 AM
To: icann at rodenbaugh.com; '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 at gnso.icann.org [mailto:owner-council at gnso.icann.org] 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.

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