[NA-Discuss] Pre-registration statement and ALAC - update

[ebw at abenaki.wabanaki.net]

John,

I think there are two issues to consider. Evan relates that someone, elected
or appointed to the coordination of the regional organizations, has observed
that "pre-registration" is not consumer fraud, somewhere. It may be useful to
know where that statement is true, if it is true anywhere.

Then there is the relationship of the activity and the contractual obligation
of registrars to ICANN (and visa versa).

If the first issue exhausts "public interest", then whether the conduct is,
or is not, specifically barred by contract, is irrelevant.

The Registry Stakeholder Group made just this claim earlier this year when
the Intellectual Property SG sought to make registries liable, under the
registry agreement (modified, obviously), for "willful blindness" to systematic
misconduct by accredited (with ICANN, and with the registry) registrars.

The RySG response was that a "willful blindness" standard for liability
created liability not in national law, and therefore should be rejected
by ICANN as a proposed modification to current and future registry agreements.

I suggest that the public interest is not already completely reflected in
national law, and that ICANN policy, independent of the public interest,
may contain limitations on conduct greater than those that exist in national
law. If both of those suggestions are in error, then there is no issue.

How important this, or any issue is, is a matter of perspective. Having
operated both registries and registrars, I'm sympathetic with applicants
for registry agreements attempting to communicate a "future registration
and use" message, and concerned that third-parties will interfere with
those attempts to communicate, whether for material gain as disinterested
registrars, or for relative harm as affiliates of competing existing
registries or applicants. I'm also sympathetic with registrars concerned
that competitor "vapor suffix" marketing may generally discredit all or
most registrars, or become a successful means of acquiring market share,
displacing other value-to-registrant propositions. As a registrant, I know
that promises now are worthless, but as a policy maker, which is what we
all are, I think that some thousands, some hundreds of thousands, or more,
of non-sophisticated persons, out of the existing 100 million registrants,
or the 1,000 million resolution users, have insufficient information to
distinguish between fact and fantesy. Therefore I'd like to qualify, to
restrict to the likely, representations made, either about the public
routing and naming infrastructure, or with the impremature of ICANN's logo
and branding, or at the very least, the North American Regional At Large
Organization's tacit endorsement.

Eric