[At-Large] [lac-discuss-en] GigaOM article : Louis Vuitton asks for SOPA-like seizure of hundreds of websites

[Derek Smythe]

Karl, I find myself agreeing with much of what you say for a change :)

On 5/14/2012 10:29 PM, Karl Auerbach wrote:
> On 05/14/2012 12:59 PM, Carlton Samuels wrote:
> 
>> Note the recommendation:
>>
>> The RT is in favour of " *a clear, unambiguous and enforceable chain
>> of **contractual
>> agreements with registries, registrars, and registrants to require the
>> **provision
>> and maintenance of accurate WHOIS data*.".
> 
> That is a far cry from a third-party-beneficiary rule.
> 
> The sentence you quote essentially says "The RT is in favour of the 
> status quo".
> 
> What Bill S. was asking for was a third party beneficiary provision that 
> gives designated third party individuals or classes (who might not even 
> be registrants, registrars, or registries - or anybody else associated 
> with ICANN) the power to enforce the contractual terms even if one of 
> the actual parties to the contract doesn't come forward to enforce it 
> itself.

That may be easily possible if the general public outside the spheres
mentioned above are deliberately harmed by the registrant using such
domain abuse. Invariably the perpetrator will also use fake
registration details in these cases. Third parties are implied to a
certain extent in the RAA and domain registration agreements.

What I would really love to know is how any binding contract can exist
if the registrant provides fake whois details to start off with. How
can the Registrar be held blameless by the registrant (and all those
nice provisions) when the registrant is acting in bad faith?  To make
matter worse, what happens if a Registrar is notified of domains
sponsored by them with invalid whois details and the registrant is
deliberately trying to harm third parties, yet the Registrar allows
these domains to continue resolving; these domains might also be using
the Registrar's DNS services as well.

> 
> In general I think that ICANN has done a lousy job in that it has very 
> expressly rejected third party beneficiary rights in anything it does 
> ever since it was formed.  We saw that happen most forcefully in the 
> RegisterFly situation where ICANN failed to enforce contract terms while 
> registrants were being harmed left and right.

I agree. Not only does it harm registrant, but also the other third
parties.

> (I do, however, believe that the whois is a privacy disaster, that the 
> report contains a revisionist history to support its conclusions, that 
> there are plenty of means to go after evil doers even if those means 
> might be less convenient than a rope and a nearby tree, and that there 
> is a lot of post hoc ergo hoc logic going in that those who are accused 
> are stripped of protections merely because they have been accused.)

Yet we will not improve/move from this situation either way until such
a time as more accountability is built into the system that is
actually enforced.

We desperately need privacy, but given the current state of the
registration data contained and policy enforcement, applying privacy
would only hide a massive can of worms, aggravating the issue and harm
done still further.

> 		--karl--
> 
Derek