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RE: [council] Resolution regarding Verisign Registry Site Finder Service

All,

Thanks Marilyn for your personal resolution and subsequent analysis.  I
believe this is an issue that all sides have to make their own independent
analysis and for that reason, I have no problem with your resolution of
studying the issue for a period of 90 days and then coming out with a final
report.

What I do take issue with in your motion is your request that all activity
stop while this issue is being studied.  What you are requesting from the
Council (or more precisely, that we request from the Board) is effectively
the legal equivalent of ICANN issuing a "temporary injunction" on VeriSign's
business while we are studying the amount of harm.  

>From a very simplistic legal perspective, if this issue were in a court in
the United States (which I understand there may be a case already pending),
such remedial action would only be granted when a Court has proof of
irreparable harm from a particular service (not when such harm needs to be
evaluated).  Such remedies are rarely granted, especially in situations like
this where there is a reasonable dispute by technical experts as to the harm
caused by this service.  

In addition, in the rare instance of an injunction being granted, such an
injunction can have a large financial and business impact on the entity
being enjoined. This is precisely why courts require the party complaining
about the service to post a substantial bond in the event that it is
determined that the injunction should never have been issued in the first
place.  This bond would then be used to compensate the entity for which an
injunction was granted.

Marilyn and Council.  I am not sure that we want to be responsible for doing
this to a business while the issue is being studied.  I understand that
ultimately, this will be an issue for the Board to consider and it will be
them that makes the legal determination and takes the legal risks.  However,
I for leery about suspending an entity from engaging in its business because
we are studying its policy impacts.  

I would request that the ICANN General Counsel be present at any vote or
discussion on this issue so that we can address this legal issue along with
several others that may arise out of the GNSO/ICANN taking such drastic
action.

Jeff





-----Original Message-----
From: Cade,Marilyn S - LGCRP [mailto:mcade@xxxxxxx]
Sent: Friday, September 19, 2003 1:10 AM
To: Council (E-mail); Gnso. Secretariat (E-mail)
Cc: Bruce Tonkin (E-mail); Grant Forsyth (E-mail); Paul Twomey (E-mail);
Steve Crocker (E-mail); Dan Halloran (E-mail); Mark McFadden (E-mail);
Denise Michel (E-mail)
Subject: [council] Resolution regarding Verisign Registry Site Finder
Service



Dear fellow Councilors

As described in an earlier post to Council, I hereby present a resolution to
Council, proposing action by the ICANN board regarding a new registry
service related to typos in domain names: 


The resolution which follows describes the situation and proposes ICANN
board action and further steps by the community.
I urge an affirmative vote at our upcoming Council meeting. Because all are
mentioned in the resolution, I will forward copies to the ASO leadership,
the ALAC, the ccNSO launching Committee, the IAB, the Security and Stability
Advisory Committee on this resolution, and the ICANN President and staff. 
--

"Whereas, the primary and overriding imperative to ICANN's mission is the
stability and reliability of the global Internet. All other responsibilities
must support and respect that overriding responsibility. 

Whereas, ICANN also has other responsibilities which must co-exist with this
primary responsibilty, and which include competition, transparency, bottom
up consensus policy development and informed participation by the broad
community.

Whereas, the global Internet is dependent upon standards and practices that
are undertaken and agreed to by the private sector through collegial and
bottom up, consensus based processes, embodied in RFCs. Innovation in
services at the "edge" of the Internet, which do not interfere with core
technical assumptions of the Internet's operation are to be encouraged;
changes at the core of the Internet's fundamental assumptions cannot be
undertaken lightly, without notice, and cannot be tolerated if they harm
basic resolvability, reliability and stability of the Internet. 

Whereas, infrastructure providers of the global Internet include network
connectivity providers, ISPs of all sizes, web hosting companies, enterprise
operators who operate resolvers and routers, gTLD registries and registrars,
ccTLD registries. These entities share a common and important responsibility
of adherence to a common bond of "do no harm" to the Internet's core
reliability and stability. This responsibilty is a basic imperative which
must underpin even contractual obligations, and is a responsibility of all
infrastructure providers. 

Whereas, the introduction of the new registry level service entitled Site
Finder, introduced by Verisign Registry, has raised significant questions
from ISPs, network operators, spam filtering users, and others about its
negative and harmful impact on applications on the Internet, and on the
infrastructure providers, and on the reliabity and stability of the
Internet.

Whereas, there was no notice, comment, nor consultation with affected
infrastructure entities by Verisign Registry. These affected entities are
experiencing related complaints, demands on their staff time and resources
to deal with problems, and failures in applications software; 

Whereas, failing to address these concerns responsibly and responsively,
creates a concern to governments who may be forced to intervene into such
situations, thus threatening private sector leadership of the Internet, 

Whereas, significant questions of harm to the stability and reliability of
the Internet are raised in a variety of technical forums

Therefore, the gNSO Council:

Resolves: 
The President and ICANN Board should immediately request Verisign to
withdraw this service for a period of 90 days, during which time the
following activities are advised and will be undertaken, on a fast track
process:
1) Request that the Stability and Security Advisory Committee of ICANN, in
conjunction with representation from the gNSO, ccNSO/Launching Committee,
ALAC, ASO,and the IAB create a "committee" to undertake an assessment of the
impact of such service upon the stability and reliability of the Internet.
Liaison participation should be invited from the GAC, and other relevant
entities of ICANN. A report to the ICANN board, and to the participating
entities of ICANN should be prepared for comment and provided by a date
certain, within a 90 day period. The recommendation should be posted for
comment on the ICANN site for the requisite period of time, and a final
report presented to the board within the 90 day period. During this time,
the service should be discontinued. 

2) The community should cooperate, in a positive and productive manner, in
documenting the impact experienced by the service to date, to inform and
educate the working group in their deliberations. Such information should be
made available via an ICANN comment process, however, a staff developed
format should be recommended, so that the input is organized, coherent, and
fact based. 

3) Upon the conclusion of the work of the "committee" and taking into
account the input and advice of the entities identified above in (1), the
ICANN Security and Stability Advisory Committee should provide  written
public advice to the Board, regarding the impact of the said service on the
stability and reliability of the Internet.