Re: [ga] More on Sitefinder suspension

[Dan Steinberg <synthesis@xxxxxxxxxxxx>]

sigh....
ummmmmmmmm. No.
that language permits the board to enact a policy. They can then turn 
around and serve notice on Verisign to act. And Verisign can object and 
force the matter to go to court whenre ICANN would have to go and 
demonstrate that it is:

        "necessary to maintain the operational stability of Registry Services, 
the DNS or the Internet, and that the proposed specification or policy is as 
narrowly tailored
as feasible to achieve those objectives."

* proving that the operational stability of the registry services were 
jeaopordized is not going to happen
* proving that the operational stability of the DNS is threatened is not going 
to happen either. We may not like what we see but face it, the domains that are 
supposed to be working....are still working!!!! You face a monumental task 
convincing a judge that operational stability of the DNS is compromised when 
the opposing counsel  can bring a notebook into the court and challenge you to 
find domains that should be working (and arent) because of sitefinder.  This is 
of course providing the judge has not fallen asleep listening to your 
explanation of how DNS works and how its supposed to work.  Remember...you have 
to prove all this and opposing counsel can (and probably) will question your 
arguemnts.
* proving the operational stability of the internet is compromised...see above. 
 we are dealing with fine technical arguments about how we 'feel' the internet 
should work. But it is the absence of several standards that got us here in the 
first place.  How can you prove something so general? Its like proving that 
someone is in a good or bad marriage. what standards apply? how do you even 
prove that those standards are applicable in the first place?

Nothing in courts is a slam-dunk but this one...seems from this vantage 
point...to be a long-drawn out action ending in a loss.


George Kirikos wrote:

> Hello,
>
> --- Dan Steinberg <synthesis@xxxxxxxxxxxx> wrote:
>  
>
> > And ICANN can not force Verisign to susspend their service.
> >
> > Worse, the sad fact is...anything  ICANN might try do to stop
> > Verisign 
> > would cause ICANN itself to quickly face legal action.
> >    
>
> That's not correct. I refer you to:
>
> http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-25may01.htm
>
> Paragraph I.1.C.
>
> "C. A specification or policy established by the ICANN Board of
> Directors on a temporary basis, without a prior recommendation by the
> council of an ICANN Supporting Organization, shall also be considered
> to be a Consensus Policy if adopted by the ICANN Board of Directors by
> a vote of at least two-thirds of its members, so long as the Board
> reasonably determines that immediate temporary establishment of a
> specification or policy on the subject is necessary to maintain the
> operational stability of Registry Services, the DNS or the Internet,
> and that the proposed specification or policy is as narrowly tailored
> as feasible to achieve those objectives. In establishing any
> specification or policy under this provision, the ICANN Board of
> Directors shall state the period of time for which the specification or
> policy is temporarily adopted and shall immediately refer the matter to
> the appropriate Supporting Organization for its evaluation and review
> with a detailed explanation of its reasons for adopting the temporary
> specification or policy and why the Board believes the specification or
> policy should receive the consensus support of Internet stakeholders.
> If the period of time for which the specification or policy is adopted
> exceeds 90 days, the Board shall reaffirm its temporary adoption every
> 90 days for a total period not to exceed one year, in order to maintain
> such policy in effect until such time as it meets the standard set
> forth in the first paragraph of Definition 1 above."
>
> That's *all* the language the Board needs, no more, or no less, to
> force NXDOMAIN as a consensus standard on Verisign registry, and force
> Verisign's hands.
>
> They should have no problems getting the 2/3s votes in the GNSO and/or
> at the Board level. There are probably other sections of their
> contracts that can be used too.
>
> Sincerely,
>
> George Kirikos
> http://www.kirikos.com/
>
>  

--
Dan Steinberg

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