ICANN ENFORCEMENT PUT TO THE TEST

January 12, 2001

FEATURES AND COMMENTARY

Max Smetannikov and Juliana Gruenwald have reported for Interactive Week: The Internet Corporation for Assigned Names and Numbers will soon face its first enforcement test as a spat between Verio and Register.com gets increasingly nasty. Verio, a Web hosting and Internet access company, has called on the domain name systems management body to terminate its accreditation of Register.com, a large domain name registrar.

At issue is under what conditions companies such as Verio can access the database known as “Whois.” Whois contains contact information for those who register Internet domains. As part of their accreditation agreements with ICANN, Register.com and other registrars must provide access to Whois data for most purposes except spam.

Verio (Nasdaq: VRIO) has been using information from Register.com’s Whois database to try to market to that company’s domain-name holders.

Courtroom battle Register.com filed a lawsuit in August 2000 against Verio, claiming it was violating the terms of use for Register.com’s data. The company claimed, among other things, that Verio misrepresented itself as having ties to Register.com when soliciting Register.com’s customers. A U.S. District Court judge early last month agreed and issued an order barring Verio from accessing Register.com’s Whois data for marketing purposes.

Register.com spokeswoman Shonna Keogan said Verio’s actions were “above and beyond” acceptable use of the data.

Verio said that it will appeal the order and also asked ICANN late last month to terminate Register.com’s accreditation. Verio claimed Register.com violated its accreditation agreement with ICANN in the onerous conditions it places on access to Whois data, such as reportedly requiring companies to post a performance bond.

“The ICANN accreditation agreement lays out very clear rules, and Register.com is trying to change those rules in the middle of the game,” said Verio attorney Michael Jacobs.

Testing time A. Michael Froomkin, a law professor at the University of Miami, said that if Register.com did violate its accreditation agreement and ICANN does nothing, “is there any incentive for anyone to follow the rules? It’s a real test (for) ICANN.”

In a memorandum requested by the court, ICANN’s general counsel Louis Touton said that Verio may have improperly accessed Whois data. But he also indicated that it appeared that Register.com may have breached its agreement with ICANN.

Still, it is unclear whether ICANN would go so far as to remove Register.com’s accreditation. ICANN President Michael Roberts said that in the past ICANN has worked with registrars that have been the target of complaints to correct their behavior and has yet to remove a registrar’s accreditation. But he said the organization is awaiting a formal response from Register.com before making a decision on Verio’s request.

Behind the fight Third-party observers in this case, such as domain wholesaler Tucows, believe that whichever company wins, open access to the Whois database should remain intact.

“I feel very strongly that any registrar should continue to keep open the data that has been historically publicly available,” said Ross Rader, the architect of the domain business at Tucows.

While Rader described Register.com’s performance bond requirement as “onerous” albeit legal, he did insist that rhetoric involving “the public” in this case on both sides masks the fight over commercial interests, and indicated that Tucows hopes ICANN would perceive it as such.

“The question is: ‘Is Verio going to make the extra money by marketing to anybody it chooses to, or will Register.com make that extra money by marketing to its customers?’ So you could drape it into larger issues of privacy or freedoms or rights, but I just don’t buy it for a second,” Rader said.

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