I'd say this is an overextension of ICANN's mandate. Who is ICANN to impose legal liability on registrants for uses of their domains (as opposed to for breaches of the contract with the registrar/registry)? --Wendy Beau Brendler wrote:
Regarding the draft advisory on RAA subsection 3.7.7.3 [http://www.icann.org/en/compliance/reports/draft-advisory-raa-3773-14may10-e...], which is on the at-large agenda for discussion in Brussels, specifically the statement:
"the Registered Name Holder shall accept liability for harm caused by the wrongful use of the registered name unless the Registered Name Holder promptly identifies the licensee to a party that has provided the Registered Name Holder with reasonable evidence of actionable harm."
Does this apply to subdomains? For instance, in http://www.walletpop.com/blog/2010/06/02/three-charged-in-xp-antispyware-201...
it's noted that bsa.safetydownload.com was a vector for serious malware downloads that cost consumers around the world more than $100 million. The domain is still up and functioning, though you will probably have to turn off firewalls to access it, which I wouldn't recommend.
What is the chain of liability now and under 3.7.7.3? The registrant, OS Portfolio Holdings, a domainer? The registrar, Bear Trap Domains (which is/was ICANN accredited, but now appears to be taken over by Oversee.net [http://www.oversee.net/] which also now happens to own OS Portfolio? Is this a hijacked subdomain with no trail?
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-- Wendy Seltzer -- wendy@seltzer.org phone: +1.914.374.0613 Fellow, Silicon Flatirons Center at University of Colorado Law School Fellow, Berkman Center for Internet & Society at Harvard University http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/ https://www.torproject.org/