Re: [ga] Registrars Draft: Transfers

[Jeff Williams <jwkckid1@ix.netcom.com>]

Joanna and all assembly members,

Joanna Lane wrote:

> Hello William,
>
> on 9/22/01 2:45 AM, William X Walsh at william@userfriendly.com wrote:
>
> > Friday, Friday, September 21, 2001, 1:20:49 PM, Joanna Lane wrote:
>
> >>The
> >> bankrupcy clause is onerous on the Registrant. I have yet to receive any
> >> answer from the Regisrar community to my question: how can a Registrar check
> >> whether a foreign national is subject to a pending bankrupcy? If one is
> >> looking for an excuse to deny transfer, this is it, and I thought the whole
> >> point of redoing these Registrar Agreements was to avoid exactly that.
> >
> > They don't have to check, Joanna.  The agreement places no obligation
> > for them to do that.  But, let's say that the court has notified the
> > registrar the company is in bankruptcy, and that the domain name is
> > being considered as one of the assets to pay off the debts of the
> > company.  Transfer of the domain name may make it difficult, or
> > impossible, to recover the domain name, again because of
> > jurisdictional changes.
>
> Of course Registrars must act upon Court Orders, but that is not what this
> clause says. The wording is so vague, in no way does it reflect the
> interpretation you suggest, whereas it does empower the losing Registrar to
> deny the autoNACK for some ill-defined reason that would require
> investigative procedures that are not even available them. That puts a very
> large hole in the autoNACK bucket.

  I agree.  And this clause is either a oversight, or as I suspect worded in such
a way purposefully as to give the Registrar broad choices in which it
could act.  That in and of itself is dangerous, not only to the registrant,
but also to the loosing registrar should a court challenge ensue.  I find that
rather amazing.

>
> >
> > The provision doesn't require the registrar to deny, it provides it as
> > one of a list of valid reasons a registrar can use.  The list is not
> > exhaustive either, presumably any legal dispute regarding a domain
> > name would be under the same kind of sufficient grounds.  A court may
> > hold that the registrar who is informed of the case, and permits a
> > domain transfer to another registrar anyway, acted negligently.  This
> > provides a way for registrars concerned about that to use that as a
> > permissible excuse to deny the transfer.
>
> The way to protect the Losing Registrar is to build into this agreement the
> requirement for the Registrant to take responsibility for disclosing any
> pertinent legal proceedings, failing which the DN may be autoNACKed.

  I disagree here.  The registrant is the customer, as such he/she should be
under no special requirements at the time of registration of a Domain Name,
or the transfer of same, to the loosing registrar or for that matter the winning
one.

> I would
> suggest that both Losing and Gaining Registrar would then be free of
> liability unless it could be proved that they were in receipt of Court Order
> at the time. If the Registrant fails to disclose voluntarily that a DN is in
> dispute or that they are the subject of bankrupcy proceedings, then they
> could be found to be in contempt of court.

  The registrant could only be found in contempt of court if the court or
any of the parties involved submitted a motion that the judge granted
specifying such information be obtained and submitted as evidence...

>
>
> I maintain that it is not the Registrar's job to police the Registrant
> community on behalf of the judicial system and that they are not able to do
> so anyway.

  Again I disagree here as well.  If self regulation it to be successful and
in any way meaningful under ICANN, the registrar must do most of the
policing while at the same time not infringing on the privacy of any
registrant.  Indeed this can become a difficult task, but one if self
regulation is to work must be in part the responsibility of the Registrar.

> If what you say is true, and I have no reason to believe it is
> not, then the present clause is also onerous on the Losing Registrar, in
> that the Losing Registrar may be acting negligently if they do not undertake
> bankrupcy investigations and yet they have no way to comply with that
> requirement.

  Agreed that presently Registrars for the most part are ill equipped to
do bankruptcy investigations.  However with a little effort they certainly
can do so.

>
>
> >
> > We can argue if it is the right thing to do, and I'd probably agree
> > with you.  But this battle is not about repairing these parts of the
> > policy, and if you try and turn this into a complete revamp, it makes
> > accomplishing the immediate goal more difficult, perhaps impossible.
>
> - snip -

Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 118k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1800 x1894 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208


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