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    Highlights of the ICANNWatch Archive
    (June 1999 - March 2001)

    Verisign/NSI Why Verisign Isn't Worried
    posted by jon on Wednesday September 24 2003, @01:56PM

    Let's assume that the ICANN board of directors agrees with the Rest of the World that Sitefinder is a bad thing. Does it have the power to make Verisign pull Sitefinder down? I spent a little time with the contracts, and the answer isn't promising. Here's why:

    Step 1. Some folks have pointed out that the COM and NET registry agreements (app. C, element 4) require Verisign's nameserver operations to comply with RFC 1034, 1035, and 2182. You could argue that Verisign is violating one or more of those RFCs, and hence is violating the agreements. But the IAB just threw cold water on that claim. Its recent statement emphasizes that Sitefinder -- though dangerous, highly problematic, and inconsistent with "the operational stability of the applications which depend on the DNS" — nonetheless "did not in any way violate the DNS specifications themselves." So it's real hard to argue that Verisign is violating the registry agreements on that basis.

    Step 2. It's plain that ICANN could enact a consensus policy barring Sitefinder. Some people have pointed to section I.C of the COM agreement (and sec. 4.3.4 of the NET agreement), which empower the ICANN Board to establish a consensus policy on an emergency basis, so long as a 2/3 majority of 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." Once the Board enacts that policy (it would have to decide whether to ding the about-a-dozen ccTLDs that also use wildcards), and gives Verisign a reasonable period of time to comply, then Verisign's refusal to comply would put it in breach of the registry agreement.

    There's a catch or two, though. For one thing, sections I.(A) &(F) of the registry agreement make clear that Verisign has no obligation to comply with an ICANN consensus policy until ICANN has an Independent Review Panel (IRP) in place, and Verisign has either lost its appeal to that panel or declined to take one. It turns out (see Art. IV, sec. 3 of the new ICANN bylaws) that ICANN needs to have contracted with an international arbitration provider to operate the independent review panel. The provider is supposed to have established operating rules and procedures for the IRP, subject to the Board's approval. But to the best of my knowledge, none of this has happened. So even if the Board issued Verisign an order tomorrow directing it to shut Sitefinder down, Verisign would have no actual obligation until a long time from now, when ICANN has all of the IRP machinery in place, and Verisign has lost its case before that body as well.

    Suppose next that ICANN gets past its IRP problem. What if it issues its order and Verisign still declines to comply? ICANN's only immediate remedy would be to file a lawsuit seeking an injunction (and the court would have to decide whether the ICANN policy really was the narrowest possible way to "necessary to maintain the operational stability of . . . the Internet," and who knows what it would say and how long it would take).

    Step 3. But at least, you say, Verisign knows that ICANN can refuse to renew its contracts when they come up for renewal, and it won't want to take that risk. Let's look at that. Section 25 of the COM registry agreement says, in essence, that Verisign has the right to keep the registry unless ICANN reasonably decides, come renewal time, that Verisign "has not provided and will not provide a substantial service to the Internet community" as registry operator; that Verisign is "not qualified" to operate the registry; that Verisign is "in material breach" of the agreement; or that its proposed prices are inconsistent with rules set out elsewhere in the agreement. Two of these criteria are useless and another is irrelevant to this case. It seems plain that ICANN can't refuse to renew Verisign, on the basis of the Sitefinder controversy, unless ICANN actually orders Verisign to shut the service down and Verisign refuses. In that situation, Verisign would be in breach of the agreement. But even then, would it be in "material" breach, so as to lose its right to renewal? The lawyers would have to sort it out . . .

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      Related Links  
    · VeriSign/NSI
    · ICANN
    · (app. C, element 4)
    · recent statement
    · section I.C
    · sections I.(A) &(F)
    · Art. IV, sec. 3
    · Section 25
    · More Verisign/NSI stories
    · Also by jon
    This discussion has been archived. No new comments can be posted.
    Why Verisign Isn't Worried | Log in/Create an Account | Top | 6 comments | Search Discussion
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    Sigh... a little protest perhaps ?
    by thrill on Wednesday September 24 2003, @08:59PM (#12296)
    User #3854 Info
    If it can be made "legal", perhaps some protest is in order?


    I mean, how can it be legal if one organization holds 99.99999999999999999999999999999999999999999999999 999999999999999999999999999999999999997% of all .com-domains (not even mentioning .net) ?
    [ Reply to This | Parent ]
    ICANN should act anyway
    by futureweaver on Wednesday September 24 2003, @11:09PM (#12297)
    User #3860 Info
    Still, ICANN should start these processes now, even if it eventually loses and even if it collapses as a result. Unless ICANN takes a principle-based stand now, regardless of how flimsy the contractual or financial basis, it it will be increasingly ignored. At this point it has two choices : (1) sit on its hands and become (even more) sidelined, (2) act in accordance with its awowed principles and gain some respect.

    Evidence of sidelining abounds. Verisign clearly thinks it can ignore ICANN. The RIRs are already preparing to sideline ICANN [ripe.net]. CENTR secured a ccNSO charter allowing it to ignore ICANN when it doesn't like what it says.
    [ Reply to This | Parent ]

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