October 10, 2006

Should a registry block a domain name? (about the Spamhaus case)

Recent events involved ICANN and EURid (the registry for .eu). ICANN is asked to block a domain name. EURid decided to block 74,000 domain names allegedly registered in bad faith, but a Brussels court ruled that it must "release" these names (for the moment). The French NIC has several times blocked thousands of .fr domain names registered by a same person, who violated the registration rules.

"In a proposed court order dated Friday, Judge Charles Kocoras of the U.S. District Court for the Northern District of Illinois calls on the organizations responsible for registering the Spamhaus.org Internet address to suspend the organization’s Internet service. Both the Internet Corporation for Assigned Names and Numbers (ICANN) and Tucows, the Spamhaus.org registrar, are named in the order", the CIO blog writes.
What happened? The firm E360INSIGHT launched a lawsuit against the Spamhaus Project Ltd, and won. The defendant has failed to comply with this court order, and now E360INSIGHT seeks a permanent injunction against it. The plaintiff wants the defendant's website to be on hold. It also requires the domain name to be on hold: ICANN and/or its accredited registrar for the domain name "is hereby ordered to suspend or place a client hold on www.Spamhaus.org until such time as they receive a further order from this Court that such suspension or client hold be lifted", reads the proposed order. To Bret Fausett, this will not go anywhere. And John Berryhill writes that the plaintiff's proposed order is deficient.

This Spamhaus case might not be the only one in which ICANN is a target. The webmaster of a French porn website was recently hijacked its domain name explicite.com. On his blog (caution: absolutely NSFW!), he explains that his lawyers have asked the ICANN to give back the name to the legitimate owner. I do not know whether this is actually what the attorneys are requiring, or if the name owner' summary correctly reflects what is happening, but if now people target ICANN, it will become very interesting. [Correction: I checked the list of the pending cases before the National Arbitration Forum; Case 788274 is over explicite.com]

In Europe, pursuant to Article 2 of EC Regulation 874/2004, a .eu domain name "shall be allocated for use" to the person who registers it. This can be interpreted like this: The registry is the owner of all domain names, and gives it agreement to third parties to use it. In France, under the registration rules article 8, the person who registers a name also agrees only to "use" it.

Where EURid and AFNIC took measures when confronted to massive fraudulent registrations, ICANN has always been neutral since then. Now let's assume that a court rules that ICANN must put a domain on hold. Will it do it? And how would it do it? If it blocked a domain name, it couldn't it mean that ICANN is actually the (at least technical) owner of this domain name... and so of all domain names?

[UPDATE, Oct. 11]: In a press release, ICANN writes it "cannot comply with any order requiring it to suspend or place a client hold on Spamhaus.org or any specific domain name because ICANN does not have either the ability or the authority to do so. Only the Internet registrar with whom the registrant has a contractual relationship - and in certain instances the Internet registry - can suspend an individual domain name."

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