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TLD Registration Enforcement: A Call for Automation - Part II

Benjamin Edelman

Last month, I wrote to describe the state of registration restrictions in .BIZ, .US, and .NAME. I noted trends among nonconforming registrations in these TLDs, and I suggested that certain automated enforcement systems might serve to improve compliance. But an important larger question remained unanswered: Why care about registration restrictions in the first place? Much as registries might like to ignore the restrictions, I submit that the Internet community nonetheless ought to hold them to their contracts.

One rationale for enforcing registration restrictions focuses on the community consensus arguably embodied in the restrictions. New TLDs resulted from a lengthy process in which constituencies reviewed the proposals, the interested public submitted written comments, and the community gathered for a public forum. Some continue to dispute the legitimacy of the procedure and the merits of its results. For a registry to impose unilateral changes to the resulting specifications might therefore be taken to undermine ICANN's entire process of policy development.

Furthermore, ignoring consensus results reaches beyond procedure to substance. Community discussions produced registry policies entailing a bundle of compromises that, taken as a whole, generally satisfied the diverse interests involved. But changing the rules risks upsetting that delicate balance. For example, although Neulevel may consider unimportant the prohibition on offers of sale of .BIZ names, this provision was of significant interest to the Intellectual Property Constituency, for this rule (if enforced) would much reduce certain high-volume registrations considered costly and undesirable by IPC members. But the IPC and major commercial registrants are not the only parties who suffer when enforcement is lax; end users also have an interest in requiring compliance. After all, if a non-American impermissibly registers a desired .US name thanks to Neustar's lack of nexus enforcement, a legitimate American registrant cannot cheaply register that name. To most would-be .US registrants, it's little consolation to learn that dispute procedure offers a possible recovery of the disputed name — with a delay of several months and a cost of thousands of dollars paid to lawyers and arbitrators. Instead, registrants would prefer that Neustar take further efforts to prevent non-Americans from impermissibly registering .US names in the first place.

Letting a registry operator ignore its promised registration restrictions also risks unfairness to other registry applicants. Other prospective registry operators may have, to their detriment, forthrightly proposed precisely the unpopular policies the selected registries now implement — less enforcement of IP rights or other restrictions, or increased fees to fund such enforcement activities. But it would be an odd allocation procedure that grants TLD registry contracts to those applicants with the most optimistic plans for service — then lets them change such plans to suit their subsequent convenience.

Lurking in these examples is a concern that a registry's business interest — in selling more domains — may dominate its contractual obligation to enforce the rules on the books. No business wants to turn away interested customers, but enforcement of registration restrictions necessarily entails refusing those transactions that break the rules. By conveniently disregarding registration restrictions, registries well serve the interests of their owners and shareholders — cutting enforcement costs and selling additional units beyond expectations. Such self-serving behavior should be viewed with suspicion and with a clear understanding of the indirect costs imposed on consumers who follow the rules.

High school civics class offers two further reasons to seek enforcement of rules on the books. For one, if violations are allowed to mount in the background, there's cause to fear arbitrary enforcement in the future. It would be an unhappy world in which most registrants stood in violation of one rule or another — and risked losing their domains on the whim of a registry, arbitrator, or well-heeled challenger. In addition, when numerous background registration restrictions are ignored by many registrants, there comes a danger — to new or inexperienced registrants in particular — of confusion as to which rules are to be taken seriously (the UDRP, for example) and which may typically be ignored without concern. It's preferable, civics class suggests, to strike the unimportant rules rather than preserve rules that are consistently flouted.

Counterintuitively, increased enforcement need not entail stricter limits on behavior. Instead, enforcement of the rules might be combined with a careful reconsideration of which rules ought to continue in effect. Such changes are not unprecedented: Later this year, the Netherlands' .NL will remove its longstanding restrictions on geographic location of its registrants. The Netherlands' change tacitly admits the ineffectiveness of country-based targeting; any registrant who wants a .NL domain can already get one with minimal risk of detection or punishment, notwithstanding the official rules requiring a Dutch affiliation. The change also admits the rule's relative lack of importance — that the distinguishing characteristics of .NL result not from its formal prohibitions but rather from trends in use of its space. Neulevel's .US could follow this change with equally minimal ill effects but with a laudable reduction in dead-letter law and, most importantly, with an end to perceptions and allegations that some foreign registrants have taken advantage of the system.

Accordingly, a portion of changes to TLD registration restrictions might sensibly follow .NL, phasing out restrictions that cannot be effectively enforced and that matter little to a TLD's true purpose. But for registration restrictions important to a TLD's focus or necessary in gaining widespread support for the TLD's creation, enforcement is not only appropriate but, I suggest, obligatory. With this in mind, Neulevel's .BIZ ought to develop new programs to ferret out domains offering themselves for sale in violation of registry policies. Other chartered TLDs must also develop procedures — presumably automated systems, to keep costs manageable — to enforce their respective restrictions. The necessary code isn't hard, but its implication is significant: That when the Internet community develops a procedure for addressing a difficult problem, the businesses charged with implementing the procedure must in fact do so, even when contrary to their direct financial interests.

By Benjamin Edelman, Assistant Professor, Harvard Business School

Related topics: DNS, ICANN, Law, Registry Services, Top-Level Domains, UDRP


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