Invitation to Verio
to Submit Response in Connection With Petition for Termination
of Register.com's Registrar Accreditation Agreement
(17 February 2001)
17 February 2001
||Invitation to Submit Additional
Submission Regarding Petition for Termination of Register.com's
||Sat, 17 Feb 2001 19:35:13
||Louis Touton <firstname.lastname@example.org>
||Michael Jacobs <email@example.com>
||"J. Alexander Lawrence"
<ALawrence@mofo.com>,Scott Brown <SBROWN@skadden.com>,
Phil Sbarbaro <firstname.lastname@example.org>
Michael A. Jacobs, Esq.
Morrison & Foerster, LLP
425 Market Street
San Francisco, California 94105-2482
Re: Petition for Termination of Registrar
Accreditation Agreement with Register.com
Dear Mr. Jacobs:
By a letter dated 21 December 2000 you,
on behalf of your client Verio, Inc., [you] formally requested
that ICANN terminate Register.com's accreditation for alleged
breaches of its Registrar Accreditation Agreement with ICANN.
Your letter has been posted on ICANN's web site at <http://www.icann.org/registrars/register.com-verio/petition-21dec00.htm>.
In a letter dated 26 January 2001, Scott D. Brown, Esq., acting
on behalf of his client Register.com, submitted a response opposing
Verio's request. Mr. Brown's letter is posted at <http://www.icann.org/registrars/register.com-verio/response-26jan01.htm>.
On 30 January 2001, ICANN received from
VeriSign Global Registry Services a report of its investigation,
performed at ICANN's request, regarding "the circumstances
under which Verio is obtaining the zone-file data" apparently
used in connection with Project Hen House. VeriSign Global Registry
Services' report is posted at [<http://www.icann.org/registrars/register.com-verio/registry-report-30jan01.htm>].
ICANN invites Verio, if it so desires,
to submit to ICANN a response to the 26
January 2001 Register.com submission and the 30
January 2001 VeriSign Global Registry Services investigation
report. If Verio wishes to submit a response, please send
it to my attention in hard copy and, to the extent available,
in electronic form no later than Thursday, 15 March 2001. Please
note that the material submitted may be publicly posted, so that
Verio should not include information it wishes to keep confidential.
I am suggesting a submission date nearly a month away, since
ICANN's meeting on 9-13 March in Melbourne, Australia means that
review of an earlier-submitted response would likely be delayed
until mid-March in any event. Nonetheless, if you feel that Verio
requires longer than the proposed time to prepare an adequate
and informative submission, please let me know as soon as possible.
If Verio does not intend to submit a response
as invited, please let me know as soon as possible.
In any response, Verio should feel free
to address the issues and raise the matters it wishes to bring
to ICANN's attention. In addition, ICANN would find it particularly
informative if Verio's response discussed specifically the following
1. Please state the circumstances and provide
written documentation of all requests made before 28 September
2000 by or on behalf of Verio to Register.com for a bulk Whois
2. Has Verio obtained bulk Whois licenses
from other ICANN-accredited registrars? If so, please identify
the date of each license and the registrar that granted  the
3. Some in the ICANN community have expressed
concern that ICANN may not be appropriately enforcing the bulk-Whois
requirements of the Registrar Accreditation Agreements. Has Verio
been refused bulk Whois licenses by ICANN-accredited registrars
other than Register.com? If so, please give details of the other
registrar(s) who has(have) refused and, for each such registrar,
describe the circumstances of Verio's request and the refusal.
4. Does Verio believe that the bulk Whois
license form attached as Exhibit 15 to Register.com's 26 January
2001 response meets the requirements of II.F.6
of the Registrar Accreditation Agreement? If not, please
describe the aspects of Exhibit 15 that Verio believes are deficient.
5. Would a bulk Whois license in the form
of Exhibit 15 meet Verio's requirements in connection with Project
Hen House? Does bulk Whois access on a weekly basis in general
meet the Verio's requirements in connection with Project Hen
6. In Section
II.B.2 of its 26 January 2001 response, Register.com states
that "Verio's assertion that register.com's opt-in policy
leads to a scenario whereby customers may 'elect not to be included
in [register.com's] bulk Whois database but still must agree
to receive solicitations from Register.com and its Affiliates'
is a mischaracterization." Please describe in detail the
reasons why Verio believes its characterization is accurate.
In particular, please address whether communications Register.com
sends to its customers from time to time, including customers
excluded from its bulk Whois submissions, constitute "use
[of Personal Data] subject to opt-out for marketing purposes
in its own value-added product or service." See Registrar
Accreditation Agreement II.F.6.f.
7. Please provide a detailed technical
explanation of the mechanism(s) by which Verio generated the
list of names to be submitted to Register.com's Whois service
in Project Hen House. In its investigation report, VeriSign Global
Registry Services states its belief that Verio used the following
techniques in connection with Project Hen House:
Each of the Registry's TLD Zone files is
compared to itself, (every few days or even daily) in order to
produce a "dif" (or "difference") file, which
shows all changes between the versions compared. That "dif"
enables Verio to make inquiry, in automated fashion to the Registry's
WHOIS database, to determine the identity of the registrars involved.
The identity of the involved registrars enables Verio, in turn,
to access each registrar's Whois database to find the new (and
matching) domain names and the corresponding new registrants.
It thus appears that Verio makes automatic process to not one,
but three separate systems other than Verio's own, in order to
enable Verio's collection of the end-user registrant information.
If you do not agree with the Registry's
assessment of the techniques used in Project Hen House, please
contrast your detailed technical explanation with the explanation
provided by the Registry.
8. Please specify the extent to which Verio
has, since January 2000, downloaded zone files under each zone
file access agreement it has with Network Solutions, Inc.
9. Since January 2000, has Verio obtained
zone files for the .com, .net, or .org top-level domains through
means other than pursuant to a zone file access agreement with
Network Solutions, Inc.? If so, please describe those means.
10. Did Project Hen House involve the making
of Whois queries to NSI Registry's (Verisign Global Registry
Services') Whois servers? If so, please describe how the queries
were formulated (i.e. how the list of names to query was determined)
and state the number of queries made on a daily basis.
11. During the time Project Hen House was
applied to the Whois servers of Register.com, how many Whois
queries were submitted under Project Hen House to those servers
12. Has Project Hen House resulted in the
application of queries to the Whois servers of any ICANN-accredited
registrars other than Register.com? If so, please identify the
registrars involved and, for each registrar, describe how the
queries were formulated (i.e. how the list of names to query
was determined) and state the number of queries made on a daily
13. Is Project Hen House still involved
in making Whois queries to the Whois servers of the .com/.net/.org
registry or those of any ICANN-accredited registrar? If so, please
identify the Whois servers involved.
14. ICANN would benefit from learning your
technical assessment of the load placed by Project Hen House
on Whois servers of the Registry and involved registrars.
15. The standard zone file access agreement
prohibits use of zone file data to "enable high volume,
automated, electronic processes that apply to any .com, .net,
or .org registrar (or their systems) for large numbers of domain
names, except as reasonably necessary to register domain names
or modify existing registrations." Does Verio believe that
this prohibition only restricts use of zone file data to apply
for registrations of domain names? If so, please describe in
detail the reasons for your interpretation, and in particular
address what uses of zone file data Verio believes would be prohibited
in view of the phrase "except as reasonably necessary to
register domain names or modify existing registrations."
I believe that Verio's responses on the
points above will significantly assist ICANN in appropriately
proceeding on Verio's Petition for Termination of Registrar Accreditation
Agreement with Register.com.
If you have any questions about this matter,
please feel free to contact me by e-mail, with a copy sent to
||J. Alexander Lawrence, Esq.
||Scott Brown, Esq.
||Phil Sbarbaro, Esq.
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