Invitation to Verio to Submit Response in Connection With Petition for Termination of Register.com's Registrar Accreditation Agreement (17 February 2001)

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 specific topics:

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 license.

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 license.

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 House?

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 each day?

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 basis.

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 Register.com's counsel.

Best regards,

Louis Touton

cc:	J. Alexander Lawrence, Esq.
	Scott Brown, Esq.
	Phil Sbarbaro, Esq.