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From: Russ Smith [russ@consumer.net]
Sent: Thursday, January 27, 2000 10:17 PM
To: Andrew McLaughlin; reconsider@icann.org; Hans Kraaijenbrink; Amadeu Abril i Abril; Ken Fockler
Cc: Louis L. Touton
Subject: RE: Reconsideration Request 00-1

Dear Mr. McLaughlin, Reconsideration Committee, and ICANN Board of Directors:

I wish to amend my request for reconsideration as well as respond to your message below. I am also requesting the information I am providing in this e-mail message be reviewed by the reconsideration Committee as well as forwarded to the ICANN Board so this may be reviewed prior to the review of this matter by the ICANN Board. In addition, I request the reconsideration board further clarify their response to me on the following issues:

ICANN's incorrect interpretation of the RFC's - It is my understanding that the RFC's cited place restrictions on host names, not domain names. A domain name consists of a) The registration of a domain name and b) the actual implementation of the name by entering it into the root server system. It is my understanding that the RFC's (hence, the contracts) only prohibit 'a' and not 'b.' In addition, another RFC (1035) which has completed several steps in the approval process may become allowed in the future.

As a side note it has also been pointed to ICANN that there are numerous domains that are allowed to stay registered even though they do not conform to the RFC's and, therefore, I believe violate the ICANN/registrar and/or Registrar/Registry agreements. Many domains are allowed to stay registered even though they have no namservers listed. One example is America Online has been permitted to keep BLIMEY.COM even though it has not had any nameservers listed. This condition has persisted for at least 1 year. last time I checked (about a year ago) there were approximately 1,400 domains in this condition. I have identified several more since then.

Therefore, I am requesting that the original registrants of the 846 trailing-hyphen domains be given first opportunity to register these domains in the future should they be permitted by future RFC's. This situation is similar to restriction which may be placed on other types of property such as land. The government may place a restriction on it such as no building on wetlands but additional justification is needed to actually take the property (particularly if there are plans in the works to sell this property in the future).

It is my understanding that a similar policy has been implemented in the past by Network Solutions involving the preferential registration. I believe this was part of some versions of prior dispute policies and this situation has happened in several cases and I have documentation proving such preferential treatment was given to America Online concerning AOLSEARCH.com. I understand Mr. Touton has all the documentation relating to this incident but I will be happy to supply copies if needed.

Clarify "revocation" - I am requesting the reconsideration clarify the following:

"Mr. Smith appears to be operating under the mistaken impression that ICANN made a decision to revoke those names. ICANN does not have the ability to cancel or revoke specific domain names; rather, ICANN has the power to enforce the terms of its agreements with registries and registrars, which may require the cancellation of registrations performed by mistake."

What is the difference between ICANN/DOC revoking the domains and ICANN/DOC enforcing terms of an agreement which results in the revocation of the domain names? It is my understand that ICANN is operating under a cooperative agreement with the Dept. of Commerce. As a result of this project ICANN/DOC developed standard registrar/registry agreements and require registrars to implement certain provisions for all registrar/registrant agreements. All registrars must follow these agreements in order to operate their business. DOC has stated numerous times that they control the root servers and the cooperative agreement between ICANN/DOC clearly states the US Government may terminate the ICANN agreement. It is my belief that the registrars would have allowed the domains to stay (and continue registering them) had ICANN permitted a change in the contract. As a result ICANN/DOC enforces the provisions and effectively revokes the domains. what is the difference between this and ICANN revoking them? I have also asked DOC to provide the statutory authority to seize property in this matter pursuant to the 5th amendment. They have not provided a response. I request that the ICANN board identify this authority.

My request for reconsideration also involves the public statements of Mr. Roberts of ICANN. Mr. Roberts clearly indicated in public statements that "consumer confusion" and other issues relating to the Lanham Act. One recorded statement was:

"Frankly, what we're trying to accomplish here,
as we have all along, is to create consensus
around the mainstream view, and you know
we've talked to a lot of people in the last
couple of days, and there is no general support
out there for trailing hyphens. There is
a broad feeling that trailing hyphens don't help
anybody and that they do lead to confusion.
All you have to do is look at some of those
lists of the names that have been registered out
there and there are people saying it is intent
to cybersquat plain and simple."

The issues raised in Mr. Roberts comments were not raised in the official ICANN statement. It is very clear that "consumer confusion" was a part of the ICANN decision. It is also my understanding and belief that Mr. Touton has made an extensive effort to cover up the fact that these considerations were part of the decision. Without going into a series of conspiracy theories I believe ICANN should provide a full explanation of the decision-making process. If there were problems that occurred, mistakes, made, etc. these issues should be addressed, mistakes corrected and additional steps taken to ensure it does not happen in the future. In particular, attempts by the ICANN legal staff to cover up issues such as these should cease immediately as this directly violates the DOC/ICANN cooperative agreement and I believe would be grounds for intentional misconduct charges against ICANN staff.

One final note on the public statement issued by ICANN. The statement implies that the trailing hyphen domains are causing some type of Internet instability based on some malfunctions identified. I have also requested from Mr. Touton any information supporting this. ICANN has not supplied any.

It is my understanding that these malfunctions involve client programs that do not work. Proposed RFC 1035 already takes into account possible failures of clients and similar failures have also been documented concerning the longer domain names now being registered. If there was such a threat ICANN would not have let the domains continue to operate. As of January 27, 2000 my domains are still operating:

http://ip-.com

http://microsoft-.com

Russ Smith

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