ICANNs Enforcement Test

The Internet corporation for assigned names and numbers will soon face its first enforcement challenge as a spat between Verio and Register.com gets increasingly nasty.

Verio, a Web hosting and Internet access company, has called on the domain name systems management body to terminate its accreditation of Register.com, a large domain name registrar.

At issue are the conditions under which companies such as Verio can access the database, known as Whois, that contains contact information for those who register Internet domains. As part of their accreditation agreements with ICANN, registrars must provide access to Whois data for most purposes, except spam. Verio has been using information from Register.coms Whois database to try to market to that companys domain name holders.

Register.com filed a lawsuit in August 2000 against Verio, claiming it was violating the terms of use for Register.coms data. The company claimed, among other things, that Verio misrepresented itself as having ties to Register.com when soliciting its customers. A U.S. District Court judge early last month agreed and issued an order barring Verio from accessing Register.coms Whois data for marketing purposes. Register.com spokeswoman Shonna Keogan said Verios actions were “above and beyond” acceptable use of the data.

Verio said it will appeal the order and asked ICANN last month to terminate Register.coms accreditation. Verio claimed Register.com violated its agreement with ICANN in the onerous conditions it places on access to Whois data, such as reportedly requiring companies to post a performance bond.

“The ICANN accreditation agreement lays out very clear rules, and Register.com is trying to change those rules in the middle of the game,” said Verio attorney Michael Jacobs.

A. Michael Froomkin, a law professor at the University of Miami, said if Register.com violated its accreditation agreement and ICANN does nothing, “is there any incentive for anyone to follow the rules? Its a real test [for] ICANN.”

In a memorandum requested by the court, ICANNs general counsel, Louis Touton, said Verio may have improperly accessed Whois data, but he also indicated it appeared that Register.com may have breached its agreement with ICANN.

Still, it is unclear whether ICANN would go so far as to remove Register.coms accreditation. ICANN President Michael Roberts said that in the past ICANN has worked with registrars that have been the target of complaints to correct their behavior and has yet to remove a registrars accreditation.