[ncdnhc-discuss] [long] The NCDNHC's .org report is numerically inconsistent.

[Harold J. Feld]

J-F C. (Jefsey) Morfin wrote:

> On 15:28 21/08/02, Thomas Roessler said:
> 
>> http://www.icann.org/tlds/org/applications/isoc/section5.html#c25A1
>>
>> 1. ORGWatch
>> This service, available at a nominal fee, will allow monitoring of  a 
>> .ORG domain name, or a keyword and its domains associated with  the 
>> keywords. Any changes to the domain name data for the linked  domains 
>> will result in a notification being generated.
>>
>> The keyword part of that sounds like what you really want when you're 
>> interested in suing or UDRPing everyone who registeres 
>> <yourdomain>sucks.org as quick as possible.
> 
> 
> Dear Michael,
> as a US lawyer you must be familiar with 1996 revision of the 
> communication act. I am interested in the following.

I'm not Michael but I do deal with the 1996 Act on occassion.


> 1. prior to the Internet defintion given by 47 USC 230 (f)(1) the FNC 
> passed a definition on Oct 24, 95 in consultation with IP rights 
> representatives which talks about protocol, address continuity and 
> access to high layered services. None of the tow definitions talk about 
> namespace and domain names.


True, but I'm not sure what you're getting at here.


> 2. IP addresses are related to the hardware and lines. They therefore 
> share in the oganization of the telecommunication service. I certainly 
> see how the whois/DNS fall into the information service definition but I 
> hardly see how the delivery of a DN can fall into either definitions (it 
> may be carried by regular mail). One can therefore claim that DNs are 
> informations used together with the IP to partly permit the 
> telecommunication management. As such they should be protected by 
> telecommunication regulations.


O.K., I see where we're going, I think.

The Communications Act of 1934 divides things into catagories. 
"Telecommunications Services" are regulated under Title II of the Act. 
"Radio" (meaning any electromagnetic spectrum use, except where the act 
place mobile telephone service and other commercial radio service 
operating as a common carrier explicitly under Title II) is governed by 
Title III, and cable television is governed by Title VI.

In a series of proceedings known as the "Computer I, II, and III" 
proceedings, the FCC defined data processing services and other services 
offered via communications networks, but not themselves 
telecommunications services.  These services were initially called 
"enhanced services," but are now called "information services."  The FCC 
found it had general jurisdiction over enhanced services (now 
information services) through its Title I "ancillary jurisdiction" -- a 
broad catagory meant as a catch-all for anything communication-related 
not covered elsewhere in the Act.

The 1996 Act adopted the FCC's definition of "information services" and 
generally left them alone.  At the last minute, Senator Exon added an 
amendment known as the Communications Decency Act (CDA).  Section 230 
was added by operation of the CDA.

The difficulty is that the CDA addressed Internet services, not Internet 
plumbing -- which the FCC had been careful never to do.  Also, the 
Computer I, II and III proceedings had not been addressing the modern 
Internet or even packet-switched technology generally -- it (and 
"information services") address any value added service provided by a 
third party via telecommunications.

The status of DNS as part of the "telecommunications" system in Title II 
or merely part of the Ancillary Title I authority is a matter of 
considerable debate.  In its recent Declaratory Order on cable Internet 
access, the FCC found that cable Internet is an ancillary Title I 
service rather than a Title II service because the provider offers value 
added features like DNS resolution.

Personally, I think this is nonesense.  The mechanical application of a 
DNS look up is no different than the SS7 network looking up a phone 
number and opening a circuit.  But go read the Order.


> 3. telecommunications regulations prevent operator to disclose 
> information on their subscriber without their prior consent. I hardly 
> see how ORGwacth may be legal if the registrant is not asked if the 
> change he makes can be disclosed under such a services (if I am right it 
> is section 631) and if I am correct it is to be in each case, what means 
> that the watched Registrants should be told the name of all the watchers.
> jfc

Section 631 specifically addresses cable television. Whether it applies 
to Internet service at all is questionable.


Incumbent local exchange carriers (ILECs) have to restrict their use of 
customer premise network information (CPNI).

Neither of these has anything to do with DNS, because name registration 
is not a telecom service or covered by the statutes governing telephone 
numbers.

Harold