Kent asks what in RFC-3 violates the law of any nation. To provide a meaningful answer, it appears to me this question must be broken down into meaningful parts. I limit myself to American law, and invite folks from other countries to comment. 1) What actually breaks any laws if ICANN adopted these recommendations? a) Anti-trust concerns ICANN is a private corporation. Whether the "government instrumentality" exception found by the *Thompson* court applies to ICANN is unclear. While ICANN is still covered under its MoU with NTIA, the White Paper states that anti-trust and consumer protection laws are important safeguards that check ICANN's potential for abuse. OTOH, the White Paper also has a clear intent that WIPO address the cybersquating issue, and that ICANN should look at its recommendations. All of this makes the question of whether ICANN's requirement that all users of its bottleneck facilities comply with certain conditions that forward policy goals unrelated to technical stability issues a tough call. b) RICCO. I don't really think that refusing access to a bottleneck facility counts as extortion, but it's kinda fun to throw in. I just envision Mike Roberts in a bad suit and cheesy "mob" accent saying "I got an offer youse can't refuse." c) Various violations under the Communications Act of 1934 Is ICANN a provider of telephony services? Almost certainly not. It is even questionable whether they are a provider of enhanced services. However, imposition of new restrictions on registries arguably effects the deployment of advanced telecommunications services under Section 706. My gut feeling on this is that the FCC would not touch this with a ten-foot poll, and if forced to the wall will defer to NTIA. Still, if lots of Americans start losing their domain names or start getting threatened with arbitatration proceedings they don't understand, federal agencies will start to take note. 2. Will the WIPO provision be enforced? a) Contract of adhesion Others have made the contract of adhesion argument. Again, are the NSI cases applicable here? As a practical matter, a court is likely to take a very different view when an American citizen is forced to participate in arbitration administered by some U.N. outfit based in Switzerland (yeah, we're parochial provincial scum) rather than a nefarious cybersquatter holding an innocent corporation hostage. In this country, we haven't even settled on the validity of shrink-wrap/click-wrap contracts with mandatory arbitratrion clauses. 3. What provisions go beyond existing law? a) As others have discussed at length, the WIPO recommendations are designed to supplant existing law with a private contract system that, while retaining the right of the plaintiff to chose the forum, require the name holder to submit to arbitration. The fora where the plaintiff may bring suit are fixed by contract, whereas the fora wherein the nameholder may seek judicial review are uncertain. Other objections based on the traditional balances struck by TM law have been made at length by others. To conclude, we may profitably ask three questions: 1) Does adoption of the WIPO recommendations by ICANN break any U.S. law? (Possibly, but difficult to tell.) 2) If ICANN adopts the recommendations, will a court in the U.S. permit ICANN to enforce them? (Again, difficult to tell.) 3) Assuming the answer to #1 is "no" and the answer to #2 is "yes," is the policy a wise policy to adopt? (I obviously think not, others will disagree). Harold
