The Fable Of Front Running: ICANN Says ‘No Evidence’ But Network Solutions Is Sued In Class Action

by Matthew Hall and Tyrilly Bolton
In November, we wrote that the Security and Stability Advisory Committee (SSAC) of the Internet Corporation for Assigned Names and Numbers (ICANN) which administers domain names, had launched a probe into the practice “front running”. Front running involves monitoring checks of a domain name’s availability and then registering that domain name address yourself so you can sell it to another party (usually the party checking for availability) at a profit.Despite concerns in October last year, ICANN’s new report now says it has insufficient information to conclude that any party has engaged in front running. To this end, the SSAC says that of the 1.4 billion attempts to register domains, only 3.3 million were satisfied, suggesting that, on average, 333 attempts are made to register a domain name for every fulfilled domain registration.A copy of the SSAC’s report can be found here.New recommendations from ICANN include that Registrars should provide clear notice to Internet users regarding how they treat information submitted during an availability check. However, it remains to be seen whether the Registrars themselves are engaging in, and perhaps the cause of, the front running phenomenon.Take, for example, Network Solutions. Domain Name News reports that a random domain name searched by Domain Name News was unavailable for registration through the whois Registrar, but available to register through the Network Solutions Registrar. Network Solutions has recently changed its policies, to “lock up” any domains that are the subject of an availability search.When some of the domain name searching tools on Network Solutions’ web site are used, the domain name the subject of the search is registered to Network Solutions immediately. It says that this is to ensure that a “front runner” can register the address, and the address is then available for any Network Solutions customer to register it. The organisation claims the new policy protects consumers against front running. Critics have complained that the policies themselves amount to front running.ICANN’s October report says this is legitimate. “ICANN’s Registrar Accreditation Agreement and Registry Agreements do not expressly prohibit registrars and registries from monitoring and collecting WHOIS query or domain name availability query data and either selling this information or using it directly.”However, a US law firm has begun a class action suit against the company alleging that it earns revenue by locking in customers who made a query, forcing them to buy domain names from Network Solutions rather than another source. As the matter progresses, it may lead to further changes in doamin name registration and renewal practices.It seems this process is generally deplored, and companies such as Singapore Network Information Centre are trying to regain consumer confidence by incorporating clauses into their Registrar contracts to assure consumers they are not warehousing domain names for the purpose of removing them from general availability.Now may be time to conduct a confidence check to see what your domain name Registrar is doing.Swaab was recently named winner ‘Best Law Firm in Australia (Revenue < A$20m)' at the2007 BRW-St George Client Choice Awards.The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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