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In Congressional Hearing, Stakeholders Highlight ICANN’s Failures and Need for Reform

Can we trust ICANN to conduct itself in a predictable, open, transparent, and accountable manner if it takes over governance of the Internet’s domain name system from the U.S. government?

That was the main question up for discussion Wednesday in the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, as lawmakers heard feedback from a diverse group of stakeholders about the National Telecommunications and Information Administration (NTIA) plan to relinquish its historical oversight of key technical Internet functions. Overwhelmingly the group called for caution and deliberation, proclaiming the importance of U.S. government oversight of this transition to ensure that the end result allows the global Internet community to hold ICANN accountable.

One of the most striking aspects of the hearing was the list of grievances stakeholders have with ICANN for its history of poorly enforcing its policies and its pattern of putting its own interests ahead of those of the global Internet community. Here is a sample of the issues raised by the witnesses’ testimony:

  • ICANN has failed to enforce registry agreements involving trademark controversies and excessive pricing, which has led to rampant abuse of the system. Most notably, ICANN’s ineffective oversight has led to the abuse of the .sucks global top-level domain (gTLD). This gTLD—run by the company Vox Populi—has asked trademark holders to pay exorbitant prices ($2,500) to protect their brands from their critics who will soon be able to purchase them for much less. Not surprisingly many, such as Congressman Darrell Issa (R-CA), have labeled this practice “extortion.” This can be especially harmful for small and medium sized businesses that do not have the resources to defend their trademarks. ICANN has done little to correct this practice and enforce its own policies.
  • ICANN has consistently failed to enforce its policies against domain name registrars that knowingly harbor or facilitate criminal activity. Despite multiple, verifiable complaints from relevant authorities, ICANN has a record of looking the other way when it comes to domain names for illegal online pharmacy activities from an accredited registrar. ICANN does this even though it is contractually obligated to stop criminal activity.
  • ICANN has shown a willingness to shirk the multistakeholder model in favor of national governments. For example, ICANN published rules that took three years of multistakeholder review to decide in 2012 that clearly indicated the gTLDs that were off-limits to the private community (e.g., .Brazil or .Americas). However, when Amazon applied for gTLDs that were not on that list (e.g., .Amazon), the governments of Brazil and Peru pushed back on the application. ICANN eventually succumbed to the political pressure and abandoned the rules created by its multistakeholder process to favor these governments, despite having no legitimate basis for doing so.
  • ICANN has been subject to capture by registries and registrars with a monetary stake in the domain name system. In particular, ICANN’s decision to issue an unlimited number of new gTLDs seems to have resulted from prospective registry entities that want to make money from more domains, defensive domains, and speculation. Ideally, ICANN should balance special interest with those of the global Internet community to enhance competition and the public good.
  • ICANN has a tendency to act in secret without any input from the community. Most notably, in September 2013, following the Snowden revelations, ICANN’s board passed a resolution to start the transition away from U.S. oversight. This decision was made absent the community and kept secret until months later. Regardless of the legitimacy of the concerns involving U.S. surveillance, this is an abject failure in transparency in an organization where this should be a priority.
  • ICANN is not friendly to small businesses. From the transparency of its board meeting minutes to the public comment period, ICANN does not make it easy for small businesses to engage. Moreover, small businesses cannot easily seek a review of an ICANN decision that materially affects them—a single, non-binding review of one of ICANN’s decisions can cost upwards of $1 million, out of reach for most small businesses.

For more than a decade, the U.S. government has served as a referee in the geopolitical game that constitutes global Internet governance, not to give an advantage to any particular stakeholders, but to make sure that there was a level playing field for all. If these types of problems can occur even while ICANN was under the limited supervision of the U.S. government, how far might ICANN go if left to its own devices?

This hearing was a reminder that the U.S. government cannot afford to take a hands-off approach to ICANN’s transition plan, but should use its existing oversight authority to demand that the ICANN board adopt the global Internet community’s proposed accountability reforms before any transition occurs. By demanding ICANN adopt the community’s recommendations for strong mechanisms in place to ensure accountability, transparency, and trust for all, the U.S. government can help set ICANN on a positive trajectory that will allow it to maintain the security, stability, and resiliency of the Internet while allowing participation from a global set of stakeholders.

Alan McQuinn, a research Assistant at the Information Technology and Innovation Foundation, contributed to this piece.

By Daniel Castro, VP at Information Technology and Innovation Foundation

Daniel Castro is vice president of the Information Technology and Innovation Foundation, the leading think tank for science and technology policy, and director of the Center for Data Innovation.

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.amazon was rejected, like other gTLD applications, Kevin Murphy  –  May 14, 2015 10:41 AM

.amazon was rejected, like other gTLD applications, due to section 3.1 of the Applicant Guidebook:

The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for the ICANN Board that the application should not be approved.

Whether it was a geographic string or not is completely irrelevant.

The testimony yesterday about .amazon was making Daniel Castro  –  May 14, 2015 1:03 PM

The testimony yesterday about .amazon was making at least two points. First, the GAC objection "overruled" the rest of the community discussion. One of the main arguments by the Obama administration is that ICANN is a multistakeholder model, NOT a multilateral model (e.g. United Nations-style of governance). While nobody is denying the governments should also have a seat at the table, if the GAC can impose its will over that of the community, this seriously undermines the legitimacy of the claim that ICANN is a multistakeholder institution rather than a multilateral one. Second, ICANN ignored its own process in following the GAC's advice. According to the testimony "...the ICANN Board to reject our Amazon applications, even though there was absolutely no legal basis for doing so, and even though the GAC objection period had ended three months earlier." (A third point would be that the U.S. government sat on the sidelines when it should have been protecting the interests of a U.S. company.)

The GAC never took that objection window Kevin Murphy  –  May 14, 2015 1:46 PM

The GAC never took that objection window requirement seriously, and ICANN did just basically ignore it, sadly. But the ICANN Bylaws give the GAC the right to issue advice about anything at any time, and the ICANN Board is obliged to listen to it. The board has the right to overrule the GAC under the AGB and Bylaws.

You need to get your facts straight John Berryhill  –  May 18, 2015 6:50 PM

Being outstandingly wrong on readily verifiable facts does not help you advance your argument: "A third point would be that the U.S. government sat on the sidelines when it should have been protecting the interests of a U.S. company." Where did you get the notion that the .amazon TLD applicant was a U.S. company? The applicant for the .amazon TLD was most certainly not a U.S. company. Who fed you that whopper? Here are the first two responses from the .amazon application: "1. Full legal name Amazon EU S.a? r.l. 2. Address of the principal place of business 5 rue Plaetis Luxembourg L-2338 LU" That's a European company, in case you thought that "Luxembourg" was somewhere in the United States. Why a European company? Because apparently the parent of this "U.S. Company" doesn't like supporting the U.S. very much. Waving the flag and shouting "USA!" is particularly obnoxious in this context. Oh, I see... companies like Amazon should be able to extend their middle finger at the U.S. government from a duchy in Europe and then complain that the U.S government is not helping them? You want help? How about not effectively telling the party you want to help you to go f- themselves.

ICANN is supposed to operate for the public benefit John Levine  –  May 18, 2015 7:13 PM

Beyond the confusion about who was applying for the .AMAZON name, do keep in mind that the name of the parent company is AMAZON.COM, Inc. with the ".COM" as part of their business name as well as part of their domain name. While I can certainly see why that company would like to own the registry for .AMAZON, it's not their name and I see no reason that their claim is anywhere near as strong as that of the 10 million people who live in the eight countries of the Amazon basin. Also, it seems disingenuous to make a legalistic argument that the GAC objected later than the rules called for, when up in your article you propose that ICANN invent new registry policies for .SUCKS that the rules don't allow at all. There are real issues here, but if you want people to take your opinions seriously, you need to do your homework.

well sort of John Levine  –  May 14, 2015 12:11 PM

Much of this is reasonable, but the whining about .SUCKS is not. Anyone can register a domain for complaint site, many people do, courts have ruled it’s completely legal. Why are companies so terrified that people might learn how lousy their products are?

the reason people think .sucks is extortionary Daniel Castro  –  May 14, 2015 12:47 PM

John, the main criticism about .sucks is less about allowing registration of complaint sites and more about the way the registrar has structured the roll out specifically to maximize fees for defensive registrations. It would be one thing if Vox Populi was charging a flat rate to everyone (and making it low-cost and competitive so that consumers could afford to purchase it), but they are willfully charging higher rates because they know that companies are going to pay (and they’ll have to pay an incredible premium to register it before it goes on sale to the general public). This isn’t designed to help consumers or businesses—it’s just setup to extract as much money as possible for the registrar. I simply don’t see how we can say that ICANN has protected the public interest here.

The price is irrelevant John Levine  –  May 14, 2015 7:57 PM

As many people, not just me, have pointed out, the point of defensive registrations is to defend trademarks. But courts have specifically said that sucks as a domain name is *not* a trademark infringement, since it is obviously not an attempt to pretend to be the trademark owner. The only legitimate reason for a company to do a sunrise registration is to provide their critics a place to express their concerns, and if you believe that's anyone's plan, I have some oceanfront property in North Dakota for you. The actual reason is to try to suppress criticism. Please explain why ICANN or anyone else should care or provide any aid for corporations to make a lame attempt to silence critics. Also note that the ongoing price for consumers if they just want a complaint forum is $9.95. Is that price too high? If so, what price isn't too high?

This is a loss for consumers Daniel Castro  –  May 14, 2015 8:20 PM

Vox Populi is charging $2,500 for the domain registration during the sunrise period. Why? Because they know mostly companies will spend that much. And then they're charging $250. Again, a needlessly high rate because its clear they expect businesses to be paying. How are these prices designed to foster criticism? My point is that Vox Populi (with ICANN's blessing) has intentionally structured its pricing to maximize its revenue, not help critics. Many companies will (stupidly) spend money on these registrations thinking they need to in order to protect their brand. When companies waste money, that translates into higher prices for consumers. So we all lose from this. I'm not defending companies that want to silence critics. In fact, I just published a report this week calling for federal legislation that would help consumers fight back against attempts to silence them through lawsuits and unfair non-disparagement clauses in contracts. If this were an honest effort to help consumers, there would be a lot less criticism of what is transpiring.

This makes no sense John Levine  –  May 15, 2015 1:05 AM

As far as I can tell, you're saying it's ICANN's fault that some companies are run by idiots who swoon at the idea that someone might say something rude about them, actually double idiots who haven't noticed that anyone who wants can say it already. (VERIZON-SUCKS.COM is there for anyone who wants it.) On the one hand, if the company is so fragile that a little criticism would destroy it, and the critics are all too dim to pick another domain, $2000 to shut them up is a steal. On the other hand, the companies complaining have obviously spent far more than $2000 paying lawyers to send threatening letters and press releases, so who are they kidding? You've made it abundantly clear that .SUCKS is doing us all a public service by giving us insight into which companies' stock we should sell short.

My point is that if ICANN's goal Daniel Castro  –  May 15, 2015 3:15 AM

My point is that if ICANN's goal is to enable third-party criticism of companies, then it would make much more sense to ban trademark owners from registering these domains and insist on low registration fees to open it up to the masses. Charging $2,500 a pop shows that the priority is profits, not helping consumers. Re: shorting stock, that's actually not a bad idea, although it's probably more a reflection of whether a company's legal department is very risk-averse or not. As you may know, organizational behavior is not always rational.

I assume that you are familiar with John Levine  –  May 15, 2015 12:49 PM

I assume that you are familiar with the new GTLD program's rules (available online of course) which were largely written by trademark lawyers. They don't let Vox Populi exclude trademark owners, so I'm not sure what the point is here. Given what the rules say, if one is trying to set up a complaints domain, I see no option less bad than what they're doing. And they DO have low registration fees for the masses, $9.95/year. If you're saying that the whole new TLD program is an expensive mistake that primarily serves to enrich ICANN and create a new class of rentiers, I wouldn't disagree.

You contradict yourself Andrew McConachie  –  May 14, 2015 8:24 PM

ICANN listening to the GAC is bad.

The USG not overseeing the IANA transition is also bad.

Is it only OK for governments to intervene if the outcome benefits IPR stakeholder interests?

I think you are missing the thrust here John Berryhill  –  May 18, 2015 8:54 PM

What Mr. Castro is saying is it should be mandatory for the US government to intervene on behalf of EU tax haven companies that don't pay one red cent to the US government. Let's face it companies like Google, Apple and Amazon would be a shambles if they had to repatriate profits, and their owners would be living in cardboard boxes under highway bridges - you know, like veterans who actually sacrificed something for the United States (nothing as important as Amazon's money, mind you, but token things like limbs, minds and lives). The US government needs to stand up for companies like Amazon EU, S.a.r.l., who boldly stand abroad and say "do stuff for me without pay" just like their US counterpart did to their warehouse workers in Integrity Staffing Solutions v. Busk. (where the Supreme Court found in Amazon's favor that making their workers wait on premises for security checks was not "work" that needed compensation). It's a safe bet, on the other hand, that they gratefully pay their lawyers for every nanosecond in the lobby or the elevator. But we can't let this "prosperity" craze get out of hand.

ICANN is Obligated to Comply with the Data Quality Act Bruce Levinson  –  May 14, 2015 9:35 PM

In 2004, the Center for Regulatory Effectiveness informed ICANN that they are subject to the requirements of the Data (Information) Quality Act. In a multi-part series of articles on CircleID, we explained that detailed tha law that,

The purpose of the Act is to ensure that: 1) information disseminated and sponsored by federal agencies meets standards for quality, objectivity, utility and integrity; and 2) the public has meaningful recourse for seeking and obtaining correction of information not meeting quality standards.

ICANN’s obligations under the DQA are binding.

ICANN was not complying with the DQA in 2004. If ICANN is not currently complying with their responsibilities, the proper recourse is to enforce the terms of the MOU through the DQA correction process, not to free ICANN from its obligations.

So what is the upside of continuing the NTIA-IANA contract? John Berryhill  –  May 18, 2015 11:48 AM

“One of the most striking aspects of the hearing was the list of grievances stakeholders have with ICANN for its history of poorly enforcing its policies and its pattern of putting its own interests ahead of those of the global Internet community.”

The other striking aspect of the hearing is that only those with grievances were invited to testify.

All of the things listed in your six bullet points happened under the existing arrangement with NTIA.  So quite obviously removing NTIA from the picture would not have changed these outcomes.

The structure you advocate maintaining is the structure which produced the outcomes you cite as reasons for maintaining it.

“ICANN has failed to enforce registry agreements involving trademark controversies and excessive pricing, which has led to rampant abuse of the system. Most notably, ICANN’s ineffective oversight has led to the abuse of the .sucks global top-level domain (gTLD). ... ICANN has done little to correct this practice and enforce its own policies.”

Which section of the .sucks gTLD registry agreement has ICANN failed to enforce? 
Please cite by section number.  Thank you.

Alternatively, please identify which of ICANN’s “own policies” is violated by the .sucks gTLD.

There seems to be a continuous parade of folks claiming violation of some law or policy, and very little in the way of identifying which one(s) they are talking about.  Having expended the effort to alert the community of these apparent violations of… something, would you care to identify just what it is you believe to have been violated?

These violations of policy and/or law must apparently be so obvious to you that it shouldn’t be a difficult question to answer.

Are you still with us? John Berryhill  –  May 19, 2015 2:59 PM

"ICANN has failed to enforce registry agreements involving trademark controversies and excessive pricing..." Daniel, could you please point to the ICANN registry agreements involving excessive pricing and ICANN's failure to enforce them, or are you just a liar of the simplest sort?

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