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Kelly’s Case Updated: A Need for Further DNS Registrar Industry (Self-)Regulation

After ten hectic days, the young Clemson civil engineer turned MBA entrepreneur—who turned a passion for helping equestrians care for their horses into a website enterprise—had the HorseDVM.com domain, and its IPR returned to HorseDVM LLC. Ultimately, however, it was the registrant who realized the registrar had wrongfully sold him the domain and the unfairness of what had occurred, who facilitated the return. The culpable registrar ultimately did nothing but unfailingly support its auction subsidiary’s sale of a fully paid, established business domain without notice or approval, notwithstanding the facts and terms of the customer contracts. The terse self-serving answer after several engagements in their unfriendly review process was to “get a court order or go to ICANN.” The registrar “alt-truth” behavior was so incredulous that the only plausible explanation was they wanted to limit their exposure to potential litigation for damages.

Kelly taking this on was forgone. Having helped lead the engineering design efforts for Dubai infrastructure, when wrongfully denied layoff compensation, she learned UAE labor law, donned a burka and successfully argued her own case before a local administrative court. Here in a new career, she got the domain returned. So what now? What was learned? What can be done going forward?

Over these past ten days, the incident—via the previous CircleID article, extensive social media, eMails, old-boy networking, and teleconferences—catalyzed a considerable array of research, dialogue, advocacy, attorney conferences and law enforcement contacts. The CircleID article alone has generated more than 4000 views and 21 comments. John Berryhill in particular graciously provided sage counsel. The equivalent of a DNS Ralph Nader, Charles Christopher, helped with research but concedes that “Name and Shame” is the only corrective action. However, the discovered reality also caused a reflection on the nearly twenty years of the so-called Internet self-governance regime contained in my Congressional testimony before Congress in 1997 and 1998 (one of which is still available thanks to Brewster Kahle’s repository).

It became apparent that the decision to go the self-governance route for internet names has engendered a veritable cesspool of bad, if not criminal behavior that everyone seems to decry and no one is able to solve. Allowing registrars to run domain name gambling operation subsidiaries is a patent structural flaw long recognized in other industries and prohibited by regulation. As the FTC has noted and a simple search confirms, there appears to be near zero advocacy for the interests and protection of the domain services consumer. Registrar cyber security seems like an oxymoron. Oft heard at the end of some litany of incidents is the remark that there are no government regulation or enforcement powers, so ICANN is helpless. In fact, some of the largest expenditures seem directed at public relations and lobbying efforts to limit government action worldwide.

So inquiring minds might ask, what if twenty years ago, the EU and ITU efforts had been successful to treat “DARPA Internet names and numbers” like most other telecommunication name and number regimes, including E.164 telephone numbers? This was actually done for the OSI Internet domains, and indeed, the U.S. Department of Commerce promulgated regulations for the US OSI domain and designated a contractor registry. This was all tossed out the window for the DARPA Internet at the little known but ultimately pivotal meeting in Washington in Sept 1994 on “Domain Name Registration for the ‘.COM’ Domain” that led things in a fundamentally different direction.

There is also a certain irony that the original leader of the DARPA tcp/ip development group has undertaken a personal initiative over more than a decade to undertake a kind of corrective action by forming the Swiss-based DONA Foundation with intergovernmental and governmental agreements and standards that render legacy internet names and numbers meaningless. His efforts were in part initiated by the need to deal with authoritative intellectual property tagging.

It seems unlikely that significant corrective action will ensue here anytime soon. Highly profitable, low margin domain name services create their own political persistence. ICANN’s helpful new SVP for Contractual Compliance and Consumer Safeguards arguably has an impossible task - including conflicting roles. High-profile, class action litigation may also bring about corrective action. It is also notable, however, that the Trump family’s cybersecurity activities have largely revolved around their attempts to protect their intellectual property in the existing domain name regime. Thus, ultimately, even if governments through legislative or juridical action individually or collectively via the ITU don’t act, or the U.S. balks, new technologies such as DONA’s DOA, or blockchain, or NFV resolvers, or search engines themselves will significantly change what now exists. Technology itself will bring about corrective action.

By Anthony Rutkowski, Principal, Netmagic Associates LLC

The author is a leader in many international cybersecurity bodies developing global standards and legal norms over many years.

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