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By Joseph Wright
May 13 — The chair of a House Judiciary Committee panel cautioned about rushing the transition of U.S. domain name system oversight to the global multistakeholder community May 13 while seeming to accept the inevitability of a transition.
Rep. Darrell Issa (R-Cal.) warned against “rushing” the Internet Assigned Numbers Authority transition at a time when, he said, certain questions and perhaps flaws in the domain name system are being exposed. Nevertheless, he flagged the central question of the hearing as, “Is it appropriate to have the transition as scheduled, or should there be further delay with a short extension in order to ensure that the process that cannot be undone is done right the first time?”
Issa's remarks came during the Subcommittee on the Courts, Intellectual Property and the Internet's hearing entitled “Stakeholder Perspectives on ICANN: The .sucks Domain and Essential Steps to Guarantee Trust and Accountability in the Internet's Operation.”
Issa pointed primarily to the recent controversy over the delegation of the .sucks generic top-level domain to the Vox Populi registry and its controversial pricing practices. “Have we gotten into a business model that was never envisioned?” Issa said regarding .sucks. “The process being done by the companies that gained the rights appears to this member to be nothing more than legalized extortion.”
Vox Populi has drawn intense criticism in recent weeks for charging trademark holders up to $2,500 to purchase their names in the .sucks TLD during the pre-general availability sunrise period, possibly even more during general availability, while charging consumer purchasers as little as $10.
Judiciary Committee Chairman Bob Goodlatte (R-Va.) went even further than Issa, stating that the .sucks delegation has resulted in brand owners being “shaken down by a company in financial default to ICANN.” Goodlatte said that the representativeness and effectiveness of the ICANN community at steering the organization require substantial investigation prior to any transition.
Following complaints by the intellectual property owner representatives regarding Vox Populi's practices, ICANN requested that the Federal Trade Commission and its Canadian counterpart the Office of Consumer Affairs investigate .sucks to determine whether Vox Populi had violated either nation's laws.
That request, regarding a string ICANN itself had just delegated, “demonstrated the absurdity and futility of ICANN's own enforcement processes,” Goodlatte said.
Jonathon Nevett, executive vice president at gTLD registry operator Donuts Inc., told Bloomberg BNA May 12 that the focus on .sucks is misplaced.
“To me it's a bit of a sideshow. The IANA transition is so much more important to everything going on with ICANN,” Nevett said. “This is not a new issue—there are over 60,000 ‘sucks' sites in legacy TLDs, like verizonsucks.com. If someone wants to have a gripe site, they'll have a gripe site, whether it's on .sucks. .com, Twitter, Facebook or something else.”
Neither ICANN nor Vox Populi was invited to testify at the hearing.
ICANN's enforcement of registrars' contractual obligations also came under fire at the hearing, chiefly from LegitScript president John Horton. LegitScript verifies online pharmacies and goes after Internet pharmacies selling illegal drugs, including drugs without the necessary prescriptions, and it filed the complaint that led to Canadian registrar Tucows Inc.'s inclusion in the U.S. Trade Representative's March 2015 Notorious Markets List.
Horton said that just 12 registrars are responsible for registering websites providing half of the illegal drugs sold on the Internet, and that the leading registrar for such sites is kudo.com, a Momentous Corp. company. Momentous is the parent company of Vox Populi as well.
Horton's chief complaint with ICANN's compliance office is that it closes complaints that do not result in website takedowns, asserting that registrar's have responded appropriately to the complaint but without disclosing the nature of the response. Horton's written tesimony included 750 such closed complaints.
“By finding that the registrar is responding appropriately in these cases, ICANN in essence gives a green light to the registrar to continue facilitating and profiting from the illegal activity, thereby putting Internet users at risk,” Horton said. “By refusing to explain what the registrar did that supposedly constitutes an appropriate response, ICANN lends the impression that it is participating in a cover-up.”
Horton challenged ICANN to explain these responses in the name of transparency.
After the hearing, ICANN Chief Compliance Officer Allen Grogan told Bloomberg BNA that the scope of appropriate registrar responses varies widely due to the nature of the complaint. A registrar may determine that the complaint raises complex legal questions it is ill-positioned to adjudicate, Grogan said, giving the example of a pharmacy responding to an abuse complaint by providing the registrar with evidence that it is duly licensed in its home jurisdiction. In such instances the registrar may be justified in withholding action barring a court order, and in any case the registrar's choice is a binary one — suspend the registration or take no action.
Grogan defended the ICANN compliance office's practice of communicating confidentially with registrars during the informal dispute resolution process, saying it leads to more open channels of communication. He added that this practice is a staff determination and that it has not been subjected to a formal ICANN policy development process.
Grogan said he is considering issuing formal advisories aimed at finding common ground between registrars, the IP community, law enforcement and other stakeholders regarding abuse reports, but that finding such common ground through the multistakeholder process takes time.
At the end of the hearing Issa asked all eight witnesses whether the transition needed more time beyond the Sept. 30 expiration of the current IANA contract, and all agreed that it will. Nonetheless, several witnesses exhorted Congress to allow the transition to proceed apace, albeit with whatever extension of time is needed to implement transition plans.
Steve DelBianco, executive director of NetChoice and who has taken the lead in stress testing the transition process, said that the worst possible outcome would be an unaccountable post-transition ICANN, but that the U.S. governments' current oversight role is “unsustainable in a post-Snowden world.”
DelBianco said the ICANN community has put thousands of man-hours into creating new accountability mechanisms for the organization, but he called on Congress to help ensure that they are carried through.
“Even with an extension in time we worry that ICANN's board and management will resist the approval of this plan and impede its implementation,” DelBianco said. “What Congress can do while we still have the leverage is to insist that the NTIA require ICANN to accept and implement the final community proposals as a condition of the IANA transition.”
Philip Corwin, founder of Virtualaw LLC in Washington and testifying on behalf of domain industry trade group Internet Commerce Association, said that the NTIA's transition announcement raised global expectations, and Congress should not reflexively oppose a transition that the community has worked so hard to effectuate.
Nonetheless, he said, a successful transition is not just about implementing community-developed accountability mechanisms, but about an attitude adjustment at the highest levels of ICANN as well.
“While enhanced ICANN accountability measures are overdue,” Corwin said, “they will operate best only if ICANN's board and senior staff embrace a culture of accountability that assumes responsibility for the fallout of ICANN decisions and encompasses early consultation with the multistakeholder community that provides its organizational legitimacy. We're some distance from that culture.”
Bill Woodcock, executive director of the Internet Commerce Association testifying on behalf of the Consolidated RIR IANA Stewardship Proposal Team, said that while the naming community still has work to do on its transition planning, the numbers and protocols community have long completed their proposals for the transition of those functions away from NTIA oversight. He said Congress should permit the transition of those technical functions to go forward by the initial Sept. 30 deadline for the IANA transition as a show of U.S. government good faith toward the global multistakeholder community regarding the transition.
During his remarks, Goodlatte charged that President Barack Obama's administration had “aided and abetted efforts within ICANN to expand the influence of foreign governments at the expense of American companies,” by refusing to intervene in Amazon.com Inc.'s application for the .amazon TLD.
In April 2014 ICANN's board accepted consensus Governmental Advisory Committee advice that Amazon's bid should not proceed due to its lack of support from the South American Amazon River region. The U.S. government permitted the GAC to reach consensus on the advice by abstaining on the issue.
Paul Misener, vice president of global public policy for Amazon, said the treatment of his company's application called into question the multistakeholder governance model's ability to remain free from governmental control, saying ICANN caved on .amazon in the face of “moderate government pressure.”
Misener said that ICANN accountability reforms should not merely be prospective, suggesting that ICANN should revisit the .amazon decision in the future.
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