2014-11-14

ICANN Exists for Itself and Insiders, to Exploit Domain Name Registrants

(Note: This is a follow-on to yesterday's ICANN FY15 Budget, New gTLD Domain Names #FAIL)

The first thing one should know and understand about ICANN is that ICANN is lacking in integrity--ICANN even lies about itself--

Resources - ICANN: ICANN "is a not-for-profit partnership of people from all over the world" -- this statement about ICANN on ICANN's website is FALSE. ICANN is not a partnership. ICANN is a California non-profit corporation with no membership, no partners, no stockholders, nothing, other than a Board of Directors which owes its fiduciary duties to the corporation, not  to a "partnership of people from all over the world." There is no legal "ownership" or "membership" or "governance" or "oversight" of ICANN by any "global internet community," or "multistakeholders," or any other concoction of the phrase "not-for-profit partnership of people from all over the world." 

ICANN, the California non-profit corporation, was formed at the instance of the U.S. government, to essentially be responsible for three things:

a) the technical coordination necessary for operation of the internet--the IANA functions--which are executed by Verisign (on a no-fee contract), the global technical community (people who do not work for ICANN), and a small staff of not more than 10 people employed by ICANN who perform mostly "clerk" functions;

b) policy-making regarding the domain name system (DNS); and

c) governance of domain name registry operators, registrars, and registrants.

At a typical ICANN meeting, you will find (besides ICANN staff, officers, and directors) people who largely fall into one of the following categories: a) the technical (IANA functions) community; b) the domain name industry--which dominates and has largely captured ICANN--registry operators, registrars, service providers, and their attorneys, lobbyists, et al, many of whom are trying "to game the system" for their own profit-making ends so they can exploit domain name registrants, financially and otherwise; and small contingents of c) government representatives; d) members of civil society/academia; and e) business and trademark "stakeholders."

ICANN's failure to have, within its organizational structure, equal and identifiable representation for the interests of domain name registrants has been disastrous--just look at the failure of ICANN to govern the outrageous conduct of new gTLD registry operators enabled by ICANN in its new registry and registrar agreements--see, e.g.For Domain Name Registrants, ICANN Is Useless and ICANN Fails to Prohibit Warehousing OR Speculation in Domain Names by new gTLD Registry Operators and Registrars and ICANN, New gTLD Domain Name Renewal Fees, Price Gouging. The whole organizational structure of ICANN, and its registrar and registry agreements, enable, intentionally or not, the exploitation (financially and otherwise) of domain name registrants by, primarily, the domain name industry, and secondarily, by ICANN itself as a recipient of fees collected from the registrants, directly and indirectly, by registrars and registry operators ("follow the money"). Furthermore, ICANN has failed to prevent the loss of domain names by UDRP abuses, or domain name thefts, or provide swift remedies for recovery of stolen domains, which ICANN could very easily do if it really cared about domain name registrants.

Protection of the public interest and domain name registrants from abusive ICANN practices and policies and registry and registrar malfeasance, to some degree, used to be provided by way of US government oversight, which unfortunately, has pretty much been AWOL in recent years, although as recently as two years ago, the US government essentially found ICANN to be unfit:
"The Commerce Department said it had canceled a request for proposals to run the so-called Internet Assigned Numbers Authority [IANA] because none of the bids [including ICANN's] met its requirements: “the need for structural separation of policy-making from implementation, a robust companywide conflict of interest policy, provisions reflecting heightened respect for local country laws and a series of consultation and reporting requirements to increase transparency and accountability to the international community.” (emphasis added; source: NYTimes.com)
Right now, ICANN presumably has benefit of a "government contractor" immunity because it operates via a contract granted it by the US government. Once that contract is gone (September 2015?), will domain name registrants be able to resort to class actions and other litigation under U.S. federal and California state laws, against ICANN and its "contractors"--the registry operators and registrars? If so, besides being a windfall for class action law firms and the U.S.plaintiffs' bar, it may be a way to give domain name registrants some protection and remedies now lacking. Recommended reading: ICANN and Antitrust by A. Michael Froomkin and Mark A. Lemley (pdf).

Final note: It does not appear that any oversight of ICANN nor other effective means of redress will emerge from the current "ICANN-convened-and-controlled" IANA Transition or Enhancing ICANN Accountability processes, as a means for domain name registrants to seek effective redress for wrongful actions or omissions of ICANN or its registry operators and registrars.




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