2015-06-28

FBI and FTC Join ICANN, GAC, PSWG: ICANN 53 Review, Part Two

photo: ICANN 53 RySG meeting with FBI and FTC reps
ICANN 53 RySG meeting with FBI (middle) and FTC (left) reps;
Far right: Keith Drazek, Verisign, Chairman of the RySG
This is the second in a series on ICANN 53 which just concluded its meeting in Buenos Aires. Find Part One here: IANA Transition and ICANN Accountability. UPDATE: Part 3: ICANN is NOT a new gTLDs Marketing Agency.

It became clear to Domain Mondo during the course of ICANN 53, that the US government is already participating in ICANN meetings as if the IANA stewardship transition is finished--which is a good thing--representatives of the US Federal Trade Commission (FTC) and the FBI attended ICANN 53 in Buenos Aires and met with the RySG (Registry Stakeholders Group -Registry Operators of all gTLDs) and the Registrar Stakeholder Group and others. They explained their involvement in the newly created Public Safety Working Group (PSWG), a sub-group under the Governmental Advisory Committee (GAC), to engage and interact with the ICANN community, how they will be participating in ICANN in the future, and "potential areas of interest" as of June 2015 (see below):

Slides from GAC-PSWG presentation by representatives of the FTC and FBI at ICANN 53
Above: slides from GAC-PSWG presentation by representatives of the FTC and FBI at ICANN 53
Note the "potential areas of interest"--
  • WHOIS
  • Contract Compliance
  • Implementation of new gTLDs
  • Internationalized Domain Names
Domain Mondo has a list of several more "potential areas of interest" to suggest to the FBI, FTC, and PSWG, including the serious problem of domain name theft. Now all domain name registrants, globally, have a resource for dealing with registrant issues involving registrars, registry operators, ICANN and others. As Domain Mondo noted some time ago: For Domain Name Registrants, ICANN Is Useless. So Domain Mondo says to the FTC, FBI, and PSWG: Welcome, glad you now have a seat at the ICANN table!

For legitimate domain name registrants, this is all very good news. Domain name registrants have had little, if any, representation within ICANN (e.g., there is no Registrant Stakeholder Group). For others, both within and without ICANN, this may not be good news. For example: who receives the "proceeds" from domain name registrations used by cyber criminals, cybersquatters, child pornographers, and other bad actors? Answer: Registries, Registrars, and ICANN itself. Notable Quote: "ICANN has a conflict of interest in pursuing the global public interest since its own financial interests are at odds with keeping costs down for Internet users and businesses." 

What "costs" are we talking about? Not only the costs of domain name registrations, but the increased friction costs of doing business online which actually strangles "innovation," and other "costs" caused by ICANN programs and policies--having to engage in "defensive domain registrations" (e.g., brand gTLDs, new gTLDs, etc.), trademark registration defense costs--as well as the "costs" to society due to online drug-trafficking, child pornography, etc. ICANN has admitted it is incompetent to deal with illegal activity. Heck, it is even debatable whether, after 16 years, ICANN is even capable of running the DNS competently, which is supposed to be its core competency.
"We can enforce the terms and conditions of our contracts with registries [and registrars], but it is the responsibility of governmental regulatory agencies, law enforcement and the courts to police illegal activity."--Allen Grogan, Chief Contract Compliance Officer, ICANN (emphasis added)
Put another way, in the U.S., if you are a landlord and knowingly allow tenants or others to use your property to engage in unlawful, criminal activity such as illegal drug-trafficking, you can lose your property to government seizure (forfeiture). For years, the Internet was known as a lawless Wild West--it was only a matter of time before the Sheriff showed up.

ICANN's primary jurisdiction pre- and post-transition is the United States, and the presence of the PSWG, FTC, and FBI, "at the ICANN table" has the potential of having a profound effect upon both ICANN processes and outcomes, which will benefit domain name registrants who have never had an equal voice within ICANN, as compared to the special vested-interest stakeholders (e.g., new gTLDs lobbyists). Domain Name Registrants worldwide can now contact the FTC or FBI directly with any complaint that involves US-based ICANN, its directors, officers, staff, or contractors, incuding registry operators and registrars. This is the kind of ICANN accountability which the CCWG-Accountability work, though commendable, is completely missing.

For those outside the US and not familiar with the FTC or FBI, here is a brief description of each:

Federal Trade Commission (FTC): domain name - ftc.gov
The FTC is a bipartisan federal agency with a unique dual mission to protect consumers and promote competition. The FTC protects consumers by stopping unfair, deceptive or fraudulent practices in the marketplace. "We conduct investigations, sue companies and people that violate the law, develop rules to ensure a vibrant marketplace, and educate consumers and businesses about their rights and responsibilities. We collect complaints about hundreds of issues from data security and deceptive advertising to identity theft and Do Not Call violations, and make them available to law enforcement agencies worldwide for follow-up. Our experienced and motivated staff uses 21st century tools to anticipate – and respond to – changes in the marketplace." Promoting Competition: "Competition in America is about price, selection, and service. It benefits consumers by keeping prices low and the quality and choice of goods and services high. By enforcing antitrust laws, the FTC helps ensure that our markets are open and free. The FTC will challenge anticompetitive mergers and business practices that could harm consumers by resulting in higher prices, lower quality, fewer choices, or reduced rates of innovation. We monitor business practices, review potential mergers, and challenge them when appropriate to ensure that the market works according to consumer preferences, not illegal practices." (source: FTC)

Note comments of FTC Chairwoman Edith Ramirez in her letter to ICANN in the dotSUCKS case:
Excerpt from FTC Chairwoman Edith Ramirez letter to ICANN in the dotSUCKS case

Federal Bureau of Investigation (FBI): domain name - fbi.gov
The Federal Bureau of Investigation (FBI) is the domestic intelligence and security service of the United States, which simultaneously serves as the nation's prime Federal law enforcement organization. Operating under the jurisdiction of the U.S. Department of Justice, the FBI has jurisdiction over violations of more than 200 categories of federal crimes. (source: Wikipedia)
Internationally, the FBI is probably most recently known for its involvement in the 2015 FIFA corruption case: "Near the end of May 2015, fourteen people were indicted in connection with an investigation by the United States Federal Bureau of Investigation (FBI) and the Internal Revenue Service Criminal Investigation Division (IRS-CI) into wire fraud, racketeering, and money laundering." (source: Wikipedia)

Also note the position of the US Department of Justice in the Silk Road case:
"... Ulbricht claims to be, in essence, untouchable. He was merely the “operator of a website,” he asserts, and cannot be held responsible for the conduct of its users. He himself was not directly involved in buying or selling drugs or malicious software, he argues, and therefore he cannot be charged under the narcotics and computer hacking laws. Further, Ulbricht contends, the money laundering laws have not kept pace with the times and do not cover transactions with Bitcoins, the exclusive form of payment on Silk Road, so he cannot be charged with money laundering either. He moves to dismiss the Indictment against him in its entirety. The arm of the law, however, is far longer than Ulbricht imagines it to be. In particular, Ulbricht misunderstands the law of conspiracy, which extends to anyone who enters into a joint venture with others to commit crime – regardless of whether their role in the crime is large or small, direct or indirect. The conspiracy laws easily apply to Ulbricht, who played a central, organizing role in running Silk Road and in facilitating the countless illicit sales executed through the site. And it hardly matters that Ulbricht’s conduct took place on the Internet. The federal criminal laws are expansive and adaptable, and readily reach his conduct online to the same extent as if it occurred on the street ..." (source: United States of America v. Ross Ulbricht, a/k/a “Dread Pirate Roberts,” a/k/a “DPR,” a/k/a “Silk Road)(emphasis added)
For related posts on Domain Mondo:

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