News Review | GDPR, EPDP, and ICANN WHOIS Data Liability

Domain Mondo's weekly internet domain news review (NR 2018-10-07 with analysis and opinion: Features •  1) GDPR, EPDP, and ICANN WHOIS Data Liability,  2)Other ICANN news: KSK Roll Oct 11, and more, 3) a. Malicious Domains, b..COM Domainers re: Verisign, NTIA & ICANN, c. WIPO Workshop, and more, 4) ICYMI Internet Domain News, 5) Most Read.

1) GDPR, EPDP, and ICANN WHOIS Data Liability

ICANN EPDP Meetings this coming week Tuesday Oct 9, and Wednesday Oct 10 (small group), and Thursday Oct 11: 2 meetings, see below. Non-members of the EPDP working group can follow these meetings via Adobe Connect, or audio cast via browser or application. Links to all EPDP meetings' transcripts and recordings are on the GNSO calendar. Other EPDP links: wiki, mail list, action items, Temp Spec, EPDP Charter (pdf), GNSO's EPDP page and updates.

Recording, Attendance & AC chat (Editor's note: the correct Adobe Connect replay link) for the EPDP call to discuss Independent legal counsel to assist the EPDP working group held on Wednesday, 10 October 2018 at 22:00 UTC. Chat transcript (pdf).

Thursday Oct 11 EPDP small group (agenda, links to chat transcript, Adobe Connect replay, MP3), 17:00 UTC (1pm EDT). Natural person vs legal entity 11 Oct 2018 (pdf).

Thursday Oct 11 EPDP Meeting (agenda, links to chat transcript, Adobe Connect replay, MP3), 13:00 UTC (9am EDT). Purpose B workbook (pdf); Meeting Transcript (pdf).

Wednesday Oct 10 small group (agenda, links to chat, Adobe replay, MP3), Small Team #3 relevant input (pdf), upd Background Info (pdf). This Small Group's working document:

Tuesday Oct 9 EPDP meeting wiki link (agenda), chat transcript (pdf), MP3, Adobe Connect replay,  Lawful Basis Memo (pdf); data elements workbook (including Purpose A), work products (pdfs) in relation to agenda item three: Data Elements Matrix, Purpose A,  Purpose M, Purpose N.  The meeting's focus was on Purpose A, leaving no time for Purposes M & N which also might involve transfer of Registrant data from Registrar to the Registry.

Editor's note: the ICANN EPDP working group grinds on under the inept 'leadership' of former ICANN 'Chief Strategy Officer' Kurt Pritz (appointed EPDP Chair by the GNSO Council), who has apparently been supplanted by CBI.org facilitators Gina Bartlett and David Plumb, when available, in leading EPDP meeting discussions:

Kurt Pritz, EPDP Chair: "I want to welcome David Plumb [CBI.org facilitator] who's on the call who will lead those discussion items. So I'm pretty darn pleased with that."  EPDP Oct 4 meeting, p.3.

Highlights from EPDP meetings last week (ending Oct 5):

Emily Taylor (RrSG): "Just to support Lindsay Hamilton-Reid’s remarks, in practice the technical contacts are often are all almost always duplicates of other contacts. If there’s a technical issue with a domain name there are two possible courses. One is contact the registrant and one is contract the registrar. Both of those details are in separate fields .... my own personal view is that these ancillary fields admin technical billing are all sort of relic from the old Whois format which is, you know, desired way back when in the 80s before there was really a hard concept of a domain name registrant having rights and responsibilities and before there was ever such a thing as a registrar. The market has moved on considerably and the Whois fields have not kept up to date. It’s way past the time where we have a good look at these fields and ... get rid of [some of] them entirely." [EPDP Oct 2 meeting, p. 38] 

Editor's note: My view is the same as Ms. Taylor's re: admin and technical contacts in the WHOIS directory. That kind of information, like billing contacts and credit card information, if needed at all, should only be held by and between the registrar and registrant. The WHOIS directory is like the Registrar's Office of real estate deeds showing who is the legal owner, or in the case of domain names, the domain name holder (registrant) of record. When you buy a car, the government agency that issues auto license plates, doesn't ask you who your mechanic (or 'technical contact') is, does it? My suggestion for revised WHOIS registrant data fields is here (pdf).

Stephanie Perrin (NCSG): "... The current educational resources/registrants rights and responsibilities package has been neglected for years ... Registrars should have procedures in place to inform registrants of their constitutional and charter rights, as well as their rights under GDPR ... note that the registrars will be held accountable for how well informed the individual [registrant] is. If they give away their rights because they were not well informed, it will be the registrars fault ... Caution is required here ... if civil society were to sue under the GDPR, in my view (remember, I am not even a lawyer let alone a litigator) the strategy would be to go for ICANN as data controller  responsible for the policy, and the registrar as data controller for the client relationship data." [EPDP Oct 3 chat, p.3]

Thomas Rickert (ISPCP): "Regarding a direct contract between ICANN and registrants: We are to review to the TS [temporary specification] and not to recreate a completely new gTLD world." Emily Taylor (RrSG): "Well said @Thomas." [EPDP Oct 4 chat, p. 3]

Stephanie Perrin (NCSG): "It is very very clear that the purpose of the GDPR is to address the imbalance of power in the data relationships of the Information Society." [EPDP Oct 4 chat, p.7]

 Questions for ICANN Org from EPDP meeting Oct 4, 2018:

1. ICANN org should have a general retention policy. As part of its GDPR-compliant data processing regime. If so, can this be provided to the EPDP Team?
2. We have spent most of this meeting exploring the role of compliance at ICANN, in order to support a proposal that ICANN has an implicit contract with the registrant and that therefore 6 1 b applies as a grounds for processing.  This would also facilitate ICANN operating a UAM on behalf of those who want the data.  It might also explain Goran’s [Marby, ICANN CEO] initiative in seeking some kind of recognition by EU authorities that ICANN has a kind of quasi-regulator status, as the authority vested with the responsibility to manage the DNS.  Given that all of this is outside the current configuration of ICANN as data controller, which would be more clear had we done a DPIA and had we adequate data maps to work with….can we either get back to our Charter questions that we were mandated to address by the GNSO, or get a full explanation of what is going on and why we continue to be focused on the access question? [emphasis and links added]
3. Is there a date limit for ICANN accepting a complaint or request to audit regarding a registration that has been deleted? If not, what is the case of the longest period of a deleted registration that was accepted and acted upon?

Request for independent legal counsel to assist the EPDP from  RySG (Registries Stakeholder Group), RrSG (Registrar Stakeholder Group), and NCSG (Non-Commercial Stakeholder Group)--Letter October 5, 2018 (pdf).

26 Sep 2018 Letter from Registrar Stakeholder Group (RrSG) to ICANN CEO Göran Marby, ICANN Board Chairman Cherine Chalaby, and ICANN DPO Daniel Halloran (pdf) published by ICANN 4 Oct 2018, embed below (Editor's note: read this carefully):

More info on Oct 2-5 EPDP meetings on last week's News Review.

Definition of "train wreck" -- a chaotic or disastrous situation that holds a peculiar fascination for observers.

Note also:

• ICANN Webinar (one hour) data protection/privacy (GDPR) update now scheduled for Oct 8, 2018, 15:00 UTC (11am EDT) via Adobe Connect. Dial-in info, questions, etc., here. 

UPDATE: Question asked: :Why hasn’t a Data Protection Impact Assessment (DPIA) been carried out to clarify data flows and ICANN’s relationship with the data subject in light of its acknowledged role as a joint controller and Article 35 of the GDPR?
RESPONSE: This question was also asked during the Data Protection/Privacy Update Webinar hosted by ICANN org on 8 October 2018. John Jeffrey, ICANN’s General Counsel and Secretary provided the following response:

“This is something that has been considered since the very beginning. One of the issues is when to do that in a way that is most timely and useful and how to do that. We continue to evolve the thinking of how the interpretation of GDPR applies to WHOIS. We have a number of questions which have been addressed directly to the DPAs and the EDPB and we’ve have an ongoing discussion with the EC about how to interpret the GDPR. We believe that those are a better format at this point than doing the assessment, but we continue to evaluate whether that assessment would be the right thing to do and when.”

ICANN 8 Oct 2018 Webinar replay (Adobe Connect & audio) and presentation (slides) here.

• Pre-ICANN63 Policy Open House webcast: Thursday, 11 October 2018, 10:00 UTC and 19:00 UTC. The open house will run in English with simultaneous Spanish interpretation. The presentation materials will be translated into Spanish, and posted following the open house with the recordings of the sessions here. Register via this form by 8 Oct 2018. More info here. ICANN63 Full Schedule.

2) Other ICANN News

a. KSK Roll October 11--the change or "roll" of the cryptographic key for the internet DNS root on 11 October 2018. "It will mark the first time the key has been changed since it was first put in use in 2010"--ICANN.org. More information here and here (pdf).

b. ICANN Board Report September 2018 (pdf)

"... we held an Executive Team retreat in Visby, Sweden from 23-26 July."--Goran Marby, ICANN President & CEO (p. 3). Editor's note: No disclosure of the itemized and total costs paid by ICANN org for this annual extravagance.

c. If you think ICANN, notwithstanding its incompetence, conflicts of interest, and/or corruption, has a viable future, you may be interested in the ICANN Board and organization webinar on 9 October 2018 at 14:00 UTC (10am EDT) on ICANN strategic planning. More info here.

d. End of the Line: "Resolved (2018.10.03.02), the Board directs the President and CEO, or his designee(s), that the pending application for .HALAL and the pending application for .ISLAM not proceed ... Resolved (2018.10.03.01), the Board adopts the portion of the IRP Panel's recommendation that the application for .PERSIANGULF submitted in the current new gTLD round not proceed and directs the President and CEO, or his designee(s), to take all steps necessary to implement this decision."--Approved Board Resolutions | Special Meeting of the ICANN Board 03 Oct 2018.

e.  ICANN's new gTLD .BRAND Extortion Racket losing more: .epost and .bond. terminating.

3) Names, Domains & Trademarks

a. Malicious Domains: "using a cooling-off period for domain names can help catch those registered by known bad actors"--DarkReading.com.

b. .COM Domainers re: Verisign, NTIA & ICANN--StopThePriceIncreaseOf.com.

c. WIPO Advanced Workshop on Domain Name Dispute Resolution: Update on Precedent and Practice, Geneva, Switzerland, Tuesday and Wednesday, October 9 and 10, 2018.

d. Domainers Lament "Too many domains, no buyers"--Everyone Trying to Sell Their Portfolios but NOBODY is Buying Them. Now What? | ricksblog.com.

e. Alphabet’s new domain name tool could limit malware, censorship, and spying--internet domain lookups are typically unencrypted, meaning hackers and governments can manipulate them to block certain sites or serve up malware--FastCompany.com.

4) ICYMI Internet Domain News 

UPDATE on the UN Secretary-General's High-level Panel on Digital Cooperation @UNSGdigicoop:

• Censorship could be just as common in an open internet as a closed one--qz.com.
• China: Why Would Google’s Ex-CEO Predict a Separate Chinese Internet?--nymag.com
• Zambia’s social media tax isn’t really about social media or freedom of speech--qz.com
• India: Reactions to the Aadhaar Judgement--internetfreedom.in; See also indianexpress.com: Surveillance after the Aadhaar judgment: What Internet freedom?
• Internet: Inside the Harvard research hub chronicling our relationship with the internet--siliconrepublic.com.

5) Most Read Posts this past week on DomainMondo.com: 

1. News Review 1) ICANN Org vs EPDP Access? 2) New gTLDs Next Round?

2. Tech Review: Digital Outdoor Advertising Growth Due To GDPR? (video)

3. Iridium $IRDM + Amazon $AMZN AWS for IoT Internet SAT Network

4. Tech Review 1) Crypto & Crime, Innovation, Regulation, 2) $Esports (video)

-- John Poole, Editor • Domain Mondo 

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DISCLAIMER

News Review: ICANN Multistakeholder vs Multilateral Internet Governance

Domain Mondo's weekly review of internet domain news:

Features • 1. ICANN Multistakeholder vs Multilateral Internet Governance; 2. Why ICANN Multistakeholderism Is Failing; 3. Private Agreements and Antitrust Liability; 4. How ICANN threatens DNS Security & Stability; 5. Phishers shifting to ICANN's new gTLDs; 6. Bogus DMCA Take Down Notices; 7. TMCH Revised Report; 8. Internet Freedom Report: Malta, Cameroon, China; 9. A 'Digital Geneva Convention'; 10. Trump's Trademark in China; 11. Outlook email for your domain name; 12. SHA1 collision; 13. Hacked ICANN data still sells; 14. ICANN events May 9-15 in Madrid; 15. ICANN Public Comment Periods closing in March; 16. Most popular posts this past week.

1. ICANN Multistakeholder vs Multilateral Internet Governance

"I think if we get rid of that [IANA functions] contract we will be free of the pressures"--ICANN President and CEO Fadi Chehade, February 10, 2015.

February 2017: "... The reformed [ICANN] multistakeholder internet governance approach faces significant challenges ... If the multistakeholder model is seen as ineffective in addressing the vulnerabilities that enable cybercrime, or being completely peripheral to the issue, developing economies could question its legitimacy and seek answers in the multilateral system .... "There are also worries that ICANN, the operator of the IANA functions, will abuse its authority and ignore the interests of internet users. In the past, ICANN has been accused of ignoring the views of governments, prioritizing private sector interests, and mismanaging its finances. ICANN recently implemented enhancements to address these and similar concerns. Nevertheless, ensuring that ICANN remains accountable will be critical to demonstrating that the multistakeholder approach works. It will also act as a bulwark against Russian and Chinese efforts at greater intergovernmental control over the internet."--Maintaining U.S. Leadership on Internet Governance | Council on Foreign Relations | cfr.org (emphasis added).

2. Why ICANN multistakeholderism is failing--"industry self-regulation often fails to protect the public"--"lack of transparency, accountability, participation, and representation"--

source: Presentation on DNS and Content Regulation | Electronic Frontier Foundation

source: Presentation on DNS and Content Regulation | Electronic Frontier Foundation

Note re: Public Interest Registry's arbitration process--Systemic Copyright Infringement Alternative Dispute Resolution Policy (SCDRP) | Public Interest Registry | pir.org February 23, 2017--"Given certain concerns that have been recently raised in the public domain, Public Interest Registry is pausing its SCDRP development process to reflect on those concerns and consider forward steps. We will hold [i.e., stop] any further development of the SCDRP until further notice." (emphasis added)

UPDATE: Shadow Regulation Withers In The Sunlight | Electronic Frontier Foundation | eff.org: "... It’s not surprising that a plan developed in secret, without input from Internet users, would disregard users’ rights. As we’ve explained, truly “healthy” Internet governance requires inclusion, balance, and accountability, all of which were absent here. Public Interest Registry did the right thing by hitting the brakes on this proposal. Its brief announcement today acknowledges the importance of good policy-development processes ..."

ICANN's Commercial and Business Users Constituency (BC), Intellectual Property Constituency (IPC), ISPs and Connectivity Providers Constituency (ISPCP) complain about the NonCommercial Users Constituency (NCUC.org) session at ICANN57 "DNS and Content Regulation" (one leading participant was Electronic Frontier Foundation, EFF.org)--

15 Feb 2017 Letter from BC, IPC and ISPCP (pdf) to Göran Marby, Steve Crocker, and ICANN Board of Directors, published by ICANN on 21 February 2017:

"... for the Hyderabad meeting, a single sponsor group proposed a HIT (High Interest Topic) session on DNS and Content Regulation. Initially, the sponsoring group was allowed to select panelists and designate the moderator, who was also part of the sponsoring organization. Through persistence by other stakeholders, panel participation was broadened considerably. Still, during the HIT session, the sponsoring organization opened with a presentation of their position. In our view, this did not meet the level of broad participation of the ICANN community to warrant a high-interest session ..."

Response from Göran Marby, ICANN President & CEO (embedded below, highlighting added)--or how ICANN subtly shuts down free speech, participation, and representation that conflicts with powerful private profit-seeking corporate interests such as represented by BC, IPC, and ISPCP, and the other unelected non-governmental special interests that dominate ICANN--

3.  Private Agreements and Antitrust Liability--Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 "(a)(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful .... (4) (B) All remedies available to the Commission with respect to unfair and deceptive acts or practices shall be available for acts and practices described in this paragraph, including restitution to domestic or foreign victims." (emphasis added)--See Opinion and Order of the Federal Trade Commission (pdf) In the Matter of 1-800 Contacts, Inc., Docket No. 9372 (keyword advertising bidding agreements):

",,, Given that the Complaint alleges liability based only on private agreements that do not constitute government petitioning, 1-800 Contacts’ Third Defense fails .... Because the Complaint alleges that 1-800 Contacts violated Section 5 solely by entering into private bidding agreements, we hold that the Noerr-Pennington doctrine does not apply and 1-800 Contacts’ Third Defense fails as a matter of law. Similarly, because Complaint Counsel need not prove 1-800 Contacts’ lawsuits to be objectively and subjectively unreasonable to establish a Section 5 violation, 1-800 Contacts’ Second Defense also fails. We therefore grant Complaint Counsel’s motion." (emphasis added)

4.  How ICANN threatens Domain Name System Security & Stability:

"In 2015, ICANN's compliance department caused financial harm to a domain name registrant because of a minor, perceived inaccuracy in their domain name's WHOIS records. In this instance, the registrant had a mailing address in Virginia and a phone number with a Tennessee area code. While both details were valid, and the registrant was contactable, a "violent criminal” filed a complaint with ICANN alleging that the details were inaccurate. The complaint was accepted by ICANN and passed along to the domain name registrar. The registrar, fearing a non-compliance notice from ICANN, suspended the domain name without performing any investigation into the claim, resulting in the registrant losing access to their business email account and website."--source infra--

At the NCPH Intersessional, [ICANN] Compliance Concerns Take Centre Stage | circleid.com Feb 23, 2017: ".... as things stand at present, if a domain name can be repossessed from a registrant for any reason at all, without any due process being followed, and in direct violation of Article 1 of the organisation's bylaws, it might well be ICANN that is posing a threat to the security and stability of the Domain Name System" (emphasis added).  See also ICANN Compliance Lends a Hand to a Violent Criminal While Trashing a Legitimate Business | circleid.com.

Editor's note: never forget that among the real core values of ICANN, as established during the Fadi Chehade-Akram Atallah regime (2012-2016), are dishonesty, incompetence, and cronyism.

5. New study reveals phishers are shifting their sights to ICANN's new gTLDs and the cloud: "A study by cybersecurity firm PhishLabs indicates that the volume of phishing attacks grew by almost one-third last year, with cloud storage brands set to overtake financial services as the top targets. Researchers also found that phishing perpetrators are increasingly turning to new gTLDs to dupe internet users."--WorldTrademarkReview.com (emphasis and link added).

6. Bogus DMCA Take Down Notices: in a comment to the U.S. Copyright Office (pdf), Google reports that 99.95% of URLs it was asked to take down last month didn't even exist in its search indexes. "For example, in January 2017, the most prolific submitter submitted notices that Google honored for 16,457,433 URLs. But on further inspection, 16,450,129 (99.97%) of those URLs were not in our search index in the first place."

7. Trademark Clearinghouse Revised Report | ICANN.org: On 23 February 2017, ICANN published the Revised Report of the Independent Review of the Trademark Clearinghouse (pdf): "...  we find that although trademark holders value access to the Sunrise period and many submit proof of use to become eligible for Sunrise registrations, few trademark holders make [new gTLD] Sunrise registrations. This could be due in part to the expense of Sunrise registrations or because other protections of the TMCH services reduce the need for trademark holders to utilize Sunrise registrations." (emphasis added)

8. Internet Freedom Report: Malta, Cameroon, China:

• Maltese protest proposed internet news laws: Several thousands people took to the streets of the capital of Malta on Sunday to protest against a new bill that will force Internet news sites to register with the government.--Reuters.com
• Cameroon must urgently free the internet in Anglophone regions - UN expert | AfricaNews.com: "Cameroon should immediately reverse the ‘‘appalling violation of their (citizen’s) right to freedom of expression,” in its Anglophone regions by restoring internet access, a United Nations expert has said."
• China Ramps Up Control of Domain Names, Adds New Layer to Great Firewall | rfa.org: "The draft regulations, which were first released for public consultation in March 2016, would require any websites operating in China to register with a Chinese domain name, which is subject to state control and can be used to shut down entire websites within the country-level .cn top-level domain."

Also note: Internet Freedom Festival | 6 – 10 March 2017: The Global Unconference of the Internet Freedom Communities, March 6-10, 2017, Valencia, Spain.

9.  A 'Digital Geneva Convention': "... Just as the Fourth Geneva Convention has long protected civilians in times of war, we now need a Digital Geneva Convention that will commit governments to protecting civilians from nation-state attacks in times of peace. And just as the Fourth Geneva Convention recognized that the protection of civilians required the active involvement of the Red Cross, protection against nation-state cyberattacks requires the active assistance of technology companies. The tech sector plays a unique role as the internet’s first responders, and we therefore should commit ourselves to collective action that will make the internet a safer place, affirming a role as a neutral Digital Switzerland that assists customers everywhere and retains the world’s trust ..."--Brad Smith, Microsoft President and Chief Legal Officer, blogs.microsoft.com. See also Bruce Schneier: It's time for internet-of-things regulation | searchsecurity.techtarget.com.

10.  Names, Domains, Trademarks: President Trump wins trademark rights for his name in China | worldipreview.com.

11.  Outlook email for your domain name:

• Hands-On with Outlook.com Premium | Thurrott.com: "if you sign up now, “your subscriptions will auto-renew annually at $19.95 (Outlook.com Premium) .... This is an affordable option*, and it’s a nice way for a family to get a custom domain and not be stuck with an outlook.com or hotmail.com address."
• More info:  https://premium.outlook.com/#/Offer  "you can create personalized addresses for up to 5 people and sync everything to your existing Outlook.com mailbox."
• See also: "the $20 offer is still available, so if you’re looking to save some money, you might want to move quickly: This offer expires March 31, 2017. Note that you still need to pay for your custom domain. You can do that via an outside registrar or through Microsoft"--Thurrott.com

12. Announcing the first SHA1 collision | security.googleblog.com: "For the tech community, our findings emphasize the necessity of sunsetting SHA-1 usage. Google has advocated the deprecation of SHA-1 for many years, particularly when it comes to signing TLS certificates."

13. Hacked ICANN data still sells for hundreds of dollars years after breach | cyberscoop.com: "Three years after hackers used a spearphishing attack to successfully gain access to internal data at the Internet Corporation for Assigned Names and Numbers (ICANN), the data is still being passed around and sold on black markets for $300, complete with claims that it’s never been leaked before."

14. ICANN events May 9-15 in Madrid: 1) ICANN GDD Industry Summit May 9-11, 2017; 2) 6th Registration Operations Workshop May 12, 2017; 3) ICANN DNS Symposium May 13, 2017; 4) OARC 26 May 14-15, 2017. Read more at InternetSociety.org.

15. ICANN Public Comment Periods that close in March, 2017:

• GNSO Initial Report on the IGO-INGO Access to Curative Rights Protection Mechanisms Policy Development Process: Close Date 1 Mar 2017 23:59 UTC
• Reference Japanese Label Generation Rules (LGR) for the Second Level: Close Date 8 Mar 2017 23:59 UTC
• Release of Country and Territory Names within the .IKANO, .SAXO, .SCOR, .SANDVIK, .WALTER, .SANDVIKCOROMANT, .VISTA, .VISTAPRINT, .BARCLAYS, .BARCLAYCARD and .HERMES TLDs:  Close Date 10 Mar 2017 23:59 UTC
• At-Large Review: Draft Report:  Close Date 24 Mar 2017 23:59 UTC

16.  Most popular posts (# of pageviews Sun-Sat) this past week on DomainMondo.com:

1. News Review: China Cyber Sovereignty vs ICANN Multistakeholderism
2. Three Business Lessons You Can Learn From Airbnb (video)
3. Splunk $SPLK Helping Companies Make Sense of Machine Data (video)
4. TechReview | Zuck's Facebook Letter and the Snapchat $SNAP IPO (video)

-- John Poole, Editor, Domain Mondo 

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DISCLAIMER

Tweets and Post-hearing Notes re: Cruz Hearing on IANA Transition

For background see on Domain Mondo: 

• IANA Transition Hearing: Implications of Ending US Oversight of the Internet;
• U.S. Senator Ted Cruz vs ICANN and IANA Transition: Veni, Vidi, Vici?

Selected tweets from the twittersphere and commentary by Domain Mondo:

#IANAsteward @SenTedCruz: #ICANN’s past CEO, @Fchehade, made China a central focus for the org.

— Samantha Dickinson (@sgdickinson) September 14, 2016

At the time obvious to many of us as a strategic blunder made by the CEO while #ICANN board was missing in action https://t.co/LmofOGtOs1

— Jay Daley (@jay_daley) September 14, 2016

And that same #ICANN Board paid him a performance bonus on the way out the door!!! https://t.co/VOy3edIgX5 https://t.co/O78Fnea7R6

— Eye On ICANN (@EyeOnICANN) September 14, 2016

Dysfunctional ICANN leadership (e.g., former CEO and Board of Directors) together with lack of transparency are among the core reasons ICANN is not trusted by some members of the global multistakeholder community.

#IANASteward @SenTedCruz: it’s troubling we heard indisputable evidence today that transition would increase power of all govts except USA.

— Samantha Dickinson (@sgdickinson) September 14, 2016

Yes, in the IANA Transition plan, governments get a limited increase in power, but post-transition all governments (including U.S.) are equal inside ICANN, i.e., it takes just 1 government to prevent GAC consensus advice. But, by virtue of ICANN's corporate domicile (California) and ICANN's election as an IRC §501(c)(3) non-profit, California and U.S. law will have precedence in most ICANN legal disputes (see, e.g., Domain Mondo's ICANN Litigation Status Update).

#IANASteward Strickling, @NTIAgov: #ICANN has never had anti-trust immunity & won’t have it going forward.

— Samantha Dickinson (@sgdickinson) September 14, 2016

Potential liability under U.S. antitrust law may be one of the most important, and powerful, accountability measures on post-transition ICANN.

#IANASteward @icann_president to @ChrisCoons: yes, the transition is aimed at preventing competing systems to current #ICANN & root system.

— Samantha Dickinson (@sgdickinson) September 14, 2016

Preventing a "competing" internet root may be the most compelling reason to not delay the IANA transition despite misgivings about ICANN or the IANA transition plan.


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DISCLAIMER

New gTLD Domain Names, Defects, ICANN Liability, FTC Complaints

"..."Universal acceptance" (UA) has become an urgent top priority for new gTLD adherents as well as those concerned about the performance of new domains for consumers and businesses. Simply put, many new gTLD addresses don't resolve in web browsers or work with email systems. This is exactly the type of technical issue that is supposed to be ICANN's core competence, so why is it only now being grappled with given the many years of planning in the run-up to new gTLDs becoming available? This is hardly a new issue. According to the CTO for Afilias, the challenge was first identified by ICANN's Security and Stability Advisory Committee (SSAC) in 2003, with multiple recommendations made to address it. Yet, he observes,"That was over a decade ago! "..."--Philip S. Corwin - ICANN.WTF?...

As Phil Corwin pointed out above, ICANN knew that new gTLD domain names would have universal acceptance "defects"--i.e., "failing to work as expected on the Internet" and/or "break stuff" or even compromise the stability and security of the Internet--that must be why ICANN included an exculpatory (escape of liability) clause a/k/a weasel clause, in its Registry Agreements with new gTLD domain name registry operators:

Registry Agreement between ICANN and new gTLD Registry operators: "....1.2 Technical Feasibility of String. While ICANN has encouraged and will continue to encourage universal acceptance of all top-level domain strings across the Internet, certain top-level domain strings may encounter difficulty in acceptance by ISPs and webhosters and/or validation by web applications. Registry Operator shall be responsible for ensuring to its satisfaction the technical feasibility of the TLD string prior to entering into this Agreement...." (emphasis added)

But what about the gullible "suckers" (not a reference to dotSUCKS and no pun intended) who "buy" or register these new gTLD domain names, and then discover their new gTLD domain names "failing to work as expected on the Internet" or "break stuff"? Where was ICANN when it came to protecting consumers--domain name registrants, users, businesses-- and the public interest? Or was ICANN just out to make money for itself to expand its offices and pay lavish amounts to ICANN officers, staff, directors, and/or "line the pockets" of its multitudes of contractors and self-serving, self-interested stakeholders?

How big a problem is universal acceptance with new gTLDs (new generic top-level domains)? Look at the schedule for the ICANN 53 meeting later this month: a full one-day Universal Acceptance workshop plus another separate Universal Acceptance session the next day. No prior ICANN meeting has devoted so much time to the Universal Acceptance problem. Better late than never!

The victims or "injured parties" here include domain name registrants who have been deceived by all the hype from ICANN or its new gTLD registry operators or new gTLD domain name registrars, without benefit of any corresponding prominent warnings or disclosures about the universal acceptance problems with new gTLD domain names.

Domain Name Registrants' Rights: "... 3.You shall not be subject to false advertising or deceptive practices by your Registrar or though [sic] any proxy or privacy services made available by your Registrar. This includes deceptive notices, hidden fees, and any practices that are illegal under the consumer protection law of your residence...." (emphasis added)

Could this be yet another ICANN matter for the U.S. Federal Trade Commission (FTC) to investigate?

What We Do | Federal Trade Commission: "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 ... 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." (emphasis added)

For more information or to file a complaint with the Federal Trade Commission go to https://www.ftccomplaintassistant.gov/Information or www.ftc.gov/complaint and watch the video below, or call Toll-free: 1-877-FTC-HELP (1-877-382-4357).


If you cannot view the FTC video above, view the video here.

Or perhaps the California State Attorney General or all the State Attorney Generals in the U.S. might be interested in investigating this further?

For further information:

• Why New gTLD Domain Names Fail To Work Across the Internet
• ICANN 52, Universal Acceptance, New gTLD Domain Names "break stuff"
• ICANN Admits New gTLDs Compromise Internet Stability and Security
• ICANN, New gTLD Domain Names, Universal Acceptance Another #FAIL
• More Problems Crop Up With Universal Acceptance of Top Level Domains
• Universal Acceptance - Resources - ICANN
• FTC: How to Make Effective Disclosures in Digital Advertising (pdf)

#ICANN #accountability

Caveat Emptor! 


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