ICANN, Public Interest, New gTLDs Registry Operator Code of Conduct

ICANN essentially "caved" to new gTLDs lobbyists (a/k/a "ICANN stakeholders") and failed to protect the public interest, including, but not limited to, domain name registrants, in its "New gTLD Registry Operator Code of Conduct" which is found in "Specification 9" of the Base Registry Agreement (Specification 9 is at pages 80-81)--relevant  portions below:

SPECIFICATION 9
REGISTRY OPERATOR CODE OF CONDUCT

1. In connection with the operation of the registry for the TLD, Registry Operator will not, and will not allow any parent, subsidiary, Affiliate, subcontractor or other related entity, to the extent such party is engaged in the provision of Registry Services with respect to the TLD (each, a “Registry Related Party”), to: 

a. directly or indirectly show any preference or provide any special consideration to any registrar with respect to operational access to registry systems and related registry services, unless comparable opportunities to qualify for such preferences or considerations are made available to all registrars on substantially similar terms and subject to substantially similar conditions;

b. register domain names in its own right, except for names registered through an ICANN accredited registrar; provided, however, that Registry Operator may (a) reserve names from registration pursuant to Section 2.6 of the Agreement and (b) may withhold from registration or allocate to Registry Operator up to one hundred (100) names pursuant to Section 3.2 of Specification 5;

c. register names in the TLD or sub-domains of the TLD based upon proprietary access to information about searches or resolution requests by consumers for domain names not yet registered (commonly known as, “front-running”); or

d. allow any Affiliated registrar to disclose Personal Data about registrants to Registry Operator or any Registry Related Party, except as reasonably necessary for the management and operations of the TLD, unless all unrelated third parties (including other registry operators) are given equivalent access to such user data on substantially similar terms and subject to substantially similar conditions.

2. If Registry Operator or a Registry Related Party also operates as a provider of registrar or registrar-reseller services, Registry Operator will, or will cause such Registry Related Party to, ensure that such services are offered through a legal entity separate from Registry Operator, and maintain separate books of accounts with respect to its registrar or registrar-reseller operations. 
(source: http://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-09jan14-en.pdf: paragraphs 3-6, pp.80-81, contain nothing else of substance to registrants)

And what is the purported purpose of ICANN's Registry Operator Code of Conduct?

Code of Conduct FAQ [PDF, 456 KB]:
A3: The purpose of the Registry Operator Code of Conduct is to protect a TLD’s registrants.

A15: If a Registry Operator receives an exemption to the Code of Conduct, it is not contractually obligated to comply with the covenants in Sections 1, 2, and 3 of Specification 9 of the Registry Agreement. 

This must be some kind of "joke" if ICANN thinks new gTLD domain name registrants are "protected" by this "Code of Conduct"--no wonder ICANN's Global Domains Division, its President Akram Atallah, its General Counsel John Jeffrey, and its Contract Compliance Officer Allen Grogan, were all stumped and befuddled when confronted with claims of the IPC and ICANN's Business Constituency about abusive practices by an ICANN new gTLD Registry operator-- or what Akram Atallah refers to as an "ICANN customer." ICANN wrote to the FTC (US) and OCA (Canada) asking for help because ICANN forgot to put any teeth into its Code of Conduct! To date nothing has been done--so much for registrant protection!

The ICANN Global Domains Division must be the most inept, incompetent and/or dysfunctional part of ICANN. Akram Atallah is a crony of outgoing ICANN CEO Fadi Chehade and had no experience in the domain name industry before he was appointed ICANN's "President" (yes, ICANN decided to have 2 Presidents!) coincident with the creation of the "Global Domains Division" by empire builder Fadi Chehade--i.e., Akram got Fadi hired as ICANN CEO and President, and in turn, Fadi appointed his lifelong friend and crony Akram to the newly created "President" Global Domains Division which pays a total comp package (including benefits) approaching one million dollars (USD) per year.

The rampant conflicts of interest at play in the new gTLDs program within ICANN are well known, all of which are symptomatic of ICANN's problematic organizational culture. Fixing "organizational culture" is really hard, and impossible when the two top officers are part of the problem. As Peter Thiel once said, "You'd have to fire everybody and start over."

For Domain Name Registrants, ICANN is useless--better to just file a complaint directly with the Federal Trade Comission (FTC).

See also on Domain Mondo: ICANN, Domain Registry Operators, Monopoly, Antitrust, FTC Statement

ref: https://www.icann.org/news/blog/new-gtld-registry-operator-code-of-conduct


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dotSUCKS Dead End? Canada's "Big John" Rebuffs ICANN, Now What?

Akram Attalah, President of
ICANN's Global Domains Division

UPDATE: Close of the TMCH Sunrise Period for dotSUCKS domain names is June 19th at 00:01 UTC. General Availability* starts June 21st at 00:01 UTC -- source: dotSucks Domain Name Registry

*'[Registry] operators are free to make their domains available to the public; a period called General Availability.'--source: Dawn of a New Internet Era | ICANN New gTLDs by Akram Attalah, President of ICANN's Global Domains Division (see photo--photo source: ICANN) @AkramAtallah

For information on where to get dotSUCKS domain names starting June 21, 2015: https://www.registry.sucks/registrars
Industry Canada, Big Data, and John Knubley, Deputy Minister of Industry (Canada), who is simply known as "Big John" around Ottawa according to Domain Mondo's Canadian sources, discusses the government's adoption of big data and focus on promoting education in the academic disciplines of science, technology, engineering, and mathematics (STEM), in the video above, published April 17, 2014.

Canada's "Big John" Knubley is a busy man--photo above:
John Knubley shakes hands with Kathleen Merrigan USDA
[2012 USDA photo by Bob Nichols]

The brain trust at ICANN came up with the bright idea of trying to pass off the dotSUCKS controversy to the US Federal Trade Commission (FTC) and Canada's Office of Consumer Affairs (OCA). See: The dot SUCKS Conundrum: ICANN, FTC, OCA, New gTLD Domains. ICANN received a letter in response from Edith Ramirez, Chair of the FTC, who reminded ICANN it had ignored all the sound advice the FTC had given ICANN about the new gTLDs program, and then proceeded to rub salt into the wound by lecturing ICANN on how to protect consumers. See: Dot SUCKS: FTC Lectures ICANN On How To Protect Consumers

ICANN's last remaining hope was Canada-- 

Great #CoffeeandConversation with @industrycanada employees pic.twitter.com/iUqDmRTrkD

— John Knubley (@JohnKnubley) March 6, 2015

Whatever the ICANN brain trust was looking for from Canada's Office of Consurmer Affairs (OCA), Domain Mondo is pretty sure they didn't get it--below is the body of the letter that Canada's Deputy Minister of Industry, John Knubley, sent back to ICANN's General Counsel--Big John is obviously an experienced government minister who has mastered the fine bureaucratic art of "responding without responding" and wasn't about to endanger his career nor risk public embarrassment or humiliation by getting sucked into ICANN's dotSUCKS problems:

Above: Canada's "Big John" Knubley's Letter Responding to ICANN re: dotSUCKS

This appears to be a modified form letter sent in order to close the file and move on to more important matters--John is obviously a busy man and has more important things to attend to (see video, photo, tweet above, and tweet, video below).

Busy week ahead: heading to Intl Paris Air Show and then #BIO2015

— John Knubley (@JohnKnubley) June 12, 2015

What Now ICANN?

See also: Frank Schilling's Uniregistry Is An Investor in New gTLD dot SUCKS

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The dot SUCKS Conundrum: ICANN, FTC, OCA, New gTLD Domains

“… they say shipwrecked fellows’ll make a meal of friend as quick as they would of a total stranger... But I don’t see the conundrum in your case, I guess it’s up to both parties to take care of their own skins.” --Edith Wharton, The Custom of the Country.

Things just keep going from bad to worse for ICANN and its new gTLDs. A year ago, ICANN predicted that 33 million new gTLD domain names would be registered in FY2015 (July 1, 2014-June 30, 2015), then lowered that estimate to 15 million domain names, and today, with only a little more than two months to go, we have a total of only about 5 million new gTLD domain names registered according to ntldstats.com, of which less than 4 million were registered in this fiscal year (about 1.4 million new gTLD domain names were already registered in June, 2014, before this fiscal year began). And now new gTLD domains are hemorrhaging registrations as first-time renewals come due and registrants decide new gTLDs are not worth the renewal registration fees.

In addition, after ICANN had collected its money and started delegating new gTLDs into the Internet Root, it was reported that the new gTLDs compromise the stability and security of the Internet DNS, fail to work across Internet, and reportedly "break stuff."

How much worse can it get? Well, as almost everyone now knows, ICANN, when confronted by the results of its own ill-conceived and misbegotten new gTLDs policy and program, decided last week to throw under the bus one of its own new gTLD contractors a/k/a ICANN's "customers" or "partners"--Vox Populi, Registry operator of .SUCKS--without any ICANN finding of wrongdoing or breach by Vox Populi of its Registry Agreement with ICANN!

How did we arrive at this sad state of affairs? Unsurprisingly, it's all about the money--there was money, a lot of money, to be made, by ICANN itself, as the sole monopoly in the world with the ability to "sell" new generic top-level domains, thanks to authority granted it by the United States Department of Commerce, as well as money to be made by the domain name industry--registry operators, registrars, consultants, lawyers, service providers, et al. In that kind of environment, the ideals of Jon Postel et al, and the public interest, were sacrificed on the high altar of Mammon.

All along the way, there were numerous warnings that ICANN chose to ignore:

"We strongly believe that ICANN should substantially reduce the maximum number of new gTLDs that could be introduced in the initial round to a much smaller number. Indeed, doubling the number of existing [22] gTLDs in one year would be an aggressive increase. The imposition of a more reasonable limit is necessary to curb the risks inherent in expanding the number of gTLDs, including the proliferation of malicious conduct. We recommend that ICANN use this round as a limited pilot program, as it has done in previous rounds, assess the organization’s ability to evaluate, introduce, and manage additional gTLDs, conduct an assessment of the increased risks posed by the program, and then consider whether a more significant expansion would be appropriate. --US Federal Trade Commission, letter to ICANN, December 16, 2011 (emphasis added).

“'The public at large, consumers and businesses, would be better served by no expansion or less expansion' of [new gTLD] domains." -- Jon Leibowitz, former Chairman of the US Federal Trade Commission (New York Times, August 17, 2013, emphasis added).

“…. I view it as little more than a predatory shakedown scheme. The business model behind this gTLD [.SUCKS] seems to be the following: force large corporations, small businesses, non-profits, and even individuals, to pay ongoing fees to prevent seeing the phrase “sucks” appended to their names on the Internet… a gTLD like “sucks” has little or no socially redeeming value and it reinforces many people’s fears that the purpose of gTLD expansion is to enrich the domain name industry rather than benefit the broader community of Internet users …” --US Senator John D. Rockefeller IV, letter to ICANN, March 12, 2014 (emphasis added).

Now resulting in this:

"... It [.SUCKS pricing] creates a mockery of the new TLD process and calls into question the very ability of ICANN as an organization to be able to administer the new gTLD program. This issue is particularly timely, given the accountability debate in which ICANN is embroiled... we call on ICANN to put a stop to this coercive scheme based on an abusive modification of ICANN’s RPMs. ICANN is the sole entity in the world charged with the orderly introduction of new gTLDs in a secure, reliable and predictable manner. If ICANN is unwilling or unable to put a halt to this, then who is?..." --Gregory S. Shatan, President, Intellectual Property Constituency (IPC), letter to ICANN, March 27, 2015 (emphasis added). 

To which ICANN responded:

A Regular Meeting of the New gTLD Program Committee of the ICANN Board of Directors was held telephonically on 1 April 2015 "... At the Committee's request, staff provided an overview of the points raised in a 27 March 2015 letter from the Intellectual Property Constituency concerning the .SUCKS TLD (pdf)... Committee members expressed various views about the claims made in the IPC letter, and staff noted that it was evaluating the claims, and exploring possible alternatives to address the noted issues. The Committee asked to receive updates on this matter going forward. The Chair called the meeting to a close."

"... John Jeffrey, ICANN’s General Counsel & Secretary, has sent a letter to the United States’ Federal Trade Commission (FTC) and Canada’s Office of Consumer Affairs (OCA) asking them to consider assessing and determining whether Vox Populi is violating any laws or regulations enforced by their respective offices... We are following up to request responses from these two regulatory agencies and hope that you and the IPC might also encourage these entities to evaluate this, and additionally might offer your assistance should they have any questions..." --ICANN's Akram Atallah letter to Gregory S. Shatan, April 9, 2015. (emphasis added)

"... ICANN, through its registry agreement, may seek remedies against Vox Populi [.SUCKS Registry] if the registry’s actions are determined to be illegal… ICANN has limited expertise or authority to determine the legality of Vox Populi’s positions, which we believe fall within your [FTC and OCA] respective regimes… should the FTC or the OCA make a determination of illegal activity, it could be that Vox Populi will also be in breach of its registry agreement…” --John O. Jeffrey, ICANN General Counsel, Letter to the U.S. government's Federal Trade Commission (FTC) and the Government of Canada's Office of Consumer Affairs (OCA), April 9, 2015 (emphasis added).

Beyond the Contract: Partnering to Strengthen Business and Consumer Protections - ICANN blog post by Allen Grogan, ICANN Chief Contract Compliance Officer, April 9, 2015: "... ICANN is not a regulator ... if Vox Populi is not complying with all applicable laws, it may also be in breach of its registry agreement. ICANN could then act...." (emphasis added)

Apparently, even if the FTC and OCA find Vox Populi has violated a regulation or law, ICANN says only it "may" then do something, and by that time, months, if not years, will have passed!

UPDATE: The ICANN Business Constituency on May 8, 2015, sent its own letters to ICANN, the FTC, and OCA, reiterating and supporting the position taken by the IPC above:

• Letter to ICANN regarding .sucks gTLD policies (pdf)
• Letter to FTC and OCA (pdf)

Questions:

• Will the FTC (or OCA) even open an investigation? Will the FTC open an investigation and expand it to include ICANN and all of its new gTLD contractors (registry operators)? Will the FTC utilize its full and broad authority and powers in both competition (anti-trust) and consumer protection matters--ICANN is a monopoly granting new gTLD registry operators a monopoly (sole authority over a TLD)?
• Will the European equivalents of the FTC and OCA (and perhaps other governmental authorities throughout the world) open their own investigations into these matters?
• How will Vox Populi, the Intellectual Property Constituency, and other interested parties now respond to ICANN, the FTC, and OCA?
• How will all of this impact the US Congress, House and Senate, and their opinions and views of the IANA transition proposed by Larry Strickling, NTIA, US Department of Commerce?
• Will the global multistakeholder community now, finally, turn away in disgust from ICANN and its conflicted, inept management and coordination of the global Internet DNS, and seek an international solution based on the global public interest, not special interests, based in Geneva or some other neutral locale and jurisdiction?

In the meantime, the media are having a field day:

New .Sucks Internet Domain: Extortion Or Free Speech? : All Tech Considered : NPR:

Caveat Emptor!


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