(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.
