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Red Alert: ICANN and Verisign Proposal Would Allow Any Government In The
World To Seize Domain Names
[12]ICANN, the organization that regulates global domain name policy,
and [13]Verisign, the abusive monopolist that operates the .COM and
.NET top-level domains, have quietly proposed enormous changes to
global domain name policy in their recently published “Proposed Renewal
of the Registry Agreement for .NET”, which is [14]now open for public
comment.
Either by design, or unintentionally, they’ve proposed allowing any
government in the world to cancel, redirect, or transfer to their
control applicable domain names! This is an outrageous and dangerous
proposal that must be stopped. While this proposal is currently only
for .NET domain names, presumably they would want to also apply it to
other extensions like .COM as those contracts come up for renewal.
The offending text can be found buried in an Appendix of the proposed
new registry agreement. Using the [15]“redline” version of the proposed
agreement (which is useful for quickly seeing what has changed compared
with the current agreement), the critical changes can be found in
Section 2.7 of Appendix 8, on pages 147-148. (the blue text represents
new language) Below is a screenshot of that section:
Proposed Changes in Appendix 8 of the .NET agreement Proposed Changes
in Appendix 8 of the .NET agreement Proposed Changes in Appendix 8 of
the .NET agreement
Section 2.7(b)(i) is new and problematic on its own (and I’ll analyze
that in more detail in a future blog post – there are other things
wrong with this proposed agreement, but I’m starting off with the worst
aspect). However, carefully examine the new text in Section 2.7(b)(ii)
on page 148 of the redline document.
It would allow Verisign, via the new text in 2.7(b)(ii)(5), to:
” deny, cancel, redirect or transfer any registration or transaction,
or place any domain name(s) on registry lock, hold or similar status,
as it deems necessary, in its unlimited and sole discretion” [the
language at the beginning of 2.7(b)(ii), emphasis added]
Then it lists when it can take the above measures. The first 3 are
non-controversial (and already exist, as they’re not in blue text). The
4th is new, relating to security, and might be abused by Verisign. But,
look at the 5th item! I was shocked to see this new language:
“(5) to ensure compliance with applicable law, government rules or
regulations, or pursuant to any legal order or subpoena of any
government, administrative or governmental authority, or court of
competent jurisdiction,” [emphasis added]
This text has a plain and simple meaning — they propose to allow “any
government“, “any administrative authority” and “any government
authority” and “court[s] of competent jurisdiction” to deny, cancel,
redirect, or transfer any domain name registration (as I noted above,
this is currently proposed for .NET, but if not rejected immediately
with extreme prejudice, it could also find its way into other registry
agreements like .COM which the abusive monopolist Verisign manages).
You don’t have to be [16]ICANN’s fiercest critic to see that this is
arguably the most dangerous language ever inserted into an ICANN
agreement.
“Any government” means what it says, so that means China, Russia, Iran,
Turkey, the [17]Pitcairn Islands, Tuvalu, the State of Texas, the
State of California, the City of Detroit, a village of 100 people with
a local council in Botswana, or literally “any government” whether it
be state, local, or national. We’re talking about countless numbers of
“governments” in the world (you’d have to add up all the cities, towns,
states, provinces and nations, for starers). If that wasn’t bad enough,
their proposal adds “any administrative authority” and “any government
authority” (i.e. government bureaucrats in any jurisdiction in the
world) that would be empowered to “deny, cancel, redirect or transfer”
domain names. [The new text about “court of competent jurisdiction” is
also probematic, as it would override determinations that would be
made by registrars via the agreements that domain name registrants have
with their registrars.]
This proposal represents a complete government takeover of domain
names, with no due process protections for registrants. It would usurp
the role of registrars, making governments go directly to Verisign (or
any other registry that adopts similar language) to achieve anything
they desired. It literally overturns more than two decades of global
domain name policy.
ICANN policy is supposed to be determined through an open and
transparent multistakeholder process through the [18]GNSO (Generic
Names Supporting Organization), which has representatives from
non-commercial organizations, registrars, registries, businesses, and
other stakeholders. It is not supposed to be determined through
bilateral private and opaque negotiations between ICANN staff and
Verisign.
Let me provide a few examples of what the “new world order” for domain
names would be under the world envisioned by ICANN staff and Verisign:
1. The government of China orders domain names operating websites that
are critical of its policies to be suspended (or simply transferred
to the Chinese government).
2. The government of Russia, at war with Ukraine, orders the transfer
of pro-Ukrainian domain names to the control of the Russian
government.
3. The government of Ukraine, at war with Russia, orders the transfer
of pro-Russian domain names to the control of the Ukrainian
government.
4. The government of Texas orders pro-abortion domain names to be
transferred to the Texas government.
5. The Taliban government in Afghanistan orders pro-abortion domain
names, and those promoting education for girls, to be transferred
to the government.
6. The government of Iran orders all domain names around the world
with “adult” content (i.e. pornography) to be transferred to the
Iranian government.
7. The government of Tuvalu, (which already licenses the .TV registry
in order to raise funding) facing an economic crisis due to climate
changes, orders that every 2-letter, 3-letter, and one-word dot-net
be transferred to the Tuvalu government, in order to auction off
the domain names to raise new funding for themselves.
8. A government in Argentina launches a new program whose name happens
to be identical to the domain name owned by a French company for
the past 25 years. The government of Argentina orders that the
domain name be transferred to them, without compensation for the
expropriation.
9. The government of Italy is upset about a social media company
operating from China, and orders that the Chinese company’s domain
name be transferred to the Italian government.
10. The UK government is upset that software published by a Swedish
company has end-to-end encryption. It orders the domain name of the
Swedish company be transferred to the UK government.
I’m sure readers can come up with their own examples of what would
happen if governments are able to censor or seize domain names they
don’t like or expropriate domain names that they covet, without due
process for registrants.
Now, you might be thinking “Hey, I don’t live in or have any connection
to China, Russia, or Afghanistan — those governments have no
jurisdiction over me.” That’s how things are at present. ICANN and
Verisign propose to overturn centuries of legal debate over the nature
of liability across jurisdictions with their outrageous proposal
Next, you might be thinking “If they take my domain, I will sue
Verisign, ICANN, or my registrar.” However, that would be quite
difficult, given that the one-sided registrar agreements forced upon us
by ICANN prevents that! (one might get sympathy from courts, if they’re
deemed to be unconscionable “contracts of adhesion”).
Using the [19]red-line agreement again, section 2.7(b)(iii) of Appendix
8 (page 148, literally below the screenshot above!) contains the
following text:
“a provision requiring the Registered Name Holder to
indemnify, defend and hold harmless Verisign and its subcontractors,
and its and their directors, officers, employees, agents, and
affiliates from and against any and all claims, damages, liabilities,
costs and expenses, including reasonable legal fees and expenses
arising out of or relating to, for any reason whatsoever, the
Registered Name Holder’s domain name registration. The registration
agreement shall further require that this indemnification obligation
survive the termination or
expiration of the registration agreement.” [emphasis added]
Verisign, ICANN, and registrars want to be immune from liability, and
thus your registration agreement with your registrar contains one-sided
terms which protect Verisign, ICANN and registrars.
Next, you might think “If a government in China, Russia, or Iran, or
anywhere else takes my domain name, I will get a lawyer and sue them in
my country’s court system!”
Unfortunately, that is also going to be very problematic, because of
the notion of “[20]sovereign immunity” which generally makes it nearly
impossible to start an action against a foreign government outside the
courts of their own nation. We saw this in the context of domain names
when the US Supreme Court [21]would not allow the dispute over the
France.com domain name to be heard in US courts. If the Iranian
government took your domain, you’d have to go to the courts of Iran to
seek relief. If the Chinese government took your domain, you’d have to
go to the courts of China for justice, and so on. This is why I was so
opposed to the proposal relating to IGOs, which would also harm domain
name owners’ rights to have disputes decided by courts, due to alleged
IGO immunity. [see my [22]extensive analysis of that sham policy
change, which is now before the ICANN Board, which will likely
rubberstamp it, throwing registrants under the bus].
This proposal is even more egregious because domain name registrars
take a very thoughtful and nuanced approach to jurisdiction, in order
to protect the due process rights of registrants. My company is based
in Toronto, Ontario, Canada, and all my company’s domain names are
registered with [23]Tucows/OpenSRS. I would expect that if
Tucows/OpenSRS was approached by the government of Iran, China, Russia,
etc. about one of my company’s domain names, they’d be told to take
their dispute to an Ontario court, particularly given that [24]domain
names are property in Ontario, Canada.
Indeed, there is an [25]active dispute between various registrars and
the government of India, because those registrars (including Tucows,
Dynadot, NameCheap) insist that plaintiffs get US court orders to
takedown various sites. Those registrars are even facing being blocked
by ISPs in India, in order to protect the rights of registrants to due
process in their own jurisdiction and national courts.
ICANN staff and Verisign are trying to sneak through this major policy
change which has enormous negative implications for domain name rights
without any serious debate. If you [26]re-read the announcement page
for the public comment period, it appears to simply be a routine
renewal. Here’s a screenshot of what ICANN staff claims are the “key
provisions” that are “materially different” from the current agreement.
ICANN's summary of materially different provisions in the .NET
agreement ICANN's summary of materially different provisions in the
.NET agreement ICANN’s summary of materially different provisions in
the .NET agreement
Did ICANN staff highlight the enormous negative ramifications that I’ve
pointed out in this article? Of course not! Instead, they bury major
policy changes in an appendix near the end of a document that is over
100 pages long (133 pages long for the “clean” version of the document;
181 pages for the “redline” version). I’ve been ICANN’s fiercest critic
(and Verisign’s too!) for two decades (see [27]pages 4-5 of a recent
comment submission which lists some of the “highlights”, including
sounding the alarm over tiered pricing, SiteFinder, etc.) When I saw
the ICANN summary, it seemed at first glance like a routine renewal
with no big changes. But, I had some time on the weekend to go through
the redline version and was astonished at the changes.
ICANN and Verisign appear to have deliberately timed the comment period
to avoid public scrutiny. The public comment period opened on April
13, 2023, and is scheduled to end (currently) on May 25, 2023. However,
the ICANN76 public meeting was held between March 11 and March 16,
2023, and the ICANN77 public meeting will be held between [28]June 12
and June 15, 2023. Thus, they published the proposal only after the
ICANN76 public meeting had ended (where we could have asked ICANN staff
and the board questions about the proposal), and seek to end the public
comment period before ICANN77 begins. This is likely not by chance, but
by design.
Few others would have noticed what’s going on, so once again I’m
sounding the alarm.
What can you do? You can [29]submit a public comment, showing your
opposition to the changes, and/or asking for more time to analyze the
proposal. [there are other things wrong with the proposed agreement,
e.g. all of Appendix 11 (which takes language from new gTLD agreements,
which are entirely different from legacy gTLDs like .com/net/org);
section 2.14 of Appendix 8 further protects Verisign, via the new
language (page 151 of the redline document); section 6.3 of Appendix 8,
on page 158 of the redline, seeks to protect Verisign from losing the
contract in the event of a cyberattack that disrupts operations —
however, we are already paying above market rates for .net (and .com)
domain names, arguably because Verisign tells others that they have
high expenses in order to keep 100% uptime even in the face of attacks;
this new language allows them to degrade service, with no reduction in
fees).
You can also contact your registrar, so that they are encouraged to
voice their opposition to this proposed agreement. You can also blog
about this, or participate on message boards to educate and inform
other domain name owners about the great dangers should this proposed
agreement be adopted unchanged, so that they too can submit comments
opposing the proposed agreement. You can also [30]follow me on Twitter
for further updates.
Verisign is an abusive monopolist. They’re already getting guaranteed
10% permitted annual registry fee increases, due to past weak
negotiations by ICANN. The management of the .NET (and .COM) TLDs
should be put out to a competitive public tender.
In the alternative, ICANN and Verisign should simply renew the existing
contract with absolutely no changes.
I will be [31]writing to the ICANN Board to express my concerns, and
asking for at least an extension of the comment period. ICANN staff
should also hold a public webinar where they can explain these changes.
As I noted earlier, these changes are either (i) by design, or (ii)
unintentional. If by design, the ICANN staff who negotiated this
agreement, which attacks registrars, registrants and usurps the role
of the GNSO, should be removed from their position. Such a dangerous
proposal to give governments unprecedented powers over domain names
should not have seen the light of day if ICANN staff were true
custodians of the domain name system. If instead these proposed changes
are unintentional, then the ICANN staff (including any external lawyers
reviewing their work) are grossly incompetent to put forth a document
that they didn’t understand. Gross incompetence should lead to
immediate dismissal. It’s time to hold ICANN’s staff, and ICANN’s board
accountable for this sloppy proposal that they’re attempting to sneak
through to the detriment of domain name owners. Someone has to take the
fall for this unprecedented attack on the rights of domain name owners.
Update #1: I’ve submitted a [32]“placeholder” comment to ICANN, to get
the ball rolling. There’s also a [33]thread on NamePros.com about this
topic, if you had questions, etc.
Update #2: DomainIncite [34]points out correctly that the offending
language is already in the .com agreement, and that people weren’t
paying attention to this issue back 3 years ago, as there bigger fish
to fry. I went back and reviewed my [35]own comment submission, and see
that I did raise the issue back then too:
11. We also object to the major changes to the .COM
Registry-Registrar Agreement (starting from page 47 of
[36]Click to access com-proposed-amend-3-03jan20-en.pdf
for those who didn’t read that far!). Without mentioning all
sections (we object to all the changes, out of an abundance of
caution), we point out that the new language in section 2.7 is
dangerous, potentially allowing Verisign the ability to override
decisions by
registrars as to how to handle various situations, which can result
in elimination of due process for registrants. For example, 2.7(b)
refers to:
“any legal order or subpoena of ****any government*****,
administrative or governmental authority, or court of competent
jurisdiction,” (emphasis added)
which is not acceptable! For example, if this language is not
modified, then it says that if a government from Cuba, North Korea,
Iran or other totalitarian regime tells Verisign to transfer
ownership of sites owned by my company, such as Math.com or
FreeSpeech.com to
their control, Verisign can go along! Or, why stop there? Why not
allow Verisign to shut down Google.com, if the government of Iran or
Turkey or Russia asks for it? Why bother with a shutdown — suppose a
government in one of those regimes orders the actual transfer of a
domain name such as Google.com or Sex.com or School.com or Apple.com
or Amazon.com or Microsoft.com?
Again, why stop there? A “crafty” government seeking to profit
economically, say in a banana republic, can pass a law to say that
they want all dictionary-word dot-coms, 2-letter and 3-letter
dot-coms
and other valuable domain names to be transferred to them! That’s
many billions of dollars worth of digital assets, all for the taking
— if those banana republics can sell passports, citizenship, their
entire
ccTLDs, and engage in other dubious activities, why wouldn’t they be
incentivized to simply pass laws to order the transfer of an $872
million domain like Cars.com?
[37]The top 25 most expensive domain names
IFRAME:
[38]
https://www.godaddy.com/garage/the-top-20-most-expensive-domain-
names/embed/#?secret=Ebv9TGkvTk#?secret=ay1T1N1R2f
https://www.dnacademy.com/the-definitive-guide-to-the-worlds-largest
-domain-sale
This is unacceptable. Registrants have an expectation that they will
be governed by the laws of the jurisdictions in which they are
based (or that of the registrar), and due process considerations
demand that
this continues.
All of the changes to section 2.7(b) should be eliminated. For
example, why single out “copyright infringement” — why not criminal
activity by banks such as Barclays?
http://www.circleid.com/posts/20150520_should_barclays_lose_the_barc
lays_top_level_domain/
Or patent violations by Apple?
https://www.theverge.com/2020/1/29/21114325/apple-broadcom-caltech-l
awsuit-jury-award-1-1-billion-damages
Even Google has an active case involving alleged copyright
infringements with Oracle:
https://en.wikipedia.org/wiki/Google_v._Oracle_America
If Google loses that case (now before the Supreme Court), why
shouldn’t they lose all of their domains, under the literal
interpretation of the proposed Section 2.7(b)? It’s clear to us that
Section 2.7(b) is dangerous because it would only be selectively
enforced. I doubt Google or Youtube has much to fear from Verisign,
despite all the copyright infringement that takes place on their
domains. But, by the strict language of that contract, conceivably
they *should* be afraid. Instead, it’ll be more vulnerable entities
who would lose their domains, without proper due process. No one
should have that power, except proper courts (in the proper
jurisdictions, not “any jurisdiction”). Contracts should be read as
to what’s possible, and what’s proposed here is potentially
extremely
dangerous.
12. The new language in Section 2.14 reinforces 2.7(b), and also
must
be eliminated, for the reasons above.
Given that this dangerous text made it through without serious
consideration at the time, and now that folks are aware of the issues,
then it should be removed from .com (and not permitted in .net).
Related
Author [39]George KirikosPosted on [40]April 19, 2023April 20,
2023Categories [41]domain names, [42]ICANNTags [43]ICANN, [44]legal,
[45]Verisign
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[46]Previous Previous post: Our January 30, 2023 Comments to ICANN
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