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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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References

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  9. https://freespeech.com/about-us/
 10. https://freespeech.com/contact-us/
 11. https://twitter.com/GeorgeKirikos
 12. https://www.icann.org/
 13. https://www.verisign.com/
 14. https://www.icann.org/en/public-comment/proceeding/proposed-renewal-of-the-registry-agreement-for-net-13-04-2023
 15. https://itp.cdn.icann.org/en/files/registry-agreement/redline-proposed-amendment-2017-net-registry-agreement-11-04-2023-en.pdf
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 28. https://meetings.icann.org/en/calendar
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 30. https://twitter.com/GeorgeKirikos
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 33. https://www.namepros.com/threads/red-alert-icann-and-verisign-proposal-would-allow-any-government-in-the-world-to-seize-domain-names.1300241/
 34. https://domainincite.com/28734-worried-about-governments-seizing-com-domains-too-late
 35. https://mm.icann.org/pipermail/comments-com-amendment-3-03jan20/2020q1/008781.html
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 37. https://www.godaddy.com/garage/the-top-20-most-expensive-domain-names/
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 54. https://freespeech.com/2022/11/28/registrars-continue-to-threaten-to-weaken-domain-name-transfer-security/
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