Cruz-Duffy bill would put brakes on IANA transition

America’s continuing unique oversight role in the DNS root management system, fuck yeah!
That’s basically the takeaway from a new bit of proposed US legislation, put forward by Sen. Ted Cruz and Rep. Sean Duffy in both houses of Congress yesterday.
The two Republican Congressmen have proposed the inappropriately named Protecting Internet Freedom Act, which is specifically designed to scupper the IANA transition at the eleventh hour.
PIFA would prevent the National Telecommunications and Information Administration from backing away from its role in the DNS root management triumvirate.
It’s supported, ironically, by a bunch of small-government right-wing think tanks and lobby groups.
If the bill is enacted, NTIA would need a further act of Congress in order to cancel or allow to expire its current IANA functions contract with ICANN
The bill (pdf) reads:

The Assistant Secretary of Commerce for Communications and Information may not allow the responsibility of the National Telecommunications and Information Administration with respect to the Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the performance of the Internet Assigned Numbers Authority functions, to terminate, lapse, expire, be cancelled, or otherwise cease to be in effect unless a Federal statute enacted after the date of enactment of this Act expressly grants the Assistant Secretary such authority.

The bill also seeks to ensure that the US government has “sole ownership” of the .gov and .mil TLDs “in perpetuity”.
These ownership rights are not and have never been in question; the inclusion of this language in the bill looks like a cheap attempt to stir up Congresspeople’s basest jingoistic tendencies.
A Cruz press release said the IANA transition “will allow over 160 foreign governments to have increased influence over the management and operation of the Internet.”
Duffy added:

President Obama wants to hand over the keys to the Internet to countries like China and Russia. This is reckless and absurd. The governments of these countries do not value free speech. In fact, they censor the Internet and routinely repress and punish political dissidents. They cannot be trusted with something as fundamental to free speech as a free and open Internet.

It’s unfiltered scaremongering.
No country — not China, Russia, the US nor any other government — gets increased powers under the IANA transition proposal, which was painstakingly crafted by, and is now supported by, pretty much all community stakeholders over two years.
In fact, governmental power is significantly curtailed under the proposal.
Post-transition, the Governmental Advisory Committee’s current voting practice, which essentially requires unanimity, would be enshrined in ICANN’s bylaws.
If the GAC came to ICANN with advice that did not have consensus — that is, some governments formally objected to it — ICANN would be able to reject it much more easily than it can today.
The one area where the GAC does get a new role is in the so-called “Empowered Community”, a new concept that will enter the ICANN bylaws post-transition.
The Empowered Community would be a non-profit legal entity formed by the ICANN community in the exceptional event that the ICANN board goes rogue and starts doing really egregious stuff that nobody wants — for example, introducing Draconian policy regulating freedom of speech.
The EC would have the power to kick out the ICANN board members of its choice, reject the ICANN budget, throw out proposed bylaws amendments and so on. As far as ICANN is concerned, the EC would be God.
Its members, or “Decisional Participants” would be the GNSO, the ccNSO, the ALAC, the ASO and the GAC.
The fact that the GAC has a seat at the EC table is the straw that Cruz, Duffy and co grasp at when they talk about governments getting increased power in a post-transition ICANN.
But the GAC’s voice is equal to those of the other four participants, and the GAC is not allowed a vote on matters stemming from ICANN’s implementation of consensus GAC advice.
In other words, the only way Cruz’s boogeymen governments would ever get to push through a censorship policy would be if that policy was also supported by all the other governments or by the majority of the diverse, multi-stakeholder ICANN community.
The arguments of Cruz and Duffy are red herrings, in other words.
Not only that, but the US record on attempted censorship of the DNS root is hardly exemplary.
While it’s generally been quietly hands-off for the majority of the time ICANN has had its hand on the rudder, there was a notable exception.
The Bush-era NTIA, following a letter-writing campaign by the religious right — Bible-thumping Cruz’s base — exerted pressure on ICANN to reject the proposed porn-only .xxx gTLD.
So who’s the real threat here, Red China or Ted Cruz, the man who tried to ban the sale of dildos in Texas?
The Protecting Internet Freedom Act is obviously still just a bill, but Republicans still control both houses of Congress so it’s not impossible that the tens of thousands of hours the ICANN community has put into the IANA transition could be sacrificed on the altar of embarrassing the President, who is probably Kenyan anyway.

Former GoDaddy VP apes Trump in Congressional bid

Former GoDaddy general counsel and apparent glutton for punishment Christine Jones is to run for political office for a second time.
She’s looking for the Republican nomination in Arizona’s Fifth Congressional District, she said in an email circular yesterday.
In a video announcing the candidacy, it seems pretty clear she’s taking a leaf out of the Donald Trump playbook by playing the “outsider” card.
“She’s one of us, not a politician,” a talking head says in a totally unrehearsed, unscripted and utterly convincing soundbite.

Much like Trump, she’s also touting the fact that she’s “independently wealthy” and therefore not as reliant on big donors to fund her campaign.
According to Jones’ web site, the most important issues facing Arizonians are border security, Islamic State, abortion (she’s anti-), an overly complex tax system and gun ownership (she’s pro-).
It sounds ridiculous, but this is what passes for mainstream politics in the US nowadays.
The incumbent in the Congressional seat she wants, considered safely Republican, recently announced his retirement, but Jones will face at least three established local politicians in the contest for the nomination.
Jones stood for the Republican nomination for Arizona Governor in 2014, but came third in the seven-strong field, with 16.6% of the vote.

Chehade confirms he’ll be gone before IANA transition is done

ICANN CEO Fadi Chehade has laid out his current best thinking for the timeline of the IANA’s transition from US government oversight, and he’ll be gone well before it’s done.
At the opening ceremony of the ICANN 53 meeting in Buenos Aires today, Chehade described how June 2016 is a likely date for the divorce; three months after his resignation takes effect.
Chehade said:

I asked our community leaders, “Based on your plans and what you’re seeing and what you know today, when could that finish?” The answers that are coming back to us seem to indicate that by ICANN 56, which will be back in Latin America in the middle of 2016, a year from today, the contract with the US Government could come to an end.

He showed a slide that broke the remaining work of the transition into three phases.

Work being carried out within ICANN is not entirely to blame for the length of time the process will take.
The US National Telecommunications and Information Administration needs 60 to 90 days to review the final community-developed transition proposal.
And under forthcoming US legislation, 30 legislative days will be required for the US Congress to review the NTIA’s approval of the plan.
Thirty legislative days, Chehade explained, could mean as many as 60 actual days, depending on the yet-unpublished 2016 Congressional calendar.
He urged the community focus hard on Phase One in his graphic — actually producing a consensus transition plan.
The target for delivery of this is the next ICANN meeting, 54, which will take place in Dublin, Ireland from October 18 to October 22 this year.

US Congresspeople tell ICANN to ignore GAC “interference”

A bispartisan group of US Congresspeople have called on ICANN to stop bowing to Governmental Advisory Committee meddling.
Showing characteristic chutzpah, the governmental body advises ICANN that advice from governments should be viewed less deferentially in future, lest the GAC gain too much power.
The members wrote (pdf):

Recent reports indicate that the GAC has sought to increase its power at the expense of the multistakeholder system. Although government engagement in Internet governance is prudent, we are concerned that allowing government interference threatens to undermine the multistakeholder system, increasing the risk of government capture of the ICANN Board.

The letter was signed by 11 members of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, which is one of the House committees that most frequently hauls ICANN to Capitol Hill to explain itself.
Most of the signatories are from the Republican majority, but some are Democrats.
It’s not entirely clear where they draw the line between “engagement” and “interference”.
The letter highlights two specific pieces of GAC input that the signatories seem to believe constitute interference.
First, the GAC’s objection to Amazon’s application for .amazon. The letter says this objection came “without legal basis” and that ICANN “succumbed to political pressure” when it rejected the application.
In reality, the GAC’s advice was consensus advice as envisaged by the Application Guidebook rules. It was the US government that succumbed to political pressure, when it decided to keep its mouth shut and allow the rest of the GAC to reach consensus.
The one thing the GAC did wrong was filing its .amazon objection outside of the window envisaged by the Guidebook, but that’s true of almost every piece of advice it’s given about new gTLD applications.
Second, the Congresspeople are worried that the GAC has seized for its members the right to ban the two-letter code representing their country from any new gTLD of their choosing.
I’ve gone into some depth into how stupid and hypocritical this is before.
The letter says that it has “negative implications for speech and the world economy”, which probably has a grain of truth in it.
But does it cross the line from “engagement” to “interference”?
The Applicant Guidebook explicitly “initially reserved” all two-letter strings at the second level in all new gTLDs.
It goes on to say that they “may be released to the extent that Registry Operator reaches agreement with the government and country-code manager.”
While the rule is pointless and the current implementation convoluted, it comes as a result of the GAC engaging before the new gTLD program kicked off. It was something that all registries were aware of when they applied for their gTLDs.
However, the GAC’s more recent behavior on the two-letter domain subject has been incoherent and looks much more like meddling.
At the ICANN meeting in Los Angeles last October, faced with requests for two-character domains to be released, the GAC issued formal advice saying it was “not in a position to offer consensus advice on the use of two-character second level domain names”.
ICANN’s board of directors accordingly passed a resolution calling for a release mechanism to be developed by ICANN staff.
But by the time February ICANN meeting rolled around, it had emerged that registries’ release requests had been put on hold by ICANN due to letters from the GAC.
The GAC then used its Singapore communique to advise ICANN to “amend the current process… so that relevant governments can be alerted as requests are initiated.” It added that “Comments from relevant governments should be fully considered.”
ICANN interpreted “fully considered” to mean an effective veto, which has led to domains such as it.pizza and fr.domains being banned.
So it does look like thirteenth-hour interference but that’s largely because the GAC is often incapable of making its mind up, rarely talks in specifics, and doesn’t meet frequently enough to work within timelines set by the rest of the community.
However, while there’s undoubtedly harm from registries being messed around by the GAC recently, governments don’t seem to have given themselves any powers that they did not already have in the Applicant Guidebook.

Is the Defending Internet Freedom Act pro-crime?

The Defending Internet Freedom Act of 2015, introduced to the US Congress last month, contains a provision that could be interpreted as pro-pron, pro-piracy or even just pro-crime.
The act is designed to prevent the US giving up its oversight of ICANN/IANA unless certain quite strict conditions are met.
It’s a revised version of a bill that was introduced last year but didn’t make it through the legislative process.
Like the 2014 version, it says that the US cannot sever ties with ICANN until its bylaws have been amended in various ways, including:

ICANN is prohibited from engaging in activities unrelated to ICANN’s core mission or entering into an agreement or modifying an existing agreement to impose on a registrar or registry with which ICANN conducts business any condition (such as a condition relating to the regulation of content) that is unrelated to ICANN’s core mission.

It’s the “regulation of content” bit that caught my eye.
Presumably written as a fluffy, non-controversial protection against censorship, it ignores where the real content regulation conversations are happening within the ICANN community.
It’s a constant mantra of ICANN that is “doesn’t regulate content”, but the veracity of that assertion has been chipped away relentlessly over the last several years by law enforcement, governments and intellectual property interests.
Today, ICANN’s contracts are resplendent with examples of what could be argued is content regulation.
Take .sucks, for a timely example. Its Registry Agreement with ICANN contains provisions banning pornography, cyber-bulling and parked pages.
That’s three specific types of content that must not be allowed in any web site using a .sucks domain.
It’s one of the Public Interest Commitments that were voluntarily put forward by .sucks registry Vox Populi, but they’re still enforceable contract provisions.
Using a dispute resolution process (PICDRP), ICANN would be able to levy fines against Vox Pop, or terminate its contract entirely, if it repeatedly allows porn in .sucks web sites.
This sounds quite a lot like content regulation to me.
It’s not just .sucks, of course. Other registries have PICs that regulate the content of their gTLDs.
And every contracted new gTLD registry operator has to agree to this PIC:

Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name.

It’s convoluted, but it basically indirectly forces (via registrars) new gTLD domain registrants to, for example, agree to not infringe copyright.
The PIC is paired with a provision (3.18) of the 2013 Registrar Accreditation Agreement that requires all registrars to investigate and “take necessary and appropriate actions” in response to abuse reports within 24 hours of receipt.
Section 3.18 is essentially the RAA mechanism through which ICANN can enforce the PIC from the RA.
This is currently one of the most divisive issues in the ICANN community, as we witnessed during the recent Congressional hearings into ICANN oversight.
On the one hand, big copyright owners and online pharmacy watchdogs want ICANN to act much more ruthlessly against registrars that fail to immediately take down sites that they have identified as abusive.
On the other hand, some registrars say that they should not have to engage in regulating what content their customers publish, at least without court orders, in areas that can sometimes be amorphously grey and fuzzy.
Steve Metalitz, from a trade group that represents the movie and music industies at ICANN, told the US Congress that registrars are dismissing piracy reports without investigating them, and that “unless registrars comply in good faith, and ICANN undertakes meaningful and substantive action against those who will not, these provisions will simply languish as empty words”.
John Horton from pharmacy watchdog used the same Congressional hearing to out several registrars he said were refusing to comply with 3.18.
One Canadian registrar named in Horton’s testimony told DI that every complaint it has received from LegitScript has been about a web site that is perfectly legal in Canada.
In at least some cases, it seems that those pushing for ICANN to more stringently regulate content may have “internet freedom” as the least of their concerns.
If the Defending Internet Freedom Act becomes law in the US, perhaps it could prove a boon to registries and registrars upset with constant meddling from rights owners and others.
On the other hand, perhaps it could also prove a boon for those operating outside the law.

Momentous denies link to “illegal” pharmacy gang

Momentous says CEO Rob Hall is NOT the man behind a registrar devoted almost exclusively to running “illegal” online pharmacies, after the US Congress was told he was a few hours ago.
In written testimony to Congress today, LegitScript president John Horton linked Hall to an “illegal online pharmacy network” called 4rx.
Horton said that the people running 4rx, which he said sells prescription drugs without a license, are also running the ICANN-accredited registrar Crazy8Domains
He went on to produce Canadian corporation records naming Hall as the sole director of the registrar.
I had a bit of a Google and found that Crazy8Domains says it’s based in a building in Ottawa that appears to have been once owned by Momentous.
But Rob Villeneuve, CEO of Momentous registrar Rebel, told us today that Crazy8Domains has not been part of Momentous for years. He said:

the Momentous group sold that Registrar over two years ago, and ICANN approved the sale. Mr. Hall and Momentous are no longer involved in Crazy8Domains in any way. We are unsure why the Industry Canada records have not been updated, and we have today notified Industry Canada of their error.

While Momentous may not be involved with Crazy8Domains, Horton presented some compelling evidence that it’s basically just a puppet registrar for an online pharmacy outfit.
It also goes by the name Kudo.com.
The contact name for the registrar listed by ICANN is Sabita Limbu, who is also listed in Whois as the registrant of domains such as indianpharmaonline.com, offshorerx1.com, and cheapestonlinedrugstore.com.
These sites offer hundreds of generic varieties of drug that purport to treat every condition under the sun, from erectile dysfunction to cancer.
Prescriptions do not appear to be required, and there’s a US toll-free number in case there was any doubt whose citizens are being marketed to.
Whether that’s illegal or not, I couldn’t possibly comment, but Horton told Congresspeople today that there are no countries where it is legal to sell prescription drugs without a license.
According to Horton, Crazy8Domains only has 18 domains live at present, and 15 of them are pharmacies:

In short, for all practical purposes, the ICANN-accredited registrar is the illegal online pharmacy, and the illegal online pharmacy is the ICANN-accredited registrar.

This means it would be virtually impossible for an outfit like LegitScript to get them taken down — any complaints made to ICANN would simply be referred to the registrar, which is in this case also the registrant.

.sucks and ICANN not invited to Congressional hearing on .sucks and ICANN

The witness list in next week’s US Congressional hearing into .sucks and ICANN accountability does not feature .sucks or ICANN.
The eight witnesses are largely drawn from outspoken critics of both ICANN and Vox Populi, either companies or trade associations and lobby groups. It’s stacked heavily in favor of intellectual property interests.
The hearing is titled “Stakeholder Perspectives on ICANN: The .sucks Domain and Essential Steps to Guarantee Trust and Accountability in the Internet’s Operation”.
With hindsight, the “Stakeholder Perspectives” bit gives away the fact that the judiciary subcommittee holding the hearing is more concerned with listening to ICANN’s critics than ICANN itself.
Mei-lan Stark, a senior intellectual property lawyer from Fox and 2014 president of the International Trademark Association, tops the list.
A critic of the new gTLD program, in 2011 Stark told Congress that the first round of new gTLDs would cost Fox “conservatively” $12 million in defensive registration fees.
It will be interesting to see if any Congresspeople confront Stark about that claim, which appeared like a gross overstatement even at the time.
One company that has been enthusiastically embracing new gTLDs — as an applicant, registry, defensive and non-defensive registrant — is Amazon, which has VP of global public policy Paul Misener on the panel.
Amazon has beef with ICANN for siding with the Governmental Advisory Committee over the battle for .amazon, which Amazon has been banned from obtaining, so it’s difficult to see the company as an overly friendly witness.
Next up is John Horton, president of LegitScript, the company that certifies legitimate online pharmacies and backs the .pharmacy new gTLD.
LegitScript is in favor of greater regulation of the domain name industry in order to make it easier to shut down potentially dangerous web sites (though opponents say it’s more often more interested in protecting Big Pharma’s profit margins). This month it called for a ban on Whois privacy for e-commerce sites.
Steve Metalitz, counsel for the Coalition for Online Accountability (a lobbyist for the movie and music industries) and six-term president of the ICANN Intellectual Property Constituency, is also on the list.
Jonathan Zuck, president of ACT The App Association (aka the Association for Competitive Technology, backed by Verisign and other tech firms) is on the list.
NetChoice director Steve DelBianco is also showing up again. He’s an ICANN hearing mainstay and I gather with this appearance he’ll be getting the final stamp on his Rayburn Building Starbucks loyalty card. That means a free latte, which is always nice.
Internet Commerce Association counsel Phil Corwin is a surprise invitee. ICA represents big domainers and is not a natural ally of the IP side of the house.
Bill Woodcock, executive director of Packet Clearing House, rounds off the list. PCH might not have instant name recognition but it provides Anycast DNS infrastructure services for scores of ccTLDs and gTLDs.
The committee hearing will take place at 10am local time next Wednesday.
A second hearing, entitled “Stakeholder Perspectives on the IANA Transition” will be held four hours later by a subcommittee of the House Energy & Commerce committee. The witnesses for that one have not yet been announced.
It’s going to be a busy day for ICANN bods on Capitol Hill.

Congress to put .sucks on trial

The US Congress is to hold a hearing to look into the .sucks gTLD and ICANN accountability.
A hearing entitled “Stakeholder Perspectives on ICANN: The .sucks Domain and Essential Steps to Guarantee Trust and Accountability in the Internet’s Operation” has been scheduled by the House Subcommittee on Courts, Intellectual Property, and the Internet
It will take place in Washington DC next Wednesday, May 13.
The list of witnesses does not yet appear to have been published.
I would guess we’d be looking at, at the very least, somebody senior from ICANN, somebody senior from .sucks registry Vox Populi, and an intellectual property lawyer.
It was ICANN’s Intellectual Property Constituency that complained about .sucks’ sunrise policies and fees, causing ICANN to refer the matter to US and Canadian trade regulators.
The title of the House hearing suggests that the .sucks controversy will be inextricably tied to the broader issue of ICANN accountability, which is currently undergoing a significant review as ICANN seeks to split permanently from US government oversight.
That’s not great optics for ICANN; I’m sure the organization would rather not have its performance judged on what is quite an unusual edge case emerging from the new gTLD program.

Chehade to face Congressional grilling this week

ICANN CEO Fadi Chehade is heading to Washington DC this week to defend plans to decouple the organization from formal US oversight in front of a potentially hostile committee of Congresspeople.
The Senate Committee on Commerce, Science, and Transportation will meet this Wednesday at 1000 local time to grill Chehade and others on the plan to remove the US government from the current triumvirate responsible for managing changes to the DNS root zone under the IANA arrangements.
He will be joined by Larry Strickling, who as head of the National Telecommunications and Information Administration is the US government’s point person on the transition, and Ambassador David Gross, a top DC lawyer formerly with the Department of State.
All three men are pro-transition, while the Republican-tilted committee is likely to be much more skeptical.
The blurb for the Wednesday hearing reads:

As the U.S. government considers relinquishing control over certain aspects of Internet governance to the private sector, concerns remain that the loss of U.S. involvement over the Internet Assigned Numbers Authority (IANA) could empower foreign powers — acting through intergovernmental institutions or other surrogates — to gain increased control over critical Internet functions.

Republicans and right-leaning media commentators have warned that handing over IANA oversight to a multistakeholder body risks giving too much power to governments the US doesn’t like, such as Russia and China.
Several bills introduced in the House and Senate over the last year would have given Congress much more power to delay or deny the transition.
An amendment to an appropriations bill approved in December prevents the NTIA from spending any taxpayer money on relinquishing its DNS root oversight role until after September 30 this year, the same day that the current IANA contract expires.
This effectively prevents a transition during the current IANA contract’s run. Strickling recently said that the NTIA is complying with this legislation, but noted that it does not prevent the agency participating in the development of the transition proposal.
ICANN community working groups are currently working on plans for ICANN oversight post-NTIA and for addressing ICANN accountability.
These documents are hoped to be ready to sent to the NTIA by July, so the NTIA will have enough time to consider them before September 30.
Strickling recently addressed this date in a speech at the State of the Net conference in Washington, saying:

I want to reiterate again that there is no hard and fast deadline for this transition. September 2015 has been a target date because that is when the base period of our contract with ICANN expires. But this should not be seen as a deadline. If the community needs more time, we have the ability to extend the IANA functions contract for up to four years. It is up to the community to determine a timeline that works best for stakeholders as they develop a proposal that meets NTIA’s conditions, but also works.

Opponents of the transition say that because the NTIA is prevented from terminating the IANA contract before October 1, the NTIA will have no choice but to extend it until September 30, 2017.
Given that 2016 is a presidential election year in the US, Barack Obama would be a private citizen again by the time the next opportunity to transition comes around, they say.
Which presidential hopeful — from either party — would not buckle if asked whether he supports a plan to let Iran run the internet? That’s the political logic at work here.
Chehade himself told the AFP news agency earlier this month that the transition would have to happen before the 2016 elections, to avoid political distractions.
I’m not so sure I agree with the premise that, due to the restraints imposed by the appropriation bill, the transition now has to happen under the next president’s administration.
In my layman’s reading of the current IANA contract, the NTIA is able to terminate it for the “convenience of the government” pretty much whenever it wants.
There’s also an option to extend the contract by up to six months. The NTIA exercised this option in March 2012 when it did not approve of ICANN’s first renewal proposals.

Democrat congressman sides with France on .wine

US Representative Anna Eshoo has written to ICANN’s top brass to express “deep concerns” about the .wine and .vin new gTLDs and urge that they be permanently killed off.
In a letter (pdf) to CEO Fadi Chehade, Eshoo wrote:

it’s my understanding that the .wine and .vin gTLDs have been met with fierce opposition from the wine industry, both here in the US and around the world. Given these concerns, coupled with the complexities of reaching agreement on Geographic Indications (GIs), I urge you to advocate for the .wine and .vin gTLDs to be permanently withdrawn from consideration.

Eshoo, a Democrat, is breaking rank with the official position of the Obama administration on this, which is that no special treatment is warranted for the two wine-related gTLDs.
Europe, on the other hand, is vehemently opposed to the introduction of either without strong protection for GIs.
At ICANN 50 in London last week the European Commission and France led the charge against approval of the gTLDs, with the Commission even floating the idea of legal action at one point.
France, meanwhile, seems ready to throw ICANN’s ambitions for independence under a bus in order to get what it wants.
Eshoo is ranking member of the House Communications and Technology Subcommittee, which recently passed the DOT-COM Act over her protestations that it was “embarrassing”.
She also represents the Silicon Valley area of northern California, which is known for its wineries.
While a handful of US winemakers do have a decidedly European attitude to GI protections, the US Governmental Advisory Committee delegation last week said that only a few out of “thousands” agree with France.