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September 30, 2014 – DNS POLICY NOTES FOR SEPT. 30, 2014

Collected news and opinion about the Internet Corporation for Assigned Names and Numbers, the domain name business, Internet governance, and miscellaneous other cyberlaw topics for Sept. 30, 2014.

Big Brother ICANN

In Online privacy: Big Brother plans from ICANN, Internet governance expert Emily Taylor writes:

The Expert Working Group contained privacy specialists, and one registrar who has been a vocal critic of ICANN's data retention requirements. Yet, the EWG report has almost no discussion of the online privacy risks of requiring retention of all historic WHOIS data, on everyone, everywhere. This is an extraordinary omission. The failure to discuss the implications raises serious questions about the credibility of the report as a whole.

From the chair of the ICANN group that produced that last big report on WHOIS, an attack on the work of the latest ICANN group to produce a big report on WHOIS. Themes in this detailed criticism of the EWG's work are: post-Snowden tone-deafness to privacy concerns arising from the EWG's call for a central database of domain name registrant contact information, inattention to the risks posed by centralizing WHOIS data, and a suspicion that the WHOIS game might be rigged in favor of a certain outcome.

Last Mile Lawyering Over .insurance

Over at the fTLD Registry Services site is a Sept. 17 letter from fTLD counsel Arif H. Ali to ICANN counsel Jeffrey LeVee complaining about the possibility that ICANN might be allowing Donuts to raise an (allegedly!) late challenge to a community objection proceeding that appeared to doom Donuts' bid for the .insurance gTLD:

Not only is fTLD deeply troubled by ICANN's handling of this matter, but we are confounded by ICANN's apparent willingness to extend the time period for Donuts to file a notice of request for Independent Review Process ("IRP") relating to the seven strings, including .INSURANCE, named in its July 18, 2014, request for CEP. Setting aside the fact that any request by Donuts for a CEP relating to .INSURANCE is untimely and improper, any new purported time period for commencing an IRP also has expired, unless ICANN has afforded Donuts extra time. The CEP procedures incorporated by reference into ICANN's Bylaws expressly state that "in no event, absent mutual written agreement by the parties, shall the extension be for more than fourteen (14) days." Given that fTLD's application for .INSURANCE remains "on hold," we presume that ICANN has entered into an agreement with Donuts to extend the period for filing an IRP. If this is the case, ICANN is improperly and unduly delaying fTLD's progress towards delegation, at material detriment to fTLD.

Sure enough, fTLD's application for .insurance is designated by ICANN as "on hold" even though it prevailed contention with other applicants. The Ali letter contains quite a bit of background about what is going on here. So far, ICANN has published none of the correspondence it has received on the matter.

Medical Emergency

In A call for a moratorium on the .health generic top-level domain: preventing the commercialization and exclusive control of online health information (Globalization and Health), a handful of health professionals decry the imminent delegation of the .health top-level domain without adequate protection of the public interest in accurate health-related information:

Were ICANN to agree to this moratorium, we would recommend the formation of an expert working panel comprised of a diverse set of eHealth stakeholders to constructively discuss the appropriate role and governance of gTLDs to ensure universal access to quality health information online. This includes discussion on consumer privacy and protection, methods of assurance and verification of quality/trusted health information, proactive prevention of online fraud and abuse, regulation of illegal promotion and commercial practices targeted to consumers, and promoting health literacy on the web. The panel could explore more appropriate and alternative policies and governance mechanisms during the time-limited moratorium.

The worry here is that, as things now stand, companies might be able to register domains such as bacongrease.health and smokingisgood.health. The authors place much of the blame on the World Health Organization, first for failing itself to apply for the TLD and, second, for failing to lobby effectively during the ICANN application process for greater public health protections in .health.

Seems like the horse is already out of the barn. DotHealth LLC is in contracting now with ICANN for the .health TLD.

Hail Mary?

ICANN's ongoing litigation over ownership rights to a handful of ccTLDs operated by Iran, North Korea, and Syria took an interesting turn over the weekend, as attorneys for judgment creditors seeking to attach those ccTLDs filed a motion for discovery to take depositions and obtain documents. The memorandum supporting the motion contains summary and background information supporting the judgment creditors' arguments.

The judgment creditors are seeking permission to take the deposition of key ICANN outside attorneys (Joseph Sims and Jeffrey LeVee, of Jones Day), the IANA Manager, and several other experts. They are also seeking production of documents relating to other ccTLDs that, they argue, will demonstrate that ccTLDs are valuable properties (e.g., Neustar's recent $100 million purchase of the .co ccTLD) that could be sold to satisfy the judgments they hold. In order for depositions and additional discovery to take place, a postponement for several months of current motion deadlines is necessary, they argue.

For readers new to the story, the judgment creditors hold multi-million dollar judgments against Iran, North Korea, and Syria. The are seeking to attach, and then sell, the ccTLD registries associated with those countries to pay off those judgments. ICANN is resisting, arguing — for several reasons — that these ccTLDs are not property subject to creditor remedies in federal court. The motion was filed just days before the judgment creditors' response was due on ICANN's motion to quash these efforts. The court's response to the judgment creditors' latest discovery request could provide an early indication of the court's willingness to work through the novel legal issues raised in the case.

The judgment creditors are also conducting a public relations campaign outside the courtroom, which is in my experience rare, for obvious reasons. Public opinion matters little here, and they risk raising the judge's ire. Here is the text of a press release I received this morning:

For Immediate Release – September 30, 2014

AMERICAN VICTIMS OF TERRORISM SEEK TO INVESTIGATE IRAN'S OWNERSHIP OF INTERNET ASSETS

Victim Families Move to Compel ICANN to Provide Information, Officials and Testimony to Explain Iranian, North Korean, and Syrian Ownership of Internet Assets

September 30, 2014 – (Washington, DC) A group of American victims of terror and family members of those who have been injured in attacks sponsored by the Islamic Republic of Iran ("Iran"), North Korea, and Syria are demanding that Internet Corporation for Assigned Names and Numbers ("ICANN") produce information and key staff members to be deposed in Plaintiffs' efforts to seize Iranian internet assets. The Plaintiffs have filed a motion seeking a Court order directing ICANN, an entity which controls and administers the Global Internet's registry of names and numbers, to produce officials whom have vital information and evidence concerning the internet assets of Iran, North Korea and Syria.

The Plaintiffs, who hold unsatisfied American federal court judgments amounting to more than a billion dollars against the Iranian, North Korean and Syrian governments seek to seize all the "country code top-level domain" ("ccTLD") names including the .ir. sy, and .kp TLD's and all Internet Protocol ("IP") addresses being utilized by those governments and their agencies.

This past June, the victims' families filed a writ of attachment against ICANN to seize these internet assets in the federal court in Washington, DC.Domain names (such as http://www.usa.gov/) are the unique words or phrases that users depend upon to find places and information on the Internet. Domain names are structured hierarchically; the top being the "top-level" domain, the suffix attached to the domain name, such as ".com", ".gov," and ccTLD'ssuch as ".ru", for Russia, ".ir," for Iran, etc. These top level domains, including ccTLD's, are property residing on a server located in America and under the direct control and authority of ICANN. This server location is referred to by ICANN as the "Root Zone".

The Root Zone is, in fact, where Iranian, Syrian and North Korean property resides within America's borders. The Root Zone is the central and authoritative map to all top level domain names on the Global Internet, giving ICANN its power and control over the Internet.

ICANN has stridently resisted the Plaintiffs' efforts to gain control of the Iranian, Syrian and North Korean internet assets. In its Motion to Quash the writ of attachment, ICANN argues that the ccTLDs are not "property" subject to attachment, nor are they owned by the governments of the countries to which they have been assigned. The agency also claims that it does not have the power or authority to re-delegate the ccTLDs. Also,doing so would interfere with contractual relationships and, moreover, jeopardize the manner in which the internet operates. However, these assertions are contradicted by the past practices and statements of ICANN and the United States government. In fact, the United States has claimed previously that ccTLD's associated with its territories, are the property of the United States government. Furthermore, ICANN has effectuated numerous re-delegations of ccTLD's in the past. Finally, many countries including Colombia have treated their ccTLD's as tangible property either by selling or licensing their ccTLD's to private third parties for vast sums of money. In the case of Colombia, Neustar, Inc. paid over $100 million dollars to take over the ccTLD. Such economic activity confirms a vibrant marketplace for ccTLD's as property that may be bought, sold and transferred. If the Court agrees with Plaintiffs' position, Plaintiffs will be able to foreclose upon these internet assets and sell them to the highest bidder or have them transferred to a receiver to monetize the ccTLD's for Plaintiffs' benefit.

In papers filed this weekend, the Plaintiffs' families outlined some of the discovered contradictory evidence demonstratingthe need for full discovery to be taken from ICANN. This includes some of the founders of the internet to establish that ccTLD's have historically been considered property. Thus, ccTLD's may be seized by the terror victims to satisfy Iran's unpaid judgments. Now the Plaintiffs seek additional information and depositions of ICANN officials in furtherance of their efforts to satisfy their judgments.

The Plaintiffs are represented in this unprecedented civil action by attorneys Nitsana Darshan-Leitner of Tel-Aviv, Israel; Erik S. Syverson of Los Angeles; and Robert J. Tolchin of New York. According to Erik S. Syverson: "This is not only a righteous case but a case of first impression. Courts across this country have long held that domain names are property that may be seized to satisfy civil judgments. We are simply asking this Court to apply the same logic to ccTLD's."

Attorney Darshan-Leitner said: "For years the Iranian government has refused to pay its judgments, thumbing its nose at these terror victims and the American court system. Our clients continue to suffer from the suicide bombing that Iran financed in Jerusalem nearly seventeen years ago. It is not our intention to shut down Iran's internet usage, but we want what is rightfully due. If by seizing any funds earned from these internet assets we can satisfy the judgments, we will have served our clients. We remain committed to helping these American families satisfy their judgments."

ICANN Announces GDD Sessions for LA 51 Meeting

Yesterday ICANN announced the sessions put on by its Global Domains Division at the upcoming public meeting in Los Angeles:

  • IANA Department – Who, What, Why? (10/13)
  • Global Domains Division Update (10/13)
  • Update on Next Round of New gTLDs (10/13)
  • New gTLD Program Update (10/13)
  • IDN Program Update (10/15)
  • IDN Root Zone LGR (Workshop) (10/15)
  • Name Collision (10/15)
  • Registry Services Update (10/15)
  • Rights Protection Mechanisms: User Feedback Session (10/15)
  • DNS Risk Framework (10/15)
  • GDD Service Delivery, Customer Service & SLAs (10/15)
  • Universal Acceptance (10/15)
  • Thick WHOIS Implementation (Working Session) (10/16)
  • Deploying the IETF's WHOIS Replacement (10/16)

ICANN Announces GDD Sessions for LA 51 Meeting

New gTLD operators may never challenge the TLDs picked by Jon Postel, but they're definitely on track to beat TLDs picked by ICANN itself