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ICANN fights the fear in Congressional hearing

Kevin Murphy, April 3, 2014, Domain Policy

A Congressional hearing yesterday addressed fears that the decision to cut ICANN loose from US governmental oversight would lead to the internet being seized by backwards regimes.

Long-term DI readers may recall that I’m usually quite snarky whenever a Congressional subcommittee convenes to pretend to be interested in ICANN — with the reason that they usually talk a lot of nonsense.

But this time the majority of the House Subcommittee on Communications and Technology seemed genuinely interested, surprisingly clueful, and relatively low on hyperbolic fearmongering.

The hearing was arranged due to the National Telecommunications and Information Administration’s March 14 decision to remove itself from the DNS root zone management triumvirate.

Whole cartloads of horse pucky have been wheeled out in response, exemplified by breathless editorials about how the world’s most repressive governments will immediately step in to fill the NTIA-shaped void.

It’s Obama’s policy of “appeasement”, designed to allow a shirtless Vladimir Putin to drive a tank directly into the root zone file, if you believe right-leaning American commentators.

There was some of that in yesterday’s hearing, but it was overshadowed by a discussion that seemed to be more interested in addressing genuine concerns and clearing up misconceptions.

Basically, Congressmen are afraid that if the NTIA leaves its role as steward of the DNS root zone, that will somehow lead to other governments taking over and internet freedoms being diminished.

How that fear manifested itself on the committee ranged from thoughtful and understandable expressions of concern and caution to wild-eyed, nonsensical, Putin-obsessed ranting.

It was the job of witnesses Larry Stricking of the NTIA, Fadi Chehade of ICANN and Ambassador David Gross, formerly of the Department of State, to reassure Congress that everything is going to be okay.

Rep. Scalise thinks Putin is magic

At the risk of being accused of sensationalism, I’m starting with the nut-job, but only to illustrate the misinformation ICANN and the NTIA have been dealing with for the last few weeks.

In a way, Rep. Steve Scalise’s portion of the hearing’s Q&A section is a microcosm of the dialogue that has been playing out in the media since the NTIA announcement.

Scalise was the guy on the committee who seems to believe that Russia and China possess the supernatural powers necessary to “take over the internet”. Red Magic, perhaps.

Here’s an exchange with Strickling and Chehade, which began when Scalise asked the panel to address concerns about authoritarian regimes taking over the internet:

STRICKLING: We won’t let that happen, number one.

SCALISE: What’s an assurance of that? It’s good to say we won’t let that happen, it’s nice to hear it, but nobody knows what’s gong to happen. You can’t tell me what’s going to happen. How do you know you won’t let it happen?

STRICKLING: I’m saying that we will not accept a proposal that has that as its outcome. Period. End of story. So it won’t happen. Second, nobody has yet explained to me the mechanism by which any of these individual governments could somehow seize control over the internet as a whole—

SCALISE: You really don’t think that Russia… Look, Russia and China have made it very clear what they want to do to suppress internet freedom. They’ve made it very clear—

STRICKLING: And they do it within their own countries—

SCALISE: At the end of the day y’all are going to come up with some sort of process if you’re going to transfer away, and I say IF — capital I, capital F — if you transfer it away you will come up with some sort of process. Do you really not thnk that Vladimir Putin, with all the other things he’s busy with right now, ain’t going to try to figure out some way to get control? It won’t be through the Russian government directly necessarily, but China and Russia have proven very resourceful at trying to figure out what that process so that they can manipulate it. You can do all the things you want to stop that from happening but at end of the day it comes out to where those countries have figured out a way, like they’ve figured out a lot of other ways too, to do something subversive that goes against all the intentions that we have. You can’t stop that.

STRICKLING: Well, Congressman, what do you think they could do that they can’t do today?

SCALISE: What do you really think…? Look at what Putin’s doing right now! The President just doesn’t seem to take this seriously what he’s doing through Eastern Europe. He’s trying to rebuild, get the old band back together, get the Soviet Union back together, right now before our very eyes. Secretary of State Kerry says the international community won’t accept this. They’re doing it! They don’t care what the international community thinks. They’re invading a country. So what would they do to get control of the internet if you threw something out there? These are real concerns that are being expressed. The other two panelists can touch on this as well.

CHEHADE: Thank you, Congressman. Let me be clear that at ICANN it is impossible for them today to do so. They’ve been trying for 15 years—

SCALISE: Exactly! Which is why it’s working.

CHEHADE: But it’s not because the US actually has the current stewardship role, it’s because of the multistakeholder model. It stops them. Where they will try to do what you’re suggesting is in the international intergovernmental organizations. They’ve been trying to do that there. We want to take away from them any argument that they still go to the UN and try to take over what ICANN does, by making sure that ICANN is free of one government control. To show them that ICANN believes in the multistakeholder model and this great country that created that model trusts it.

Chehade 1 – Scalise 0.

But did Scalise have a point, even accidentally? I’m going to cover that question in a separate post.

Rep Shimkus really wants you to support his bill

A recurring theme of the hearing was the Domain Openness Through Continued Oversight Matters (DOTCOM) Act, introduced by Rep. John Shimkus and others last week.

I called the bill “pointless” when it emerged, as all it does is delay any transition for a year until the US Government Accountability Office has conducted a study of the ramifications.

But there’s also a feeling that the Act would be a distraction at best and may cast more uncertainty than is necessary over the transition process at a critical time for internet governance.

Both Strickling and Chehade prevaricated when Shimkus asked them outright, repeatedly, if they were opposed to the GAO review.

Strickling said he “neither or supports or opposes” such a review but said he was “in favor of full discussion of these issues”.

Chehade, seemingly reluctant to tie himself to a one-government review said he did not have a view, but that he committed to full transparency in the issue.

The fact that Chehade had said that there was “no rush” to conclude the transition process was later used by Shimkus as a gotcha, when he pointed out that the Act’s one-year delay would not have an impact.

On a second panel, Carolina Rossini of the Internet Governance and Human Rights Program of the New American Foundation, gave perhaps a fuller explanation of why there’s caution about the bill.

My concern is that if we wait one year, if we block the transition now and wait one year until we have a report, that is the risk. And that’s the risk that we have non-democratic governments to actually make their voices even louder and manipulate the narrative both in NetMundial and in the [ITU] plenipot in November.

Shimkus said he’d concluded that Chehade and Strickling has “in essence supported the bill”, which I don’t think was necessarily a fair interpretation of what they said.

The two-and-a-half hour hearing had a couple of other diversions — Rep Blackburn going off on a crazy tangent about net neutrality and Rep Latta wasting everyone’s time to score points on behalf of a constituent, a .med gTLD applicant — but otherwise it was generally sane stuff.

The committee seemed to be fairly well-briefed on the subject before them. Most of the Congressmen expressed their concerns about the transition in sensible terms and seemed to take the answers on board.

Special recognition should also be given to Chehade, who won the slightly condescending praise and admiration of some of the committee when he choked up on an abridged version of his immigrant origin story.

He has an uncanny ability to speak to his audience at every occasion and he put it to excellent use yesterday.

Republicans introduce pointless ICANN bill

Kevin Murphy, March 28, 2014, Domain Policy

Three Republican Congressmen have introduced a bill that would prevent the US government removing itself from oversight of the DNS root zone.

For a year.

The inappropriately titled Domain Openness Through Continued Oversight Matters (DOTCOM) Act is designed to:

prohibit the National Telecommunications and Information Administration from relinquishing responsibility over the Internet domain name system until the Comptroller General of United States submits to Congress a report on the role of the NTIA with respect to such system.

Basically, the NTIA would be barred from walking away from root zone oversight until an analysis of the advantages and disadvantages of the transition was published, which would have to happen within a year.

The report would also have to include a definition of “multi-stakeholder”.

The three Republicans who introduced the bill — Representatives Todd Rokita, John Shimkus, and Marsha Blackburn — either have no idea what they’re talking about, or they’re being intellectually dishonest.

Blackburn said in a press release:

We can’t let the Internet turn into another Russian land grab. America shouldn’t surrender its leadership on the world stage to a “multistakeholder model” that’s controlled by foreign governments. It’s imperative that this administration reports to Congress before they can take any steps that would turn over control of the Internet.

Shimkus said:

In the month of March alone we’ve seen Russia block opposition websites, Turkey ban Twitter, China place new restrictions on online video, and a top Malaysian politician pledge to censor the Internet if he’s given the chance. This isn’t a theoretical debate. There are real authoritarian governments in the world today who have no tolerance for the free flow of information and ideas. What possible benefit could come from giving the Vladimir Putins of the world a new venue to push their anti-freedom agendas?

This is hysterical nonsense.

Not only has ICANN no intention of allowing the IANA function to be controlled by foreign governments, the NTIA has explicitly stated from the start that no governmental solution would be acceptable.

It’s also ironic that the only two governments to ever consider censoring the root zone were the European Commission and the United States, under the Republican Bush administration.

The current expectation, assuming community talks proceed as swiftly as hoped, is for stewardship of the IANA function to leave the NTIA’s hands when the current contract expires in October 2015.

Even if the DOTCOM (really?) Act were to be passed into US law this year, it shouldn’t have any serious impact on the timing of the root transition.

With that in mind, the three-page bill (pdf) looks quite a lot like an extended press release, rather than a serious attempt to keep the root in US hands.

First IDN gTLD auction raises $181,000

Kevin Murphy, March 21, 2014, Domain Sales

TLD Registry today raised over $181,000 in “premium” Chinese IDN domain names.

A live/online auction coordinated by Sedo and held at the China Rouge members’ club here in Macau saw 39 lots go under the hammer, 33 of which managed to raise at least the $2,000 minimum bid.

All the names were in .在线 (“.online”), of two Chinese IDN gTLDs TLD Registry launched this week.

Each lot contained multiple names.

In all cases the ASCII transliteration, or Pinyin, was thrown in. Some lots also contained conceptually related names. So the winner of “casino”.在线 also won “gambling”.在线.

Buyers will presumably be able to split the bundles for resale.

The lot with the highest bid at the end of the day was a collection of domains related to “gaming”, which sold for $25,388. Second was a “casino” bundle, which fetched $25,000

.CLUB Domains CEO Colin Campbell spent $7,100 on “club”.在线 and related terms.

Here’s the full list of auction results. Apologies to my Chinese readers, but I don’t have a Chinese keyboard nor a source document to copy and paste the actual names that were sold.

LotWinning Bid (USD)
TOTAL$181,714
make money2500
Go (the game)2000
pay2250
dinner2000
tall, handsome and rich2100
club7100
cosmetics2200
bitcoin14388
casino25000
go to Hong Kong2000
bookkeeping2000
watch TV2000
reunion0
United Kingdom2550
personal homepage0
domain investing2500
discount4100
buy and sell3100
study English2250
maintaining your health2000
I love you2000
babysitting0
I want to eat2000
diet network2000
furniture2800
real estate16000
hot/popular2000
new cars2000
learn about wine0
luxury watches6400
travel and weather0
sell5588
hot search terms2400
loans7500
delivery information0
rent15500
financing2000
gaming25388
trademark6100

DISCLOSURE: I attended most of the auction and moderated a panel discussion during the lunch break. TLD Registry paid for my airfare and accommodation.

TLD Registry sells 20k+ IDN gTLD names to Chinese gov

Kevin Murphy, March 19, 2014, Domain Registries

TLD Registry has sold 20,452 new gTLD domain names to the Chinese government as it prepares to launch .中文网 (“.chinesewebsite”) and .在线 (“.online”) tomorrow.

The deal, signed this week with the Service Development Center of the State Council Office for Public Sector Reform (SCOPSR) is for 10,226 names in each gTLD.

The domains include the Chinese-script names of every city in China with a population of over 200,000, as well as counties, municipalities and other regional names.

Strings that translate to things like “invest in [place name]” and “tourism [place name]” have also been registered to the government in both TLDs, according to the company.

It looks like this is the first significant anchor tenant deal we’ve seen in the new gTLD program.

Assuming China actually uses these names, it could be great publicity for the new registry’s gTLDs. The government has a policy of transitioning all of its services to fully IDN.IDN domains.

If not, it still means that both gTLDs stand to launch with over 10,000 names in each zone file on day one, even before regular registrants have had a chance to buy them.

The company is also set to auction a bunch of premium names in both namespaces on Friday simultaneously via Sedo and a live event at a private members’ club in Macau.

I’m posting this from Hong Kong airport, en route to the Macau event. As a matter of disclosure: TLD Registry is paying for my flights and accommodation.

Cartier sues Nominet hoping to set global domain name take-down precedent

Kevin Murphy, January 22, 2014, Domain Policy

Luxury watchmaker Cartier has taken .uk registry Nominet to court, hoping to set a precedent that would enable big brands to have domain names taken down at a whim.

The company sued Nominet in a London court in October, seeking an injunction to force the registry to take down 12 domain names that at the time led to sites allegedly selling counterfeit watches.

We’ve only become aware of the case today after Nominet revealed it has filed its defense documents.

Judging by documents attached to Nominet’s court filings, Cartier sees the suit as a test case that could allow it to bring similar suits against other “less cooperative” registries elsewhere in the world.

In a letter submitted as evidence as part of Nominet’s defense, Richard Graham, head of digital IP at Cartier parent company Richemont International, said that he was:

seeking to develop a range of tools that can be deployed quickly and efficiently to prevent Internet users accessing websites that offer counterfeit goods… [and] looking to establish a precedent that can be used to persuade courts in other jurisdictions where the registries are less cooperative.

It’s worth noting that Richemont has applied for 13 dot-brands under ICANN’s new gTLD program and that Graham is often the face of the applications at conferences and such.

Pretty soon Richemont will also be a domain name registry. We seem to be looking at two prongs of its brand protection strategy here.

According to the company’s suit, the 12 domains in question all had bogus Whois information and were all being used to sell bogus Cartier goods.

None of them used a Cartier trademark in the domain — this is explicitly about the contents of web sites, not their domains names — and Cartier says most appeared to be registered to people in China.

Rather than submitting a Whois inaccuracy complaint with Nominet — which could have led to the domains being suspended for a breach of the terms of service — Cartier decided to sue instead.

Graham actually gave Nominet’s lawyers over a week’s notice that the lawsuit was incoming, writing his letter (pdf) on October 22 and filing the complaint (pdf) with the courts November 4.

Cartier seems to have grown frustrated playing whack-a-mole with bootleggers who cannot be traced and just pop up somewhere else whenever their latest web host is persuaded to cut them off.

Graham’s letter, which comes across almost apologetic in its cordiality when compared to the usual legal threat, reads:

Cartier therefore believes the most cost effective and efficient way to disrupt access to the Counterfeiting Websites operating in the UK is to seek relief from you, as the body operating the registry of .uk domain names.

Armed with the foreknowledge provided by the letter, Nominet reviewed the Whois records of the domains in question, found them lacking, and suspended the lot.

Ten were suspended before Cartier sued, according to Nominet. Another expired before the suit was filed and was re-registered by a third party. A fourth, allegedly registered to a German whose scanned identity card was submitted as evidence by Nominet, was suspended earlier this month.

As such, much of Nominet’s defense (pdf) relies upon what seems to be a new and obscure legal guideline, the “Practice Direction on Pre-Action Conduct”, that encourages people to settle their differences without resorting to the courts.

Nominet’s basically saying that there was no need for Cartier to sue, because it already has procedures in place to deal with counterfeiters using fake Whois data.

Also offered in the defense are the facts that suspending a domain does not remove a web site, that Nominet does not operate web sites, and the following:

Nominet is not at liberty under its Terms and Conditions of Domain Name Registration to suspend .uk domain names summarily upon mere receipt of a demand from someone unconnected with the domain name registrant.

That seems to me to be among the most important parts of the defense.

If Cartier were to win this case, it may well set a precedent giving registries (in the UK at least, at first) good reason to cower when they receive dodgy take-down orders from multibillion-dollar brands.

Indeed, that seems to be what Cartier is going for here.

Unfortunately, Nominet has a track record of at least accelerating the takedown of domains based on nothing more than third-party “suspicion”. Its defense actually admits this fact, stating:

Inaccurate identity and contact information generally leads to the suspension of a domain within three weeks. Where suspicions of criminality are formally confirmed by a recognised law enforcement agency, suspension may be very significantly expedited.

I wonder if this lawsuit would have happened had Nominet not been so accommodating to unilateral third-party take-down notices in the past.

In a statement to members today, a copy of which was sent to DI, Nominet encouraged internet users to report counterfeiting web sites to the police if and when they find them.