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US “threatens” Costa Rica over Pirate Bay domains

Kevin Murphy, June 16, 2017, Domain Policy

The US government has been threatening to “close down” Costa Rica’s .cr registry over its refusal to take down a Pirate Bay domain name, according to the registry.

Representatives of the US embassy in Costa Rica have been badgering NIC.cr to take down thepiratebay.cr since 2015, according to a letter from Pedro León Azofeifa, president of Academia Nacional de Ciencias, which runs the registry.

The letter claims:

These interactions with the United States Embassy have escalated with time and include great pressure since 2016 that is exemplified by several phone calls, emails and meetings urging our ccTLD to take down the domain, even though this would go against our domain name policies

According to the letter, a US official “has mentioned threats to close our registry, with repeated harassment regarding our practices and operation policies and even personal negative comments directed to our Executive Director”.

The letter was sent to the chair of ICANN’s Governmental Advisory Committee 10 days ago, CC’d to senior ICANN, Costa Rican and US governmental figures, and has been circulated this week in the Latin American domain name community.

The form of the alleged threats to close the registry is not clear, but it should be noted that prior to October 1 last year the US Department of Commerce, via its now-relinquished oversight of ICANN, played a key role in the administration of the DNS root zone.

The Pirate Bay is of course a popular directory of BitTorrent links largely used to disseminate pirated copies of movies and music, much of it American-made.

The site has been TLD-hopping for years, as registries around the world shut down its domains for violations of their own local rules. It has been live on thepiratebay.cr since December 2014, when its Swedish operation was shut down by authorities.

The NIC.cr letter says that its own policies follow international “best practices” and allow it to take down domains when presented with a Costa Rican court order, but that “the pressure and harassment [from the US] to take down the domain name without its proper process and local court order persists”.

The US Department of Commerce even pressured its Costa Rican counterpart to investigate NIC.cr, but that probe concluded that the registry was acting within its procedures, according to the letter.

It’s not the first attempt to get rid of the Pirate Bay this year.

Public Interest Registry in February announced a “UDRP for copyright” proposal that would allow copyright holders to have piracy disputes heard by independent arbitrators. It looked like a way to get unloved thepiratebay.org domain taken down without PIR having to take unilateral action.

That proposal was shelved after an outcry from the industry and civil rights watchdogs.

In April, one of the Pirate Bay’s founders launched a piracy-friendly domain registration service.

Just this week, the European Court of Justice ruled, after seven years of legal fights, that the Pirate Bay infringes copyright, raising the possibility of the site being blocked in more European countries.

The NIC.cr letter is dated June 6. It has not yet been published by ICANN or the GAC.

Trump nominee open to retaking ICANN oversight role

Kevin Murphy, January 19, 2017, Domain Policy

The incoming head of the US Department of Commerce has indicated that it is unlikely he’ll try to reestablish the US government’s unique oversight of ICANN, at least in the short term.

But at his confirmation hearing in Congress yesterday, Trump nominee for secretary of commerce Wilbur Ross said he’d be open to ideas about how the US could increase its power over ICANN.

He was responding to a question from Ted Cruz, the Texas senator who made halting the IANA transition one of his key concerns last year.

Cruz, framing the question in such a way as to suggest ICANN is now in the hands of an intergovernmental consortium (which it is not) asked Ross whether he was committed to preventing censorious regimes using ICANN to hinder Americans’ freedom of speech.

Ross replied:

As such a big market and really as the inventors of the Internet, I’m a little surprised that we seem to be essentially voiceless in the governance of that activity. That strikes me as an intellectually incorrect solution. But I’m not aware of what it is that we actually can do right now to deal with that. If it exists, if some realistic alternative comes up, I’d be very interested.

His response also mischaracterizes the power balance post-transition.

The US is not “essentially voiceless”. Rather, it has the same voice as every other government as a member of the Governmental Advisory Committee.

Its role is arguably still a lot more powerful than other nations, given that ICANN is now bylaws-bound to remain headquartered in California and under US jurisdiction.

As head of Commerce, Ross will have authority over the National Telecommunications and Information Administration, the agency most directly responsible for dealing with ICANN and domain name issues in general.

NTIA itself will to the best of my knowledge still be headed by assistant secretary Larry Strickling, who handled the IANA transition from the US government side. (UPDATE: this may not be correct)

Ross, 79, is a billionaire investor who made most of his estimated $2.5 billion fortune restructuring bankrupt companies in the coal and steel industries.

Chehade to face Congressional grilling this week

Kevin Murphy, February 23, 2015, Domain Policy

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.

Unanimous support for new ICANN appeals process

Kevin Murphy, June 30, 2014, Domain Policy

The Generic Names Supporting Organization has issued an “unprecedented” statement of “unanimous” support for a new way for ICANN community members to appeal ICANN decisions.

All seven constituency groups signed onto a statement that was read by representatives of registries, non-commercial users and intellectual property interests at the ICANN 50 public forum last week.

“It only took us 50 meetings, but I think the rarity of what you’re witnessing this afternoon sends a very strong message about our views,” the Registries Stakeholder Group’s Keith Drazek said.

This is the meat of the demand:

The entire GNSO joins together today calling for the Board to support community creation of an independent accountability mechanism that provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community.

Rafik Dammak of the Non-Commercial Users Constituency added that the creation of such a mechanism is “a necessary and integral element of the IANA stewardship transition.”

“The Board’s decisions must be open to challenge and the Board cannot be in a position of reviewing and certifying its own decisions,” he said.

“We need an independent accountability structure that holds the ICANN Board, Staff, and various stakeholder groups accountable under ICANN’s governing documents, serves as an ultimate review of Board/Staff decisions,” said Kristina Rosette of the Intellectual Property Constituency.

What they’re basically looking for is a third way to appeal ICANN decisions beyond the existing Independent Review Process and Request for Reconsideration mechanisms.

IRP is considered too time-consuming and expensive for anyone other than well-funded commercial stakeholders. It cost ICM Registry millions in legal fees to win its IRP in 2010.

RfR, meanwhile, sees the ICANN board review its own decisions, and is only successful (in 15 years it’s only happened once, a week ago) when a requester can bring new evidence to the table.

What the GNSO seems to be looking for is a third way — independent review of ICANN decisions that doesn’t cost a bomb and can be used to reexamine decisions on the merits.

In many ways the demand represents the low-hanging fruit of the amorphous “accountability” discussion that took place at length at the London meeting last week.

ICANN accountability is being examined simultaneously with the proposed transition of the IANA stewardship functions from the US Department of Commerce to a yet-undefined mechanism.

There seems to be broad community consensus that the transition should be linked to improvements in accountability.

During the “constituency day” sessions on Tuesday, during which the ICANN board visits in turn with each GNSO constituency, accountability was the theme common to each and every session.

Time and again, CEO Fadi Chehade pushed the constituency he was addressing to provide some specifics.

“What is accountability and how accountable are we today?” he asked the RySG. “Who are we accountable to for what? We need to get precise before you ask us to answer a question that says when you finish accountability, then you can move to the transition.”

The GNSO statement two days later, which still needs fleshing out with details, appears to be the first step toward providing the precision Chehade wants.

Chehade said multiple times that the accountability review and the IANA transition discussions are “interrelated” but not “interdependent.”

If one were dependent on the other, it would be easier for opponents to stonewall the IANA transition by delaying the accountability review, he said.

“There are people in this community would like the transition from the US government to never happen,” he told the RySG. “They won’t admit it, but there are several, in this room even, who want this to never happen.”

He later told the NCUC that these bogeymen were “not in this room”, highlighting perhaps his belief that one or more gTLD registries is preparing to throw a spanner in the works.

Suspicion immediately fell on Verisign, forcing Drazek to issue a separate statement at the public forum on Thursday denying that the company (his employer) opposes the transition:

VeriSign supports NTIA’s March 14th, 2014 announcement. VeriSign supports NTIA’s four key principles. VeriSign Supports the bottom-up multistakeholder process that is now under way and that we have already been very much engaged. VeriSign supports the target date of September 2015 for transition. We support these things provided the multistakeholder community recommendations for ICANN’s accountability reforms are accepted by NTIA before the final transition, and sufficiently implemented by ICANN subject to measurable deliverables.

It’s not much of a denial, really, more of a clarification of where Verisign stands and confirmation that it wants, as Chehade alluded to, accountability reform prior to the IANA transition.

In my view, accountability is the more important of these two threads.

The Department of Commerce doesn’t actually do much in terms of its hands-on role as steward of the IANA functions as they related to domain names. It merely checks that ICANN’s proper procedures have been followed before signing off on DNS root zone changes.

If sanity prevails in the ICANN community’s transition discussions (and I have no reason to believe it will) whatever replaces the US should be similarly mute and invisible.

However, Commerce’s arguably more important role has been to act as a constant Sword of Damocles, a threat that ICANN could lose its IANA powers if it goes rogue and starts acting (in the US government’s view) against the best interests of the internet community.

That’s a very crude accountability mechanism.

What ICANN needs in future is not a direct replacement of that existential threat, but a mechanism of accessible, independent third-party review that will give the ICANN community and internet users everywhere confidence that ICANN isn’t a loose cannon with its hand on the internet’s tiller.

Verisign stock punished after US move from root control

Kevin Murphy, March 17, 2014, Domain Registries

Verisign’s share price is down around 8% in early trading today, after analysts speculated that the US government’s planned move away from control of the DNS root put .com at risk.

The analyst firm Cowan & Co cut its rating on VRSN and reportedly told investors:

With less US control and without knowledge of what entity or entities will ultimately have power, we believe there is increased risk that VRSN may not be able to renew its .com and .net contracts in their current form.

It’s complete nonsense, of course.

The US announced on Friday it’s intention to step away from the trilateral agreements that govern control of the root between itself, ICANN and Verisign. But that deal has no dollar value to anyone.

What’s not affected, as ICANN CEO Fadi Chehade laboriously explained during his press conference Friday, are the contracts under which Verisign operates .com and .net.

The .com contract, through which Verisign derives most of its revenue, is slightly different to regular gTLD contracts in that the US has the right to veto terms if they’re considered anti-competitive.

The current contract, which runs through 2018, was originally going to retain Verisign’s right to increase its prices in most years, but it was vetoed by the US, freezing Verisign’s registry fee.

So not only has the US not said it will step away from .com oversight, but if it did it would be excellent news for Verisign, which would only have to strong-arm ICANN into letting it raise prices again.

Renewal of the .com and .net contracts shouldn’t be an issue either. The main rationale for putting .com up for rebid was to improve competition, but the new gTLD program is supposed to be doing that.

If new gTLDs, as a whole, are considered successful, I can’t see Verisign ever losing .com.

Verisign issued a statement before the markets opened today, saying:

The announcement by NTIA on Friday, March 14, 2014, does not affect Verisign’s operation of the .com and .net registries. The announcement does not impact Verisign’s .com or .net domain name business nor impact its .com or .net revenue or those agreements, which have presumptive rights of renewal.