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States drop IANA transition block lawsuit

Kevin Murphy, October 17, 2016, Domain Policy

Four US states attorneys general have quietly thrown in the towel in their attempt to have the IANA transition blocked.

The AGs of Texas, Nevada, Arizona and Oklahoma unilaterally dropped their Texas lawsuit against the US government on Friday, court records show.

A filing (pdf) signed by all four reads simply:

Plaintiffs hereby provide notice that they are voluntarily dismissing this action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

That basically means the case is over.

The AGs had sued the US National Telecommunications and Information Administration, seeking an eleventh-hour restraining order preventing the IANA transition going ahead.

The TRO demand was comprehensively rejected, after ICANN and organizations representing numerous big-name technology companies let their support for the transition be known in court.

The plaintiffs had said they were considering their options, but now appear to have abandoned the case.

It was widely believed that the suit was politically motivated, an attempt by four Republican officials to stir up anti-Obama sentiment in the run-up to the US presidential election.

Judge says IANA transition suit unlikely to succeed

Kevin Murphy, October 4, 2016, Domain Policy

A Texas judge refused demands for a temporary restraining order preventing the IANA transition going ahead last weekend because the suing state attorneys general were unlikely to succeed at trial.

That was one of several reasons Judge George Hanks refused the TRO, which had been requested by the Republican AGs of Texas, Arizona, Oklahoma and Nevada.

Hanks’ order on the motion, which was published last night (pdf), said the AGs:

have not shown that there is a substantial likelihood that they will prevail on the merits of this case. Nor have they shown that there is a substantial threat that an irreparable injury will be suffered. Nor have they shown that the threated injury outweighs the threatened harm to the United States. Finally, they have not shown that granting the injunction will not disserve the public interest.

The lawsuit claims that the IANA transition, which involves the US government removing itself from its oversight roles of ICANN and DNS root zone management, represents a threat to free speech and to the stability of the .mil and .gov TLDs.

The eleventh-hour complaint was filed on Thursday, after attempts by Senator Ted Cruz and his allies to block the transition via a Congressional funding bill failed.

But Hanks ruled that the AGs claims about potential future harms amounted to no more than “speculation” and “hearsay”.

He wrote: “counsel’s statements of what ‘might’ or ‘could’ happen are insufficient to support the extraordinary relief sought in this case.”

He also pointed to one significant logical inconsistency in their argument:

Even if the Court were to find that some past harm or bad acts by the Internet Corporation for Assigned Names and Numbers (“ICANN”) impacted the interests of the States in their respective websites and alleged rights at interest, the Court notes that these past harms happened under the exact regulatory and oversight scheme that the States now seek to preserve. This, along with the lack of evidence regarding any predictable or substantially likely events, greatly undermines the States’ request for they relief they seek.

The AGs are reportedly considering their options following the ruling, and may appeal.

But another school of thought holds that the suit was largely a political gesture designed to creating talking points for the Republican party ahead of next month’s presidential election, and could be allowed to fade away.

Root hits 1,500 live TLDs as US oversight ends

Kevin Murphy, October 4, 2016, Domain Registries

The DNS root saw its 1,500th concurrent live TLD come into existence on Friday, just hours before the US relinquished its oversight powers.

Amazon received its delegation for .通販 (.xn--gk3at1e, Japanese for “online shopping”) and satellite TV company Hughes got .dvr, meaning “digital video recorder”.

That took the number of TLDs in the root to exactly 1,500, which is where it still stands today.

Both went live September 30, which was the final day of ICANN’s IANA contract with the US National Telecommunications and Information Administration, which expired that night.

An ICANN spokesperson confirmed that the two new gTLDs “were the last ones requiring NTIA’s approval.”

From now on, the small clerical role NTIA had when ICANN wanted to make changes to the root is no more.

The fact that it hit a nice round number the same day as ICANN oversight switched to a community-led approach is probably just a coincidence.

Amazon’s .通販 was almost banned for being too confusingly similar to “.shop”, but that ludicrous decision was later overturned.

Hughes’ .dvr was originally intended as a single-registrant “closed generic”, but is now expected to operate as a restricted but multi-registrant space.

Breaking: Judge rules ICANN handover will happen!

Kevin Murphy, September 30, 2016, Domain Policy

We Win! The IANA transition is set to go ahead after a Texas judge ruled in favor of the US Federal government tonight.

Here’s the judge’s decision (pdf)

Larry Strickling, assistant secretary at the National Telecommunications and Information Administration, released the following brief statement early October 1:

The federal court in Galveston, Texas denied the plaintiffs’ application for declaratory and injunctive relief. As of October 1, 2016, the IANA functions contract has expired.

The US had been sued at the eleventh hour by four state attorneys general, who claimed that allowing ICANN to go independent would, among other things, put free speech at risk.

The judge evidently disagreed, though his full decision has not yet been made available.

ICANN chair Steve Crocker released this statement:

This transition was envisioned 18 years ago, yet it was the tireless work of the global Internet community, which drafted the final proposal, that made this a reality. This community validated the multistakeholder model of Internet governance. It has shown that a governance model defined by the inclusion of all voices, including business, academics, technical experts, civil society, governments and many others is the best way to assure that the Internet of tomorrow remains as free, open and accessible as the Internet of today.

Akram Atallah, president of ICANN’s Global Domains Division, tweeted this:

The transition, in broad terms, means the US no longer holds a special role in managing the DNS root.

Now, instead of having to rely on vague threats from the NTIA to keep ICANN in line, the global internet community will get new powers to challenge ICANN decisions.

ICANN handover in jeopardy as Texas leads lawsuit against US government

Kevin Murphy, September 29, 2016, Domain Policy

The state attorneys general of Texas, Arizona, Nevada and Oklahoma have sued the US Federal government to stop tomorrow’s planned IANA transition.

The 11th-hour suit seeks a court declaration that the transition would be unconstitutional and a temporary restraining order forcing the National Telecommunications and Information Administration to continue its oversight role.

It’s rooted in the conspiracy theories championed by the likes of Texas Senator Ted Cruz, who holds that allowing the NTIA to stop authorizing DNS root modifications is akin to handing broad internet censorship powers to Russia, China and Iran.

“Trusting authoritarian regimes to ensure the continued freedom of the internet is lunacy,” Texas Attorney General Ken Paxton said in a press release, losing about a thousand credibility points.

“The president does not have the authority to simply give away America’s pioneering role in ensuring that the internet remains a place where free expression can flourish,” he said.

The AGs reckon the remaining root zone partners, ICANN and Verisign, which are not bound by the First Amendment, could crack down on free speech.

The complaint states:

NTIA intends to delegate its approval authority over changes to the root zone file to ICANN and Verisign, and give these companies unbridled discretion to make changes to that file, with no substantive constraints on their decisions to grant or deny requests to alter the file that effectively enable or prohibit speech on the Internet.

Without the federal government approval authority, ICANN and Verisign have complete discretion to engage in this type of discrimination, and because these entities are private, citizens and States will not be able to use the democratic process

Citing the Property Clause of the U.S. Constitution, the AGs claim that the government does not have the authority to legally remove itself from oversight of the DNS root zone.

The DNS root is US property that cannot be disposed of without an act of Congress, the complaint alleges:

The Authoritative Root Zone File, the Internet Domain Name System as a whole, the exclusive right to approve changes to the root zone file, and the contracts NTIA administers in exercising control over them are property of the United States

The US Government Accountability Office told Cruz earlier this month that it was “doubtful” that it the transition requires the disposal of any US government property, in this report (pdf).

The AGs also reckon that if the US is no longer involved in root zone management, ICANN could delete .mil and .gov or transfer them to third parties.

The IANA contract between ICANN and NTIA is due to expire tomorrow night, ushering in a new era in which the global internet community becomes the back-stop preventing ICANN abusing its powers for Evil.

Cruz has been fighting against the transition for reasons best known to himself for months.

Most recently, he led an attempt to have a block on the transition included in a US federal funding bill, which wound up being passed yesterday with no such clause attached.

The four-state AG complaint can be read here (pdf).

Destroy ICANN! Destroy ICANN with missiles!

Kevin Murphy, September 20, 2016, Domain Policy

The year is 2016. The Kenyan Muslim president of the United States is poised to hand over control of the internet to the United Nations in an attempt to silence lunatic conspiracy theorists Matt Drudge and Alex Jones for good.

But you can help, by engaging in missile warfare with ICANN and the UN.

That’s the deranged premise of ICANN Command, a little browser game that appeared online this week.

It’s a knock-off of the 1980 Atari classic Missile Command. The intro reads:

You will be defending actual Internet domains from UN attack! Launch surface-to-air missiles in time to destroy UN Domain Seeking Missiles. If a UN missile reaches a domain, that domain is lost forever.

Or, call your senator right now!

This related video explains more.

It’s obviously been inspired by the anti-Obama rhetoric of Senator Ted Cruz and Wall Street Journal op-eds of L Gordon Crovitz, which have fed a fringe right-wing conspiracy theory that sees the UN taking control of the internet come October 1.

That’s the date the US government proposes to remove itself from its oversight role in ICANN’s IANA functions.

After that, ICANN will be overseen by a new multistakeholder process in which everybody, not the UN, has a voice.

InfoWars.com and DrudgeReport.com are safe, sadly.

You can check out the game here if you wish. I scanned it for viruses and mind-control rays and it seems safe.

Correction: what NTIA said about .com pricing

Kevin Murphy, September 5, 2016, Domain Registries

The US government has not confirmed that it expects to keep Verisign’s .com registry fee capped at the current level until at least 2024, despite what DI reported on Monday.

At this URL we published an article reporting that the US government had confirmed that it was going to keep .com prices frozen at $7.85 for the next eight years.

That was based on a misreading of a letter from the Department of Commerce to Senator Ted Cruz and others, which merely explained how the price cap could be maintained without expressing a commitment to do so.

The letter actually said very little, and nothing of news value, so I thought it best to simply delete the original piece and replace it with this correction.

I regret the error.

Thanks to those readers who got in touch to point out the mistake.

US claims option to delay IANA transition as Cruz launches free speech doomsday clock

Kevin Murphy, September 1, 2016, Domain Policy

The US government has told ICANN that it may extend the current IANA functions contract for a year, should something unexpected happen this month.

The National Telecommunications and Information Administration wrote to ICANN (pdf) yesterday, to provide “preliminary notice” that it could extent the contract until September 30, 2017, if a “significant impediment” should occur before October 1, 2016.

It appears to be a formality. NTIA said:

the department intends to allow the IANA functions contract to expire as of October 1, 2016, barring any significant impediment. This notice preserves the Government’s rights under the contract during this interim period should there be a change in circumstance.

Under the contract, NTIA is allowed to extend the term for another year in the last 15 days of the current term, but it has to give 30 days notice to ICANN if it wants to do so.

NTIA assistant secretary Larry Strickling told ICANN (pdf) a couple weeks ago that it plans to allow the IANA contract to expire — thereby removing NTIA’s piddling influence in root zone management — October 1.

But the move is facing continued criticism from increasingly unhinged elements of the American political right, who have got it into their heads that the transition means Russia and China will be able to take over ICANN and crush free speech online.

The campaign has been spearheaded by Senator Ted Cruz and whoever pulls the strings of Wall Street Journal columnist L Gordon Crovitz, and has roped in a multitude of hard-right think-tanks.

The latest publicity push for the campaign saw Cruz yesterday launch a countdown clock on its Senate web page.

Countdown

Cruz’s site states:

If that proposal goes through, countries like Russia, China, and Iran could be able to censor speech on the Internet, including here in the U.S. by blocking access to sites they don’t like.

None of that is true, needless to say.

But the anti-transition sentiment is strong enough that it’s not impossible that there will be a “significant impediment” to the transition before October 1 — a legal injunction against the Federal government, perhaps — and the extension will enable ICANN to run IANA under the current regime for another year.

Industry lays into Verisign over .com deal renewal

Kevin Murphy, August 15, 2016, Domain Registries

Some of Verisign’s chickens have evidently come home to roost.

A number of companies that the registry giant has pissed off over the last couple of years have slammed the proposed renewal of its .com contract with ICANN.

Rivals including XYZ.com (sued over its .xyz advertising) and Donuts (out-maneuvered on .web) are among those to have filed comments opposing the proposed new Registry Agreement.

They’re joined by business and intellectual property interests, concerned that Verisign is being allowed to carry on without implementing any of the IP-related obligations of other gTLDs, and a dozens of domainers, spurred into action by a newsletter.

Even a child protection advocacy group has weighed in, accusing Verisign of not doing enough to prevent child abuse material being distributed.

ICANN announced last month that it plans to renew the .com contract, which is not due to expire for another two years, until 2024, to bring its term in line with Verisign’s contracts related to root zone management.

There are barely any changes in the proposed new RA — no new rights protection mechanisms, no changes to how pricing is governed, and no new anti-abuse provisions.

The ensuing public comment period, which closed on Friday, has attracted slightly more comments than your typical ICANN comment period.

That’s largely due to outrage from readers of the Domaining.com newsletter, who were urged to send comments in an article headlined “BREAKING: Verisign doubles .COM price overnight!”

That headline, for avoidance of doubt, is not accurate. I think the author was trying to confer the idea that the headline could, in his opinion, be accurate in future.

Still, it prompted a few dozen domainers to submit brief comments demanding “No .com price increases!!!”

The existing RA, which would be renewed, says this about price:

The Maximum Price for Registry Services subject to this Section 7.3 shall be as follows:

(i) from the Effective Date through 30 November 2018, US $7.85;

(ii) Registry Operator shall be entitled to increase the Maximum Price during the term of the Agreement due to the imposition of any new Consensus Policy or documented extraordinary expense resulting from an attack or threat of attack on the Security or Stability of the DNS, not to exceed the smaller of the preceding year’s Maximum Price or the highest price charged during the preceding year, multiplied by 1.07.

The proposed amendment (pdf) that would extend the contract through 2024 does not directly address price.

It does, however, contain this paragraph:

Future Amendments. The parties shall cooperate and negotiate in good faith to amend the terms of the Agreement (a) by the second anniversary of the Effective Date, to preserve and enhance the security and stability of the Internet or the TLD, and (b) as may be necessary for consistency with changes to, or the termination or expiration of, the Cooperative Agreement between Registry Operator and the Department of Commerce.

The Cooperative Agreement is the second contract in the three-way relationship between Verisign, ICANN and the US Department of Commerce that allows Verisign to run not only .com but also the DNS root zone.

It’s important because Commerce exercised its powers under the agreement in 2012 to freeze .com prices at $7.85 a year until November 2018, unless Verisign can show it no longer has “market power”, a legal term that plays into monopoly laws.

So what the proposed .com amendments mean is that, if the Cooperative Agreement changes in 2018, ICANN and Verisign are obligated to discuss amending the .com contract at that time to take account of the new terms.

If, for example, Commerce extends the price freeze, Verisign and ICANN are pretty much duty bound to write that extension into the RA too.

There’s no credible danger of prices going up before 2018, in other words, and whether they go up after that will be primarily a matter for the US administration.

The US could decide that Verisign no longer has market power then and drop the price freeze, but would be an indication of a policy change rather than a reflection of reality.

The Internet Commerce Association, which represents high-volume domainers, does not appear particularly concerned about prices going up any time soon.

It said in its comments to ICANN that it believes the new RA “will have no effect whatsoever upon the current .Com wholesale price freeze of $7.85 imposed on Verisign”.

XYZ.com, in its comments, attacked not potential future price increases, but the current price of $7.85, which it characterized as extortionate.

If .com were put out to competitive tender, XYZ would be prepared to reduce the price to $1 per name per year, CEO Daniel Negari wrote, saving .com owners over $850 million a year — more than the GDP of Rwanda.

ICANN should not passively go along with Verisign’s selfish goal of extending its unfair monopoly over the internet’s most popular top-level domain name.

Others in the industry chose to express that the proposed contract does not even attempt to normalize the rules governing .com with the rules almost all other gTLDs must abide by.

Donuts, in its comment, said that the more laissez-faire .com regime actually harms competition, writing:

It is well known that new gTLDs and now many other legacy gTLDs are heavily vested with abuse protections that .COM is not. Thus, smaller, less resource-rich competitors must manage gTLDs laden (appropriately) with additional responsibilities, while Verisign is able to operate its domains unburdened from these safeguards. This incongruence is a precise demonstration of disparate treatment, and one that actually hinders effective competition and ultimately harms consumers.

It points to numerous statistics showing that .com is by far the most-abused TLD in terms of spam, phishing, malware and cybersquatting.

The Business Constituency and Intellectual Property Constituency had similar views about standardizing rules on abuse and such. The IPC comment says:

The continued prevalence of abusive registrations in the world’s largest TLD registry is an ongoing challenge. The terms of the .com registry agreement should reflect that reality, by incorporating the most up-to-date features that will aid in the detection, prevention and remediation of abuses.

The European NGO Alliance for Child Safety Online submitted a comment with a more narrow focus — child abuse material and pornography in general.

Enasco said that 41% of sites containing child abuse material use .com domains and that Verisign should at least have the same regulatory regime as 2012-round gTLDs. It added:

Verisign’s egregious disinterest in or indolence towards tackling these problems hitherto hardly warrants them being rewarded by being allowed to continue the same lamentable
regime.

I couldn’t find any comments that were in unqualified support of the .com contract renewal, but the lack of any comments from large sections of the ICANN community may indicate widespread indifference.

The full collection of comments can be found here.

NTIA gives nod to IANA transition

Kevin Murphy, June 9, 2016, Domain Policy

The US National Telecommunications and Information Administration has formally thrown its weight behind the community-led proposal that would remove the US government, itself in effect, from DNS root oversight.

Assistant secretary Larry Strickling held a press conference this afternoon to confirm the hardly surprising development, but dodged questions about a Republican move to scupper the plan in Congress.

The IANA transition plan, which was developed by the ICANN community over about two years, meets all the criteria NTIA had set out in its surprise 2014 announcement, Strickling confirmed.

Namely, NTIA said in a press release that the the plan would:

  • Support and enhance the multistakeholder model;
  • Maintain the security, stability, and resiliency of the Internet DNS;
  • Meet the needs and expectations of the global customers and partners of the IANA services; and
  • Maintain the openness of the Internet.

Probably more importantly, NTIA agrees with everyone else that the plan does not replace NTIA’s role with more government meddling.

US Sen. Ted Cruz and Rep. Sean Duffy see things differently. They yesterday introduced the Protecting Internet Freedom Act, which would stop the transition going ahead.

Strickling said that NTIA has been talking to Congress members about the transition, but declined to “speculate” about the new bill’s likelihood of success.

“We’ve been up on the Hill doing briefings and will continue to do so with any member that wants to talk to us,” he said.

Currently, NTIA is forbidden by law from spending any money on the transition, but that prohibition expires (unless it is renewed) at the end of the current federal budget cycle.

The plan is to carry out the transition after that, Strickling said.

The current IANA contract expires September 30. It may be extended, depending on how quickly ICANN and Verisign proceed on their implementation tasks.