Domain Names and the Secret Trans-Pacific Partnership Agreement (TPP)

The US government together with other governments, are by-passing ICANN and the ITU, and entering the realm of direct internet governance of Domain Names and the DNS, through the Trans-Pacific Partnership Agreement--essentially mandating a WHOIS and UDRP (cybersquatting remedies) for all ccTLDs--

Secret Trans-Pacific Partnership Agreement (TPP) - IP Chapter: "...WikiLeaks released the secret negotiated draft text for the entire TPP (Trans-Pacific Partnership) Intellectual Property Rights Chapter. The TPP is the largest-ever economic treaty, encompassing nations representing more than 40 per cent of the world’s GDP. The WikiLeaks release of the text comes ahead of the decisive TPP Chief Negotiators summit in Salt Lake City, Utah, on 19-24 November 2013. The chapter published by WikiLeaks is perhaps the most controversial chapter of the TPP due to its wide-ranging effects on medicines, publishers, internet services, civil liberties and biological patents. Significantly, the released text includes the negotiation positions and disagreements between all 12 prospective member states..."

DNS Policy Notes | Bloomberg BNA: "The text of the TPP's Intellectual Property Chapter calls for signatories to do just two things regarding domain names: (1) provide a cybersquatting remedy [UDRP] for ccTLDs along the lines of the Uniform Domain Name Dispute Resolution Policy and (2) provide a reliable and accurate database of domain name registrants [WHOIS] in the ccTLDs. All of the countries participating in the TPP -- except for Brunei (.bn) -- have what the TPP is looking for... Fast-forward to the May 2014 IP chapter draft. According to WikiLeaks, the cybersquatting provision appears to have been amended to each country's satisfaction:

Article QQ.C.12: {Domain Name Cybersquatting}

1.In connection with each Party's system for the management of its country-code top-level domain (ccTLD) domain names, the following shall be available:

(a) an appropriate procedure for the settlement of disputes, based on, or modeled along the same lines as, the principles established in the Uniform Domain Name Dispute-Resolution Policy, or that is: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation; and

(b) online public access to a reliable and accurate database of contact information concerning domain-name registrants; in accordance with each Party's laws and, or relevant administrator policies regarding protection of privacy and personal data.

2.In connection with each Party's system for the management of ccTLD domain names, appropriate remedies, *shall be available, at least in cases where a person registers or holds, with a bad faith intent to profit, a domain name that is identical or confusingly similar to a trademark.

*It is understood that such remedies may but need not include, for example, revocation, cancellation, transfer, damages, or injunctive relief.

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Cybercrime, Rogue Registrars: Is ICANN Unfit For Internet Governance?

Documents reviewed by The Wall Street Journal show that thousands of complaints about suspicious online pharmacies and other websites in 2012 weren’t reviewed for months because ICANN stopped maintaining one of its computer systems.

Law-enforcement officials told ICANN that the website posed an immediate health risk. Less than 15 minutes later, ICANN responded in an email that the organization had “reviewed and closed your complaint.”

Axelle Lemaire, France’s secretary of state for digital affairs, says the “lack of transparency” at ICANN “is very worrying. When it comes to selling illegal drugs online, it’s the health of world-wide citizens at stake.”

“I don’t know how contractually we could do something different than we are doing,” says Akram Atallah, president of ICANN’s Global Domains Division... Mr. Atallah says employees are “doing a very good job.” ICANN’s overall budget is $101 million for the current fiscal year.

Former Federal Trade Commission Chairman Jon Leibowitz says ICANN needs continued oversight, partly because of its small compliance staff. Just 22 of the agency’s 300 employees are devoted to policing websites. An independent ICANN could be “dangerous for stakeholders, and more importantly, consumers,” says Mr. Leibowitz.

(source of the above: Wall Street Journal)

Update: See the Economist: The Amazons of the dark net and Independent ICANN Could Be Dangerous, Needs Continued Oversight, Says Former FTC Chairman (domainmondo.com)

ExpVC.com Contributing Editor's Opinion:

Here's one truism ICANN has yet to grasp: good governance is hard, but necessary. The Internet's days as a free-wheeling, unregulated marketplace are soon coming to an end. What the end result will look like is yet unknown, but the world re-discovered in 2008 that markets are not self-regulating, and there is a need, and place, for good, effective governance. This applies to the Internet as in all other sectors of public life. Of course, ICANN, a California corporation with no membership nor stockholders, and only a self-interested, self-selected Board of Directors which apparently owes a fiduciary duty only to the corporation itself, not employees nor stakeholders, is anxious to gain independence from all government oversight, without taking on any of the burdens (and costs) inherent in exercising such global authority and responsibilities. Whatever the outcomes of the IANA transition and ICANN enhancing accountability processes, if effective and responsible governance of the DNS and internet root zone, on a global level, from criminal activity is not included (to take just one example), it will not be long before governments throughout the world do whatever is necessary to wrest control of the DNS and internet, globally, or within their respective borders, in order to protect their own populations and public interest from ICANN's "hands-off, just pay me the money" approach to internet governance.

For a view of what real governance within the sphere that ICANN operates, looks like, see this search of US Federal Trade Commission actions. ICANN's source of authority, shield of immunity, and excuse not to govern, has heretofore been its contractual privity with the US government. Once that is gone, from what sovereign source of authority does ICANN have any legitimate claim to exercise authority over the global internet community, domain name registrants, registrars, registries, the DNS, and the internet root zone? No one has really given a good answer to that yet, but it will be a fertile area for litigation worldwide and other international disputes if left unanswered.

And apparently, neither ICANN's President of Global Domains Division (see quote above of Akram Attalah) nor anyone else at ICANN has a clue as to how ICANN, contractually, could do anything differently than it has been doing (or not doing). Perhaps, at a minimum, Mr. Atallah should consult with competent counsel who have FTC, or similar governance and regulatory experience, much of which is based solely on contractual terms.

On the other hand, if you are that clueless, perhaps you are unfit for internet governance.

Submitted by: Contributing Editor, John Poole, Domain Mondo

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ICANN accountability, the public interest, new gTLD domain names

Recently our colleague, John Poole at Domain Mondo, submitted his input to the ICANN enchancing accountability process. In his email, he addressed fundamental issues facing ICANN --

"ICANN asks:

• What issues does the community identify as being core to strengthening ICANN's overall accountability in the absence of its historical contractual relationship to the U.S. Government?
• What should be the guiding principles to ensure that the notion of accountability is understood and accepted globally? What are the consequences if the ICANN Board is not being accountable to the community? Is there anything that should be added to the Working Group's mandate?
• Do the Affirmation of Commitments and the values expressed therein need to evolve to support global acceptance of ICANN's accountability and so, how?
• What are the means by which the Community is assured that ICANN is meeting its accountability commitments?
• Are there other mechanisms that would better ensure that ICANN lives up to its commitments?
• What additional comments would you like to share that could be of use to the ICANN Accountability Working Group?

"Where to start? The central issue and problem at ICANN is how the public interest is so disregarded. Time, and time again, we see examples of this. ICANN's multistakeholder model only contributes to this -- see: http://www.domainmondo.com/2014/05/the-real-problem-with-icann.html . What can ICANN begin to do better? Increase representation of 1) domain name registrants and 2) internet users (often referred to as "consumers") within ICANN, and diminish the presence and voices of those with profit-motives at stake in ICANN decisions, workings and outcomes.

"A real living example of how this plays out within ICANN:

"Is It ICANN's Job To Market New gTLD Domain Names? (go to the foregoing link for the full posting, excerpt follows) --

".... I think it is now clear why the public interest was so disregarded in ICANN's new gTLDs program--

“'The public at large, consumers and businesses, would be better served by no expansion or less expansion' of domains" said Jon Leibowitz, former chairman of the US Federal Trade Commission in the New York Times."

""I really can’t see a legitimate upside where new benefits [of the new gTLDS] outweigh costs, and everyone I mention this to feels the same way. People just shake their heads. It’s all about the money. They [ICANN] are creating these extensions because they can." University of Pennsylvania Wharton School marketing professor Peter Fader, co-director of the Wharton Customer Analytics Initiative. (source: Knowledge@Wharton, emphasis added)

"Esther Dyson On New Top-Level Domains: “There Are Huge Trademark Issues” | TechCrunch: "... we are not running out of domains. This is a “way for registries and registrars to make money,” says Dyson. She also points out that “there are huge trademark issues. I just think it is offensive... It will create a lot of litigation.”" [see: Esther Dyson Told ICANN new gTLDs were a mistake in 2011 (video)]

"Tim Berners-Lee: "....when a decision is taken about a possible new top-level domain, ICANN's job is to work out, in a transparent and accountable manner, whether it is really in the best interest of the world as a whole, not just of those launching the new domain. It also means that ICANN's use of the funds should be spent in a beneficent way..."...."

What are your thoughts on this? Feel free to leave comments below.

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