ICANN has posted their Public Comment Summary Report of the Proposed Renewal of the Registry Agreement for .NET. Once again, it is another sham review of the submissions of the public.
Not only do they dismiss comments and concerns relating to the changes in the RRA, which we wrote about extensively. ICANN staff went even further, and LIED about past comment submissions! At the bottom of page 13, they wrote:
“In none of the prior processes were concerns raised by registrars or community members”, ICANN claimed! (final sentence in the snippet above)
However, this is demonstrably false, an outright lie. In our comment submission regarding the .COM RRA of February 14, 2020 as part of Amendment #3, we wrote in sections 11 and 12:
11. We also object to the major changes to the .COM Registry-Registrar Agreement (starting from page 47 of
https://www.icann.org/sites/default/files/tlds/com/com-proposed-amend-3-03jan20-en.pdf for those who didn’t read that far!). Without mentioning all sections
(we object to all the changes, out of an abundance of caution), we point out that the new language in section 2.7 is dangerous, potentially allowing Verisign the ability to override decisions by registrars as to how to handle various situations, which can result in
elimination of due process for registrants. For example, 2.7(b) refers to:“any legal order or subpoena of ****any government*****, administrative or governmental authority, or court of competent jurisdiction,” (emphasis added)
which is not acceptable! For example, if this language is not modified, then it says that if a government from Cuba, North Korea, Iran or other totalitarian regime tells Verisign to transfer ownership of sites owned by my company, such as Math.com or FreeSpeech.com to
their control, Verisign can go along! Or, why stop there? Why not allow Verisign to shut down Google.com, if the government of Iran or Turkey or Russia asks for it? Why bother with a shutdown — suppose a government in one of those regimes orders the actual transfer of a
domain name such as Google.com or Sex.com or School.com or Apple.com or Amazon.com or Microsoft.com?Again, why stop there? A “crafty” government seeking to profit economically, say in a banana republic, can pass a law to say that they want all dictionary-word dot-coms, 2-letter and 3-letter dot-coms and other valuable domain names to be transferred to them! That’s many billions of dollars worth of digital assets, all for the taking — if those banana republics can sell passports, citizenship, their entire ccTLDs, and engage in other dubious activities, why wouldn’t they be
incentivized to simply pass laws to order the transfer of an $872 million domain like Cars.com?
https://www.dnacademy.com/the-definitive-guide-to-the-worlds-largest-domain-saleThis is unacceptable. Registrants have an expectation that they will be governed by the laws of the jurisdictions in which they are based (or that of the registrar), and due process considerations demand that
this continues.All of the changes to section 2.7(b) should be eliminated. For example, why single out “copyright infringement” — why not criminal activity by banks such as Barclays?
http://www.circleid.com/posts/20150520_should_barclays_lose_the_barclays_top_level_domain/
Or patent violations by Apple?
https://www.theverge.com/2020/1/29/21114325/apple-broadcom-caltech-lawsuit-jury-award-1-1-billion-damages
Even Google has an active case involving alleged copyright infringements with Oracle:
https://en.wikipedia.org/wiki/Google_v._Oracle_America
If Google loses that case (now before the Supreme Court), why shouldn’t they lose all of their domains, under the literal interpretation of the proposed Section 2.7(b)? It’s clear to us that Section 2.7(b) is dangerous because it would only be selectively enforced. I doubt Google or Youtube has much to fear from Verisign,
despite all the copyright infringement that takes place on their domains. But, by the strict language of that contract, conceivably they *should* be afraid. Instead, it’ll be more vulnerable entities who would lose their domains, without proper due process. No one should have that power, except proper courts (in the proper
jurisdictions, not “any jurisdiction”). Contracts should be read as to what’s possible, and what’s proposed here is potentially extremely dangerous.12. The new language in Section 2.14 reinforces 2.7(b), and also must be eliminated, for the reasons above.
This was not hidden from ICANN. In fact, our own comment submission, on page 1, directly linked to that past comment! And we even included it as Appendix 1 of our latest comment submission! We even reiterated and highlighted this, stating on page 11 of our recent submission:
We were likely the only company that addressed the issue in the 2000 comment period, via our own comment submission (see Appendix 1, sections 11 and 12). ICANN ignored that input in 2000, and slipped through changes that only now are being widely recognized as being unacceptable.
Thus, it’s an outright lie that no one raised the issue before, as they allege in the public comment summary.
Furthermore, ICANN staff completely misunderstood our comments (and those of others) related to reserved names (section 2 of our comment submission, pages 7-9). ICANN staff’s flawed analysis is section number 7 on pages 18-19 of the summary of comments. We made it clear in our comments that removal of part of the text would have serious consequences (it was likely intended only to remove the “or (ii) located at http://data.iana.org/TLD/tlds-alpha-by- domain.txt” portion, and not the remaining “for initial (i.e., other than renewal) registration at the second level within the TLD” portion, which was still important to keep! ICANN staff completely missed the point of the entire comment. Alex Lerman made the same point in his comment submission, stating:
ICANN needs to clarify the intent behind the revisions made to Section 3.1(d) and, if necessary, revert to the original language if the intention was solely to prohibit new registrations of reserved strings rather than the renewal of already registered strings that would otherwise be prohibited due to their inclusion in Appendix 6.
The Internet Commerce Association made the same point in their comment submission, on the last page:
Reserved Domain Names
At Section 3.1(d)(i) of the Proposed Registry Agreement, the intent of the revisions is somewhat unclear. In particular, as a result of the removal of the word “initial”, it is somewhat unclear whether the intent of the proposed revisions is to prohibit registrations of certain reserved TLD strings or whether the intent is to prohibit the registration and even the renewal of already registered strings in the TLD that would otherwise be prohibited as a result of inclusion in Appendix 6.ICA RECOMMENDATION 8:
The ICA recommends that ICANN clarify the intention of the revisions to Section 3.1(d) and if necessary revert to the original language if the intention was to only prohibit new registrations of reserved strings rather than the renewal of already registered strings that would otherwise be prohibited as a result of inclusion in Appendix 6.
ICANN staff didn’t highlight these separate submissions by Alex Lerman or the Internet Commerce Association.
Again, this was about ensuring that domains can continue to be renewed, even if they’re on the reserved list. ICANN staff needs to fix this language, before it is placed into a new contract with severe negative consequences for registrants.
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