Opponents of ICANN plan fear expedited domain takedowns

Just days prior to the expiration of the final Joint Project Agreement between the Internet Corporation for Assigned Names and Numbers and the US Dept. of Commerce, effectively letting the DOC's oversight over ICANN lapse, the CEO of ICANN, Rod Beckstrom, informed ranking Republican members of the House Judiciary Committee and its key Subcommittee on Courts and Competition, that ICANN had no intention of terminating its long-term relationship with the US Government. But Beckstrom's lack of detail in response to a direct question from Reps. Lamar Smith (R - Texas) and Howard Coble (R - N.C.) suggested that neither he nor ICANN was in a mood to extend -- or in the congressmen's words, "memorialize" -- the relationship between the private, non-profit entity in charge of the Internet's Domain Name System (DNS), and the government body that gave rise to it.

"It is important to note that the conclusion of the [Joint Project Agreement] is not a termination of ICANN's relationship with the United States Government," Beckstrom wrote the congressmen (PDF available here, courtesy Domain Name Journal), "nor is ICANN an advocate of that possibility. I am in discussion with the NTIA [division of the DOC] to establish a long-standing relationship to accommodate principles including the beliefs that ICANN should remain a non-profit corporation based in the United States, and should retain an ongoing focus on accountability and transparency."

Congressmen Smith and Coble had formally sent a letter to Beckstrom (PDF available here) on September 15, expressing concern over whether ICANN had finalized its response to objections from the Commerce Dept. and others over its plan to implement new, language-independent global top-level domains (gTLD). Their concern has centered over ICANN's characterization of the system as being driven not by the governments of countries whose native languages would be incorporated into such a system, but rather by a nebulous body of "stakeholders," the fuzzy definition of which was formally incorporated into the Affirmation of Commitments, announced on Wednesday.

The congressmen wrote, "As new gTLDs are created, many businesses fear being forced to defensively register trademarks and variations of their marks to block cybersquatters from illegitimately trading on their good will and to protect consumers from increased incidences of fraud. We note that the absence of price caps in the new registry agreements could mean that legitimate businesses with an established consumer base and Internet presence may be discriminated against and compelled to pay a premium for each new domain name they register or renew."

Coble and Smith went on to note that ICANN did go forth with the establishment of a so-called Implementation Recommendation Team (IRT) -- a group of precisely the class of stakeholders that ICANN has been actively seeking to incorporate. They are mainly the holders of trademarks, and are thus the key customers of registrars commissioned by ICANN to manage existing or new TLDs. Last May, in a demonstration of what the inclusion of multiple stakeholders could contribute to a new and more worldly ICANN, the IRT suggested substituting the organization's current Uniform Domain-Name Dispute-Resolution Policy (UDRP) with an expedited system that would give trademark holders the right to suspend entire Internet domains almost immediately upon request, for a fee possibly as low as $200 per instance.

It's called the Uniform Rapid Suspension System (URS), and opponents of the measure are calling it "UDRP on steroids."

"The IRT recommends that ICANN implement the URS, which would be mandatory for all new...gTLDs, implemented through the new gTLD registry agreements, which would in turn bind registrars supplying new gTLDs to the marketplace," reads the group's May report (PDF available here). "The URS would address cases of abusive use of trademarks where there is no genuine contestable issue as to the infringing or abusive use of a mark in a domain name and in connection with a site that represents abusive use (i.e., not a fair use or commentary situation nor a situation involving questions of whether the registrant is or is not authorized or selling, for example, legitimate, non-counterfeit goods)."

In other words, where trademark infringement seems obvious enough, a trademark holder could simply file an abuse claim, and the claim itself would be all that's necessary to suspend the site. The registration itself would not go away, the IRT points out. "Rather, domain name registrations found to be violating a brand owner's rights will be placed in a frozen state, for the life of the registration, and only will resolve to a specific error Web page."

Under the current UDRP system, a domain holder that is the subject of a complaint may continue to use its domain until the dispute is resolved -- and only then is the use of the domain removed from it, if the resolution is not in its favor. Under URS, the claim itself can get the domain shut off. The holder may then have 14 days to submit a complaint in response, assuming its WHOIS data is accurate.

Beckstrom referred to the IRT's recommendation in his September 15 letter to Reps. Smith and Coble, in an effort to placate their concern that the gTLD program, left unattended to by government oversight, would result in domain name chaos. He went so far as to suggest that URS could intentionally kill the domain name black market, and in so doing, eliminate the incentive among legitimate registrars to hike their prices in preparation of possible defenses of their customers' assets.

"A mechanism for quickly suspending clearly infringing registrations will reduce the incentive for cybersquatters to engage in bad-faith registrations," Beckstrom wrote, "thereby reducing or eliminating the pressure on organizations to make defensive registrations. A reduction in the perceived need to register names defensively will also have the effect of reducing the perceived power of new gTLD registries to charge organizations artificially inflated prices for registrations in order to avoid becoming the target of opportunistic cybersquatters."

However, there were apparently enough vocal opponents of the URS proposal, including independent "stakeholders'" bodies such as the Internet Commerce Association (ICA), to convince ICANN on September 23 -- one week prior to the JPA lapse announcement -- to suspend work on URS, while its key GNSO policy committee reviews those complaints.

As a report to Congress from ICANN Chief Operations Officer Doug Brent that day read, "In order to address concerns that some of the recommended solutions might impinge on existing policies such as the Uniform Domain Name Dispute Resolution Policy (UDRP) or could themselves be the subject of policy development, ICANN will be asking the GNSO to begin an expedited review of some of the recommended solutions in an attempt to reach consensus on an optimal path for launching new gTLDs with robust mechanisms to ensure the protection of legal rights."

Brent went on to warn about the dangers of stalling for too long a period of time -- dangers which he said include adding value to the portfolio of cybersquatters whose holdings depend on the continued monopoly of the dot-com TLD. In raising an objection to that point of view, ICA counsel Philip Corwin let slip one of his own group's cards in his hand: the need to protect the value of the existing system, for stakeholders who have already invested good money in it.

"The value of .com names is based upon the general public perception that .com is by and large the Internet," Corwin wrote, "and whether new gTLDs change that mindset, or so confuse ordinary consumers as to reinforce it and further raise the value of those portfolios, remains to be seen."