Anticompetitive and Predatory Misconduct by ICANN and Contracted Parties Must End

On May 26, 2021, I submitted a complaint to ICANN’s Complaints Officer, Krista Papac. In a nutshell, my complaint centers on ICANN’s blatant violation of its Bylaws, specifically Section 2.2, named Restrictions, which expressly prohibits ICANN from acting as a registrar. However, despite the absence of any exceptions to this unambiguous prohibition, ICANN is acting improperly as a registrar for the purposes of warehousing and cybersquatting on certain domain names in the .com and .net registries. 

ICANN has approved an intended auction for at least one of these warehoused domain names, o.com, with the proceeds to be allocated to a secret list of beneficiaries. These circumstances strongly suggest that ICANN, in concert with the .com registry operator and possibly other interests, is seeking to participate in the domain name secondary market for speculative purposes — conduct which is improper, anticompetitive, and prohibited. 

I received a response from Ms. Papac on June 7th, in which she apologized for her delayed response while letting me know that she would be “researching and analyzing” my complaint. She also informed me that my complaint along with any correspondence associated with it was subject to being posted on ICANN’s website for transparency purposes. Transparency serves the public interest — service which ICANN shirks regularly with great enthusiasm, if not reckless abandon. Thus, it comes as no surprise that neither my complaint nor my earlier written correspondence to ICANN’s Board on this same subject have been posted on ICANN’s website. 

However, I sought to assist Ms. Papac’s efforts by responding to her on June 10th with additional information concerning this serious matter involving ICANN misconduct. In addition to providing links to relevant documents, including ICANN’s Bylaws and relevant contractual agreements with the U.S. government that are still in effect (MOUand InterNIC licensing agreement and extension), I also offered additional details of which she may have been unaware but that provide important context.

First, ICANN’s violation of its Bylaws and attempted profiteering with respect to o.com is causing or contributing to a whole host of harmful consequences associated with the aggressive secrecy surrounding the intended beneficiaries from an impending o.com auction. To be crystal clear, a secret list of intended beneficiaries for proceeds generated from an illegitimate auction of an improperly held domain name does not serve the public interest in any way. 

The public interest is further betrayed by the abusive conduct of Verisign — that is, incidentally, also violating my constitutional and civil rights — as they attempt concealing these intended beneficiaries with absurd intellectual property claims. Such predatory and harmful misconduct by the Internet’s dominant registry operator and others targets me for merely raising concerns about ICANN misconduct and for pointing out plainly seen Bylaws violations.

It is worth noting that I am not alone in being targeted, especially when you consider that such behavior by Verisign is nothing new. In September 2016, in the waning days of the IANA transition, a trio of think tank scholars published a white paper raising questions about the wisdom of removing the U.S. government’s accountability tether to ICANN. Following the paper’s publication, Verisign sent a letter to the authors, two of whom were scheduled to give testimony the following day to a U.S. Senate subcommittee hearing examining the transition

During the hearing, Verisign’s letter became an early focus during witness Q&A and was characterized as threatening and witness intimidation. One witness, Berin Szoka of TechFreedom, responded to a question about the letter from the subcommittee’s chairman by saying, “It was, as you say, a threat,” while also explaining that he had never before received such a letter in his years of running a D.C. think tank. 

In the case of ICANN, Bylaws violations also are nothing new. In addition to the Bylaws violation that is the subject of my complaint, a recent Independent Review Panel found that ICANN violated its Bylaws with its handling of another auction, this time for the .web new gTLD. This illustrates that, far from being an outlier, Bylaws violations — particularly related to auctions — have become ICANN’s standard operating procedure. Not to be forgotten is VeriSign’s threatening letter which was driven by concerns raised by the scholars about the .web auction. 

But it shouldn’t be necessary to engage in expensive multi-year procedural efforts to compel ICANN to comply with its Bylaws. This is especially true since, in the same 2016 hearing mentioned earlier, assurances were offered in sworn testimony to Congress by Goran Marby, Becky Burr, Steve Delbianco, Jonathan Zuck, along with others, that Bylaws would safeguard against misconduct and undue outside influence. Each of these individuals are senior leaders of the ICANN organization and/or in the stakeholder community and include ICANN’s CEO, an ICANN Board member, and the longtime policy chair of ICANN’s Business Constituency. Yet, as circumstances now make clear, these assurances from such influential leaders have proven meaningless as ICANN has no need to change its Bylaws when it can simply ignore them.

As someone who contributed materially to the development of the accountability mechanisms currently being flouted brazenly by ICANN in concert with other interests as well as someone who is being harmed both directly and indirectly by ICANN’s misconduct, I am unable to overlook the injury being inflicted upon Internet users, stakeholders, and the public interest by ICANN’s willful disregard of its Bylaws. 

Lastly, it is unacceptable that anybody’s integrity and motives could be impugned or their reputation harmed — as mine continues to be — for the perceived impertinence of questioning such blatant misconduct. Unfortunately, this means that extraordinary measures remain necessary for ending such anticompetitive and predatory misconduct and compelling ICANN’s unconditional compliance with its Bylaws. The U.S. Federal Trade Commission is often-overlooked but is highly like to take more of an active interest under the leadership of newly-appointed chair Lina Khan.