Recently, I have been reporting on a highly questionable auction scheme for a single domain name, o.com, which is currently being improperly warehoused by ICANN along with a number of other .com and .net domain names. This violates ICANN’s Bylaws — but, so what?
Answering that question is helped by revisiting what was said on the record in sworn testimony by several key stakeholders as well as the U.S. government and ICANN itself in the days immediately preceding the completion of the IANA transition.
On September 14, 2016, the U.S. Senate Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts held a hearing titled, “Protecting Internet Freedom: Implications of Ending U.S. Oversight of the Internet,” during which more than one witness offered reassurances to Congress and the American people by holding out ICANN’s Bylaws as the ultimate safeguard against ICANN misconduct.
It is difficult to overstate the emphasis placed by witnesses on “protections” offered by ICANN’s Bylaws. For example, the written statement of Becky Burr contains nearly 40 mentions of the word Bylaws — often used along with words like “enshrined” — that clearly are meant to imply an effective bulwark against ICANN misconduct. Burr is a current ICANN board member and was the Clinton Administration official that signed the Memorandum of Understanding (MOU) upon ICANN’s formation in the 1990s and which is still in effect by virtue of being merged with the InterNIC licensing agreement.
This is relevant because the Bylaws Section 2.2 prohibiting ICANN from acting as a registrar is also contained in the MOU and, therefore, at least one member of ICANN’s Board should be expected to be intimately familiar with the fact that ICANN is not permitted to act as a registrar for any reason and certainly not for warehousing domain names for speculative auctions intended to generate funds for the Internet Society and others.
But in offering uncertain assurances to Congress, the American people, and Internet users everywhere that Bylaws would ensure ICANN accountability, Burr wasn’t alone. Testimony given by Lawrence Strickling, then-Administrator of the National Telecommunications and Information Administration (NTIA), also made multiple references to Bylaws and implying their essential nature for safeguarding accountability. ICANN CEO Goran Marby got into the act by making reference to Bylaws protections 14 times in his written testimony.
Marby also submitted written responses to questions for the record after the hearing. Besides further mentioning Bylaws-as-safeguard another four times, his response also asserted that ICANN “is not, and has never been exempted from antitrust laws.” This claim has been bandied about many times before, including by other witnesses in this hearing as well as in a letter to the Wall Street Journal from ICANN’s general counsel and secretary, John Jeffrey.
However, this trope is absurdly hypocritical, disingenuous and misleading, particularly from Messrs. Marby and Jeffrey, since ICANN regularly attempts defending itself from litigation by arguing, among other things, that it isn’t subject to section 1 of the Sherman Act. Attorneys for Jones Day, ICANN’s longtime outside counsel, argued in an amicus brief filed on behalf of ICANN in litigation between the Coalition for ICANN Transparency (CFIT) and Verisign, that there are “specific defenses unique to ICANN that would foreclose the possibility that ICANN could conspire to violate section 1 of the Sherman Act.”
So, on one hand ICANN has never been exempt from antitrust liability but, on the other hand, attorneys for ICANN argue for unique defenses offering immunity from antitrust laws. Regardless of any legalistic precision, this type of cognitive dissonance makes trust impossible and is conduct unbecoming an organization charged with acting in the public interest. But it is standard operating procedure for ICANN.
In testimony offered by Jonathan Zuck — then-head of ACT: The App Association and influential member of ICANN’s stakeholder community that has participated in the Intellectual Property Constituency (IPC) and, more recently, in the At-Large Advisory Council (ALAC) — he references Bylaws at least 16 times while also clearly implying that Bylaws are a critical component of accountability by saying that, “(w)ith recent revisions to its Bylaws, ICANN has now put into place a robust accountability framework that will ensure the transparent and responsible management of the DNS, protected from undue governmental interference.”
Zuck, along with Marby and other witnesses, stated that ICANN is and will remain subject to U.S. laws. Yet, curiously, as recently as the failed .org sale arguments were made that ICANN’s affairs shouldn’t be subject to oversight by law enforcement agencies such as the California Attorney General because it undermines the stakeholder community. So, on one hand, ICANN is subject to U.S. laws but, on the other hand, any attempt at enforcing those laws by agencies having jurisdiction and authority to do so is objectionable as undue governmental interference.
During the Q&A portion of the hearing, which begins around the two hour and fifty-five minute mark, witnesses offered further assurances of the “protections” supposedly offered by ICANN’s Bylaws. For instance, responding to a question about governmental influence over ICANN once the U.S. government relinquished oversight, Steve Delbianco — head of the Netchoice technology trade association and policy chair of ICANN’s Business Constituency —said:
Mr. Chairman, the discussion of whether and how the bylaws change is true of any organization who lays down bylaws and articles of incorporation. Any articles of incorporation always include a clause that says that these articles and bylaws can be changed with a majority. But we have gone far beyond the typical assurances of a CEO, former or current. We changed the bylaws…and if ICANN tries to change those bylaws, it requires the approval of the community…it would require the consent of the entire community…(s)o we have built in as many protections as we possibly can….
But this statement — like so many made in advance of the IANA transition and since — has turned out to be a false assurance. Thus, any confidence in Bylaws “protections” is a futile exercise of pure imagination since changes and, therefore, requisite community approval aren’t necessary. Instead, ICANN comfortably ignores its Bylaws and the reaction of many stakeholders is to remain silent while some, apparently suffering from Stockholm syndrome, even try minimizing the transgression.
Paul Rosenzweig, an advisor to The Chertoff Group and former Assistant Secretary for Policy of the U.S. Department of Homeland Security, offered the common sense observation that stress tests are only a theoretical exercise. Many, myself included, were criticized and ignored for questioning the headlong rush to cut ICANN loose from its traditional accountability tether to the U.S. government.
But our position was purposefully misconstrued since many of us actually supported ending the U.S. government’s role in authorizing changes to the root zone file. Rather, we were focused on the need for testing accountability mechanisms in real life and outside of theoretical stress testing before removing ICANN’s training wheels by terminating the IANA functions procurement contract.
ICANN has been violating the prohibition contained in Section 2.2 by warehousing domain names for more than 20 years. Meanwhile, ICANN and its defenders have relied on cognitively dissonant, hypocritical, and false assurances along with lies of omission that have misled Congress, the American people, and stakeholders — and, in the absence of community objections or even much in the way of awareness, they have been getting away with it.
Thus, the natural question for stakeholders and regulators then becomes: if ICANN is violating something as fundamental as a Bylaws prohibition without much in the way of notice or objection, then what other violations are occurring that remain hidden and yet to be discovered?
The Senate subcommittee should consider a follow-up hearing that might get some answers to these essential questions.