The Multistakeholder Moment of Truth: Will Stakeholders Hold ICANN Accountable?

During the two-year period preceding the IANA transition in 2016 there was a near-superhuman effort put forth by the community of stakeholders to design, debate, and deploy an accountability framework for ICANN that would serve to check and balance the coordinator of the global DNS. One of the overriding concerns that stakeholders sought to address was the possibility of ICANN being captured and it was argued that the global community of stakeholders would serve as a “backstop” that would hold ICANN accountable.

This framework is threatened now as never before by ICANN’s absurd contravention of its own Bylaws and contractual obligations. I have written extensively about the extant InterNIC licensing agreement — which merges by direct reference the terms of the Memorandum of Understanding — between the U.S. government and ICANN and which is being violated by ICANN on multiple fronts. But ICANN is also violating its own corporate Bylaws and this is unacceptable. Specifically, Section 2.2. RESTRICTIONS states that, “ICANN shall not act as a Domain Name System Registry or Registrar or Internet Protocol Address Registry in competition with entities affected by the policies of ICANN.” Yet, ICANN’s website admits, in their own words, “(w)e act as both the registrant and registrar for a select number of domains which have been reserved under policy grounds.”

It is important to note that ICANN’s Bylaw Section 2.2 does not create a carveout for domains reserved under “policy grounds” nor does it create any sort of loophole for joining with contracted parties to speculate in the domain name secondary market with warehoused and cybersquatted domain names. It simply and clearly prohibits ICANN from acting as a registrar, period.

This sort of bad-faith misbehavior is precisely what was anticipated by the accountability work undertaken prior to the IANA transition. But the checks-and-balances are dependent entirely on active and vigorous community involvement and, in the absence of which, ICANN along with its contracted parties and other collaborationists will do whatever they like. Such is the case with single-character labels in the legacy registries. Let’s recap:

  1. ICANN is subject to multiple prohibitions — contained in the organization’s Bylaws and in extant contractual agreements with the U.S. government — against operating as a domain name registrar, yet it does so brazenly;

  2. ICANN, in conjunction with one or more legacy registry operators, is seeking to encroach on and compete in the domain name secondary market by improperly auctioning to the highest bidder or otherwise selling domain name registrations which are improperly warehoused and cybersquatted and have been since 2000; and,

  3. ICANN has disregarded formal advice from its IP Constituency (IPC) while setting aside standard processes, procedures, and protections in order to speculate with domain names that it has no rights to. In other words, it is infringing on the rights of others by warehousing, cybersquatting, and seeking to sell domain name registrations rather than ensuring their legitimate release subject to standard procedures and protections.

This is absurd, illegitimate, and just plain wrong on so many levels that it is difficult to know where to begin. But if this improper behavior is allowed to continue then what exactly are we doing here? There is no incentive for stakeholders to volunteer their time, talent, and energy for developing processes and procedures that are set aside or otherwise eviscerated whenever ICANN and its contracted parties become overtaken by self-interested profit motives. Importantly, how can ICANN be trusted when it is given to such arbitrary and capricious whims?

Anyone believing that what is occurring doesn’t impact them is allowing hope to triumph over experience. History is replete with examples of what happens when organizations become unaccountable and are left unchecked but there are few, if any, examples of an unchecked organization becoming sated. Rather, the lack of any discernible opposition only emboldens further overreach while whetting an increasingly ravenous appetite at the same time.

Every single stakeholder has an interest in ICANN adhering to its Bylaws, procedures, protections, and extant contractual obligations. If we define our interests only narrowly then we are doing ourselves, our fellow stakeholders, and the Internet an immense disservice. We would do better by heeding the warning contained in the closing words of Martin Niemöller’s 1946 poem, First They Came…, “(t)hen they came for me—and there was no one left to speak for me.”

For those of us concerned with intellectual property — whether copyright or trademark — where is the outrage and resistance to ICANN’s disregard for hard-won standard processes, procedures, and protections for domain names? Does anyone sincerely believe that allowing trademark protections to be set aside now will result in anything other than further and expanded encroachment on intellectual property protections in the future? The International Trademark Association (INTA), copyright interests, and others should be leading the charge to defend these critically important safeguards and advocating forcefully for their expanded use, not sitting idly by while they are narrowed or disregarded altogether.

ICANN and its contracted parties are illegitimately warehousing and cybersquatting domain names for speculative purposes. This behavior is an unacceptable anti-competitive incursion into the secondary market. The Internet Commerce Association (ICA) and its members should be holding ICANN accountable to its Bylaws which were put in place specifically to prohibit this sort of transgression rather than remaining silent and hoping that such behavior left unchecked will end of its own accord.

These groups and others — indeed, all stakeholders — are vested with the responsibility of defending against this sort of illegitimate encroachment and the community is supposed to work together to provide a backstop of accountability to ICANN in the stead of the previously governmental oversight. Thusly, silence and apathy have no place in multistakeholder governance which, to have any efficacy at all, requires stakeholders to clearly understand the interdependent nature of community-led oversight. We all have parochial interests, but when ICANN is violating its own Bylaws so blatantly and absurdly, those interests must be viewed through a much wider lens akin to that of NATO’s Article 5: an attack on one is considered an attack on all.

This is our Internet and if it is to stay that way then the deafening silence and passive resignation of the stakeholder community must end now.