legal Red Alert: ICANN and Verisign Proposal Would Allow Any Government In The World To Seize Domain Names

[GeorgeK]

ICANN, the organization that regulates global domain name policy, and Verisign, the abusive monopolist that operates the .COM and .NET top-level domains, have quietly proposed enormous changes to global domain name policy in their recently published “Proposed Renewal of the Registry Agreement for .NET”, which is now open for public comment.

Either by design, or unintentionally, they’ve proposed allowing any government in the world to cancel, redirect, or transfer to their control applicable domain names! This is an outrageous and dangerous proposal that must be stopped. While this proposal is currently only for .NET domain names, presumably they would want to also apply it to other extensions like .COM as those contracts come up for renewal.

See the rest of the article on my blog at:

https://freespeech.com/2023/04/19/r...overnment-in-the-world-to-seize-domain-names/

It's important that folks submit public comments to oppose this major policy change, which would harm domain name owners.

 

[karmaco]

This can only lead down bad roads for domainers. Like registrars blocking more countries they have bad blood with etc. and losing domains and clients.

No matter how it is framed its not a positive for us as a whole. Unreasonable and ridiculous requests will be easier to push through and impact all.

 

[jberryhill]

If the Djibouti National Weather Services wants one of my domains, my expectation would be that Tucows/OpenSRS (my registrar in Toronto) would tell them to go to an Ontario, Canada court for an order.

First, let me make clear that I am counsel to Tucows in certain limited matters, and that precisely these sorts of issues are regularly referred by Tucows to my attention.

Second, Tucows policy may be more flexible than you believe it to be. Whether Tucows would implement the actions of some legal authority in Djibouti will also depend on whether the reseller or you were located in Djibouti. Tucows does not have a direct registrar relationship with its registrants (outside of Hover.com), but it does have resellers whom Tucows expects to comply with the law of wherever they are.

That's why Tucows, and others in the space, will typically refer to "competent jurisdiction" than saying, e.g. "Canada". Obviously, people are subject to the law of wherever they happen to be, so if a reseller or registrant is in Djibouti, and some legal authority in Djibouti takes action in relation to that reseller or domain registrant, Tucows will generally abide by that authority in relation to that domain name and that registrant.

Uniregistry did the same thing (unsurprisingly). If someone showed up with an administrative warrant, investigative subpoena, or other non-court mechanisms regularly used in criminal investigations, they would generally have to coordinate with the Cayman Office of the Director of Public Prosecutions absent some apparent connection between the registrant and the issuing jurisdiction, among other considerations.

 

[GeorgeK]

First, let me make clear that I am counsel to Tucows in certain limited matters, and that precisely these sorts of issues are regularly referred by Tucows to my attention.

Second, Tucows policy may be more flexible than you believe it to be. Whether Tucows would implement the actions of some legal authority in Djibouti will also depend on whether the reseller or you were located in Djibouti. Tucows does not have a direct registrar relationship with its registrants (outside of Hover.com), but it does have resellers whom Tucows expects to comply with the law of wherever they are.

That's why Tucows, and others in the space, will typically refer to "competent jurisdiction" than saying, e.g. "Canada". Obviously, people are subject to the law of wherever they happen to be, so if a reseller or registrant is in Djibouti, and some legal authority in Djibouti takes action in relation to that reseller or domain registrant, Tucows will generally abide by that authority in relation to that domain name and that registrant.

Uniregistry did the same thing (unsurprisingly). If someone showed up with an administrative warrant, investigative subpoena, or other non-court mechanisms regularly used in criminal investigations, they would generally have to coordinate with the Cayman Office of the Director of Public Prosecutions absent some apparent connection between the registrant and the issuing jurisdiction, among other considerations.

My company, based in Toronto, is the reseller for all of my company's domain names at Tucows, naturally.

Registrant = Toronto, Ontario, Canada
Reseller = Toronto, Ontario, Canada
Registrar (Tucows) = Toronto (and perhaps more, see below)

According to:

https://tucowsdomains.com/help/legal-submissions/submitting-court-and-legal-documents-to-tucows-inc/

Can non-Canadian-based court documents be submitted?

Yes. Tucows will accept court documents from Canada, Denmark, Germany, and the U.S.A.

https://tucowsdomains.com/help/legal-submissions/

Valid Subpoenas

If you seek the registrant information of a Tucows registrant in connection with a civil legal matter, please attach the valid subpoena here. Valid subpoenas are those issued by (a) any Canadian federal, provincial, or municipal, (b) any Danish County or High Court, (c) any German federal or local court, (d) any U.S. federal, state, or county.
Tucows will not respond to subpoenas or analogous discovery mechanisms issued by any other jurisdiction unless they are domesticated into one of the above-listed jurisdictions.

[they missed the word "court" after the word "municipal" in (a), and after "county" in (d); I thought I copied/pasted incorrectly....]

So, Denmark, Germany and the USA might also be in play, due to Tucows' presence in those jurisdictions (eNom = USA, Ascio = Denmark & Germany; and I think they were incorporated in Pennsylvania; plus Ting is in the USA). Whether they would consider Denmark/Germany to be competent jurisdictions for domains not registered at Ascio (i.e. registered at Tucows/OpenSRS or eNom), where the registrant/reseller has no connection to Denmark/Germany, is unclear.

But, going back to Verisign as registry operator, their decision calculus will not always be the same as the registrar (and it's at Verisign's sole discretion, with limited or no recourse for the registrant). If they open an office in India or China, perhaps that would affect their decision.... and guess what....

Verisign has historical SEC filings listing their subsidiaries. In 2019 (the latest I could find):

https://www.sec.gov/Archives/edgar/data/1014473/000101447320000006/vrsn-20191231x10kxex21.htm

Name of Subsidiary	Jurisdiction
eNIC Cocos (Keeling) Islands Pty Ltd	Australia
eNIC Corporation	U.S. - Washington
Global Registration Services Limited	United Kingdom
The .TV Corporation International	U.S. - Delaware
The .TV Corporation (Tuvalu) Proprietary Co. Ltd	Tuvalu
VeriSign Global Holdings Limited	United Kingdom
VeriSign Holdings Limited	Cayman Islands
VeriSign India Private Limited	India
VeriSign International Holdings, Inc.	U.S. - Delaware
VeriSign Internet Services Sàrl	Switzerland
VeriSign Internet Technology Services (Beijing) Co. Ltd.	China
VeriSign Naming and Directory Services LLC	U.S. - Delaware
VeriSign Netherlands B.V.	Netherlands
VeriSign Sàrl	Switzerland
VeriSign Services India Private Limited	India
VeriSign Switzerland SA	Switzerland

(emphasis added)

And even simpler on this page it says:

https://www.verisign.com/en_US/company-information/contact-us/index.xhtml

Verisign has business offices in North America, India, China, Switzerland, the United Kingdom and Australia.

(emphasis added)

Obviously the Tuvalu ones are likely goners, given GoDaddy took over .TV. But, notice there's India, China, Switzerland, the Netherlands, and the Cayman Islands in the list of subsidiaries, and business offices of India, China, etc.

So, what's Verisign going to do, if they had a bank account in the Cayman Islands holding many millions of dollars (gotta optimize global taxes!) and the Cayman Islands government gave them an order involving a registrant in Tokyo, Japan with a Japanese registrar (a country not in the above list)? Are they going to take one for the team and tell the Cayman Islands government "go to Japan"?

Same example, but now with the Chinese or Indian governments, where they have business offices. ????!!!???

With that litigation involving the registrars and India, we might find out the answer, should the Indian government escalate it to Verisign, since the offending text is already active in the .com agreement! (if some of the domain names in dispute are .com)

[As for Uniregistry, they did have a Newport Beach, California office, so I would think US court orders would be respected. It'd be interesting to know what GoDaddy considers, given they have subsidiaries and offices in a lot of places...]

The folks at Facebook should be worried, if/when the registry operator has such powers. As folks will remember, they setup their own registrars (RegistrarSafe/RegistrarSEC, see the WHOIS of fb.com, meta.com, etc.):

https://registrarsec.com/

as a risk mitigation strategy. Their strategy is thwarted if a government, etc. can go straight to Verisign, and if Verisign finds that government order acceptable (i.e. competent jurisdiction, etc.) in situations Facebook would not have found it applicable.

Anyhow, this is a complex topic, and I'm glad folks are starting to become more aware of these issues, since it was overlooked by most in 2020. Do the set of sloppy sentences in the .net proposed agreement (and in the active .com agreement that they sneaked through in 2020) adequately protect registrant interests? I think not!

 

[jberryhill]

As for Uniregistry, they did have a Newport Beach, California

The registry did. The registrar didn't. Although at one point I believe the California offices were run by a US company also named Uniregistry that provided consulting services to the other two. It was something of a moving target.

 

[xcloud123]

The US government is proficient in blocking or shutting down other people's domain names, not other countries

 

[Future Sensors]

https://domainincite.com/28734-worried-about-governments-seizing-com-domains-too-late

 

[GeorgeK]

I did some additional analysis, after discussing things with others....

Now that there's greater awareness, I think it's imperative to get it removed from .net before the impending renewal. Then, either pressure them to remove it from .com immediately, or when it next comes up for renewal.

According to the 2012 .com agreement (they don't appear to have a "clean" current contract which incorporates all amendments; you have to go to the agreement and then follow any amendments!):

https://www.icann.org/en/registry-agreements/details/com
https://www.icann.org/en/registry-agreements/com/com-registry-agreement-1-12-2012-en

Section 4.2: .....Upon renewal, in the event that the terms of this
Agreement are not similar to the terms generally in effect in the
Registry Agreements of the 5 largest gTLDs (determined by the number
of domain name registrations under management at the time of renewal),
renewal shall be upon terms reasonably necessary to render the terms
of this Agreement similar to such terms in the Registry Agreements for
those other gTLDs. The preceding sentence, however, shall not apply to
the terms of this Agreement regarding the price of Registry Services;
the standards for the consideration of proposed Registry Services,
including the definitions of Security and Stability and the standards
applied by ICANN in the consideration process; the terms or conditions
for the renewal or termination of this Agreement; ICANN's obligations
to Registry Operator under Section 3.2 (a), (b), and (c); the
limitations on Consensus Policies or Temporary Specifications or
Policies; the definition of Registry Services; or the terms of Section
7.3.

(emphasis added)

So, if the offending language isn't in the contract of the 5 largest TLDs (presumably excluding .com), then that justifies removing it from .com.

In Amendment No. 1:

https://itp.cdn.icann.org/en/files/registry-agreements/com/com-amend-1-pdf-20oct16-en.pdf

The expiration date was Nov 2024:

Section 4.1 Term. The term of this Agreement shall expire on
November 30, 2024, as extended by any renewal terms (the “Expiration
Date”).

Amendments No. 2 and No. 3 don't appear to change that.....so ICANN & VRSN are probably going to review that .com agreement relatively soon!

When they sneaked in the offending language for .com in 2020, they said at the time:

https://www.icann.org/en/public-com...nt-3-to-the-com-registry-agreement-03-01-2020

Next Steps
The proposed Amendment 3 includes an updated Registry-Registrar
Agreement (RRA) as Appendix 8A, based on several of the proposed
changes to the registry agreement and for consistency with other RRAs.
For added transparency, the proposed changes to the RRA are included
in redline format to simplify comparison with the current RRA. In
parallel with this public comment period, the proposed RRA will be
processed in accordance with the RRA Amendment Procedure.

If you follow the link to the RRA amendment procedure:

https://www.icann.org/rra-amendment-procedure-en

and then use the July 9 to July 2021 archive:

https://mm.icann.org/pipermail/registrars/

and then the January 2020 archive:

https://mm.icann.org/pipermail/registrars/2020-January/date.html

ICANN actually did notify registrars!

https://mm.icann.org/pipermail/registrars/2020-January/006217.html
https://mm.icann.org/pipermail/regi...visionstoCOMRRA_012020_TransmittaltoICANN.pdf

But, presumably the registrars messed up and didn't see or understand the big changes!

Looking at the current archive:

https://mm.icann.org/pipermail/rra/

I don't see any notice yet for .net in 2023 (I checked each month for 2023).

So, this time, the opportunity exists for registrars to push back via that process, instead of just doing nothing like last time for .com.

In the future what they should do is make a uniform Registry-Registrar agreement for all gTLDs, because who has time to keep up with all the changes for hundreds or thousands of TLDs? That's how things slip through the cracks....

 

[Name Trends]

So that Means any GEO City Name can be taken by any Local Government Agency

How can we protect ourselves from a geo name we use as a current business ?

 

[FredMercaldo]

As someone who has invested heavily in City and State and Country names, both as an owner and a broker, I obviously have much at stake here. However I understand that previous court rulings have resulted in favor of owners of City .com names; but understand that if new rules are written into the ICANN amendments, the new amendments may take precedence. However, I cannot believe in a million years that any .com on a City domain would be subject to automatic claim by a City especially after many are multi-million dollar businesses, or have had multi-millions invested. Someone please shed some light on what is really going on here. Thank you.

 

[xcloud123]

As someone who has invested heavily in City and State and Country names, both as an owner and a broker, I obviously have much at stake here. However I understand that previous court rulings have resulted in favor of owners of City .com names; but understand that if new rules are written into the ICANN amendments, the new amendments may take precedence. However, I cannot believe in a million years that any .com on a City domain would be subject to automatic claim by a City especially after many are multi-million dollar businesses, or have had multi-millions invested. Someone please shed some light on what is really going on here. Thank you.

France.com
which will be next

 

[StartupsBrandsCom]

The US government is proficient in blocking or shutting down other people's domain names, not other countries

And the greatest contributor, founding base, investor and administration as well, both standing for the informational technology & internet, as for, educative & intellectual property accessibility leading destination.
For those with a political prejudgment in-front of civilizing norms, go to your country/neighborhood and try to friendly agree over never before known amount of electrical machines noise pollution - and such simple people self regulation will not restore plain environmental & urban surrounding order. ()
That is why there are growing governmental instructions and administration.

"The World Health Organization (WHO) defines noise above 65 decibels (dB) as noise pollution."

"Road traffic remains biggest source of noise pollution in Europe
Road traffic noise is the dominant source affecting human exposure above the EU's threshold of 55 decibels (dB) for daily exposure and 50 dB
Regulation 540/2014 also introduced a new method to test the sound level of cars. "

"Noise Control Act (NCA) of 1972, Congress hoped to "promote an environment for all Americans free from noise that jeopardizes health or welfare."

"Regulation of Vehicular Noise Pollution in India
National Law School of India University"
"While there are limits on decibel limits, there is a necessity to curb unnecessary honking. This is provided for under §194F(a)(i) of the Noise"

"(ii) SAE Standard J1470, Measurement of Noise Emitted by Accelerating Highway Vehicles (June 1998), the sound level does not exceed 83 dBA"

 

[StartupsBrandsCom]

As someone who has invested heavily in City and State and Country names, both as an owner and a broker, I obviously have much at stake here. However I understand that previous court rulings have resulted in favor of owners of City .com names; but understand that if new rules are written into the ICANN amendments, the new amendments may take precedence. However, I cannot believe in a million years that any .com on a City domain would be subject to automatic claim by a City especially after many are multi-million dollar businesses, or have had multi-millions invested. Someone please shed some light on what is really going on here. Thank you.

Totally agree, .com is commercial/communication extension and any ruling to overtake ownership, would consequently subject to Property seizure and repair, pay or, sort of a legal subject to Compensation for Nationalization of Private Property.

On the other side there are predispositions in a favor of geographically originating intellectual properties(historically known places), trademarks and brands.

"Geographic protection, brands
Geographical indications protect your products against misuse or imitation of the registered name and guarantee the true origin of the product to your customers. These rules ensure you and all producers in the given geographical area have collective rights over the product, as long as certain requirements are met."

"What is a “generic” geographical indication?
In the context of geographical indications, generic terms are names which, although they denote the place from where a product originates, have become the term customary for such a product. An example of a GI that has become a generic term is Camembert for cheese."

 

[GeorgeK]

The ICA and TurnCommerce have submitted comments:

https://www.icann.org/en/public-com...ions/internet-commerce-association-23-05-2023

https://www.icann.org/en/public-com...4-2023/submissions/reberry-jeffrey-19-05-2023

Comments are due by 23:59 UTC time on Thursday May 25, 2023 (tomorrow!).

As I noted on Twitter:

https://twitter.com/x/status/1661070797346156613

I found another problematic change, regarding reserved names. I suspect that was an unintentional change (i.e. they removed more text than they were supposed to), so hopefully they will revert the change once they are aware of the unintended consequences. The ICA mentioned it at the end of their submission, but I'll elaborate in more detail in my own company's submission (still working on it; that part is already finished, but the rest needs more time....).

 

[GeorgeK]

I just submitted my company's final comments regarding the dot-NET renewal:

https://freespeech.com/2023/05/24/o...net-registry-agreement-renewal-with-verisign/

Others, including the ICA and TurnCommerce have also made substantial submissions. You might want to do so as well, before the deadline of Thursday May 25, 2023 at 23:59 UTC (i.e. tomorrow!).

 

[Future Sensors]

https://domainincite.com/28810-everyone-hates-verisigns-new-net-deal

 

[GeorgeK]

ICANN posted their sham review of the public comments, which outright lied:

https://freespeech.com/2023/06/27/another-icann-sham-review-of-public-comments/

 

[Name Trends]

How realistic is this Ruling ?

Will Foreign Governments go after any domain we own ?