[council] Letter from members of the US House Committee on the Judiciary to ICANN

Bruce Tonkin Bruce.Tonkin at melbourneit.com.au
Fri Sep 18 03:06:35 UTC 2009

Hello All,

You may be interested in recent correspondence received by ICANN that
related to new gTLDs.

See: http://www.icann.org/correspondence/

There is a letter co-authored by Afilias, PIR and Neustar on
registry/registrar vertical integration, and a letter from Enom on the
same topic.

Most recently there is a letter from members of the USA House Committee
of the Judiciary. 


It states:

Dear Mr Beckstrom,

Congratulations on your recent appointment as President and Chief
Executive Officer of the Internet Corporation for Assigned Names and
Numbers (ICANN).  You assume responsibility of the principle private
sector organization charged with maintaining the security and stability
of the global Internet at a critical juncture.  The contemporaneous
consideration of the rollout of an unrestricted number of generic top
level domains (gTLDS) in conjunction with the scheduled expiration of
the Joint Project Agreement (JPA) presents historic challenges and
turning points in Internet Governance.

As senior leaders of the House Committee on the Judiciary, which has
jurisdiction over matters that relate to criminal justice, competition
and intellectual property rights, we have a longstanding interest in
matters that affect the domain name system (DNS).  In this capacity, we
would like to share with you our concerns regarding the proposed new
generic domain name expansion and the expiration of the JPA.

It has come to our attention that the proposed unlimited expansion of
gTLDS will likely result in serious negative consequences for U.S.
businesses and consumers,   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.   We also
note that the record concerning the impact this proposed expansion will
have on competition is woefully inadequate.   To our knowledge, the only
economic justification put forth thus far has been an ICANN-commissioned
report that has been widely criticized for failing to include  empirical
data or analysis in support of its conclusion that the unrestricted
expansion of gTLDs will result in net consumer benefits.

We are aware that ICANN has taken some steps to respond to the concerns
of intellectual property owners by establishing an Implementation
Recommendation team (IRT) charged with developing specific proposals to
protect intellectual property interests.   However, we note with
disappointment that serious consideration of these interests did not
occur in the normal course of ICANN's policy development process, and
the IRT was formed only after considerable public outcry arose from the
business and intellectual property communities.   We further note that
decisions regarding the execution of the IRT's recommendations have not
been publicly announced as well as our concern that it appears such
disclosures are not intended to be made available to the public prior to
the scheduled expiration of the JPA.  This apparent time-line reinforces
the perception that ICANN decision-making processes lack critical
transparency and accountability.

Given the late consideration of intellectual property concerns, the lack
of a credible independent analysis on competition issues in the context
of proposals to expand gTLD's, as well as ICANN's less-than-stellar
track record on a variety of other issues (enforcement of registrar
obligations, accuracy of publicly available Whois data), we have serious
misgivings about the prospect of terminating the formal relationship
between the U.S. Government and ICANN that is currently represented by
the JPA.   In the interests of better understanding ICANN's position on
these and related matters, we will appreciate your providing the
Committee with answers to the following questions:

1. Which of the recommendations of the IRT does ICANN plan to implement?
What is the justification for not publicly announcing such decisions
prior to the September 30, 2009 scheduled expiration of the JPA and
instead deferring such public notice and review until publication of the
new version of the Draft Applicant Guidebook?  If implemented, how will
the recommendations put forth by the IRT serve to reduce or eliminate
the need for defensive registrations?  Will any of recommendations
prevent price gouging by registries and registrars?

2. Does ICANN intend to carry out a comprehensive, empirical economic
study to examine the impact on competition that additional gTLDs may
have?  If not, what confidence can the public have that the expansion of
gTLDs will improve rather than hinder, competition?   Assuming the
rollout goes forward, what steps will ICANN take to monitor the impact
on competition in the future?

3.  Do you recognize a need for and support the establishment of a
permanent instrument that memorializes the relationship between ICANN
and the U.S. Government?  If not, what are your current thoughts on an
extension of the JPA prior to its expiration on September 30, 2009?
What key elements do you think should be incorporated into such as
permanent or temporary agreement?  What assurances do citizens of the
United States have that ICANN will effectively meet the goals set out in
the JPA if it or a successor agreement is not formally extended?

As a final matter, we wish to associate ourselves with many of the
concerns articulated by the ICANN's Government Advisory Committee in
their letter of August 18, 2009 (copy enclosed) to the Chairman of
ICANN's Board.  We would appreciate your assessment and response to the
matter detailed in that letter, particularly as they relate to the
stability of the Internet and the absence of clear evidence that the
introduction of new gTLDs will provide net benefits to consumers.

The effects of policies adopted by ICANN transcends the narrow technical
operation of the global Internet.  The policy choices made and the
manner they are implemented affect the rights, property and security of
consumers, companies, non-governmental organizations and governments
worldwide.  With this enormous impact, ICANN has an obligation to ensure
there are inclusive, transparent, and accountable processes that
consider fully the perspectives of ALL stakeholders, before rendering
significant decisions or implementing substantial policy changes.

We urge you to weigh carefully the concerns expressed by us, the GAC,
and other parties before finalizing a course of action and we look
forward to receiving your written response by Tuesday, September 22,


Lamar Smith, Ranking Member, House Committee on the Judiciary

Howard Coble, Ranking Member, Subcommittee on Courts and Competition,
House Committee on the Judiciary

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