[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
STAKEHOLDER PERSPECTIVES ON ICANN:
THE .SUCKS DOMAIN AND ESSENTIAL STEPS
TO GUARANTEE TRUST AND ACCOUNTABILITY
IN THE INTERNET'S OPERATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MAY 13, 2015
__________
Serial No. 114-23
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
_______
U.S. GOVERNMENT PUBLISHING OFFICE
94-603 PDF WASHINGTON : 2015
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Courts, Intellectual Property, and the Internet
DARRELL E. ISSA, California, Chairman
DOUG COLLINS, Georgia, Vice-Chairman
F. JAMES SENSENBRENNER, Jr., JERROLD NADLER, New York
Wisconsin JUDY CHU, California
LAMAR S. SMITH, Texas TED DEUTCH, Florida
STEVE CHABOT, Ohio KAREN BASS, California
J. RANDY FORBES, Virginia CEDRIC RICHMOND, Louisiana
TRENT FRANKS, Arizona SUZAN DelBENE, Washington
JIM JORDAN, Ohio HAKEEM JEFFRIES, New York
TED POE, Texas DAVID N. CICILLINE, Rhode Island
JASON CHAFFETZ, Utah SCOTT PETERS, California
TOM MARINO, Pennsylvania ZOE LOFGREN, California
BLAKE FARENTHOLD, Texas STEVE COHEN, Tennessee
RON DeSANTIS, Florida HENRY C. ``HANK'' JOHNSON, Jr.,
MIMI WALTERS, California Georgia
Joe Keeley, Chief Counsel
Jason Everett, Minority Counsel
C O N T E N T S
----------
MAY 13, 2015
Page
OPENING STATEMENTS
The Honorable Darrell E. Issa, a Representative in Congress from
the State of California, and Chairman, Subcommittee on Courts,
Intellectual Property, and the Internet........................ 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on
Courts, Intellectual Property, and the Internet................ 3
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 5
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 7
WITNESSES
Mei-Lan Stark, Immediate Past President, International Trademark
Association
Oral Testimony................................................. 9
Prepared Statement............................................. 11
Paul Misener, Vice President of Global Public Policy, Amazon.com,
Inc.
Oral Testimony................................................. 18
Prepared Statement............................................. 20
John C. Horton, President, LegitScript
Oral Testimony................................................. 27
Prepared Statement............................................. 29
Steven J. Metalitz, Counsel, Coalition for Online Accountability
Oral Testimony................................................. 52
Prepared Statement............................................. 54
Bill Woodcock, Executive Director, Packet Clearing House
Oral Testimony................................................. 68
Prepared Statement............................................. 70
Steve DelBianco, Executive Director, NetChoice
Oral Testimony................................................. 76
Prepared Statement............................................. 78
Philip S. Corwin, Counsel, Internet Commerce Association
Oral Testimony................................................. 95
Prepared Statement............................................. 97
Jonathan Zuck, President, ACT | The App Association
Oral Testimony................................................. 127
Prepared Statement............................................. 129
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Darrell E. Issa, a
Representative in Congress from the State of California, and
Chairman, Subcommittee on Courts, Intellectual Property, and
the Internet................................................... 143
Additional material submitted by the Honorable Darrell E. Issa, a
Representative in Congress from the State of California, and
Chairman, Subcommittee on Courts, Intellectual Property, and
the Internet................................................... 158
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member,
Subcommittee on Courts, Intellectual Property, and the Internet 176
Material submitted by the Honorable Doug Collins, a
Representative in Congress from the State of Georgia, and Vice-
Chairman, Subcommittee on Courts, Intellectual Property, and
the Internet................................................... 186
APPENDIX
Material Submitted for the Hearing Record
Response to Question posed during the hearing from Mei-Lan Stark,
Immediate Past President, International Trademark Association.. 196
Response to Questions for the Record from Steven J. Metalitz,
Counsel, Coalition for Online Accountability................... 200
CircleID Article by Representative Bob Goodlatte and Senator
Chuck Grassley................................................. 203
TechPolicyDaily.com Article by Shane Tews........................ 205
Letter from Terry Hart, Director of Legal Policy, The Copyright
Alliance....................................................... 208
Prepared Statement of Daniel Castro, Vice President, Information
Technology and Innovation Foundation (ITIF).................... 211
Prepared Statement of Milton L. Mueller, Ph.D., Professor,
Syracuse University School of Information Studies, The Internet
Governance Project............................................. 219
Prepared Statement of Donuts Inc................................. 222
STAKEHOLDER PERSPECTIVES ON ICANN: THE .SUCKS DOMAIN AND ESSENTIAL
STEPS TO GUARANTEE TRUST AND ACCOUNTABILITY IN THE INTERNET'S OPERATION
----------
WEDNESDAY, MAY 13, 2015
House of Representatives
Subcommittee on Courts, Intellectual Property,
and the Internet
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 10:11 a.m., in
room 2141, Rayburn Office Building, the Honorable Darrell E.
Issa, (Chairman of the Subcommittee) presiding.
Present: Representatives Issa, Goodlatte, Collins, Smith,
Forbes, Jordan, Poe, Marino, Farenthold, Nadler, Conyers,
Deutch, Bass, DelBene, Peters, Lofgren, and Johnson.
Staff Present: (Majority) David Whitney, Oversight Counsel;
Eric Bagwell, Clerk; and (Minority) Jason Everett, Minority
Counsel.
Mr. Issa. Good morning. I want to welcome you all to this
intimate dais gathering here.
The Subcommittee on Courts, Intellectual Property, and the
Internet will come to order.
Without objection, the Chair is authorized to declare
recesses of the Subcommittee at any time.
We welcome today a hearing with the stakeholders of
prospective changes on ICANN. In particular, we will be dealing
today with a number of new items, including the .SUCKS domain
and essential steps to guarantee trust and accountability in
Internet operations.
Today's hearing comes approximately 14 months after the
National Telecommunications and Information Administration
announced its intention to relinquish the existing contract for
the oversight of the Internet Assigned Numbers Authority, or
IANA, to the global multi-stakeholder group coordinated by
ICANN. Now, that is a mouthful. But in a nutshell, we have
decided to give up our governance control that has been in
place effectively since the beginning of the Internet.
The United States has been a critical backstop against
censorship and in promoting openness and free speech in the
Internet once IANA's contract is surrendered. It is impossible
to go back once this is done, and we cannot overstate the
importance of such a transition. If it is to occur, it is
important that it be done correctly and recognizing that the
long-term aspirations of these organizations that contribute to
the operations of the Internet must take the utmost caution in
establishing a process to transition to a new form of control
of this critical backbone function.
Clearly, I was troubled by the NTIA's sudden announcement
late on a Friday afternoon, which is known by all of us to bury
a story. So on September 30, 2014, without first informing or
engaging with the appropriate parties for collaboration,
including the staff of this Committee--and I want to make it
clear, a minor notice that something would be happening the
next week, on a Thursday, without recognizing what it was going
to be, and then having it stuck in on a Friday, is not
collaboration. It is certainly not consultation.
The process that we want to have must be deliberate,
conscientious, and, in fact, include a bottom-up evaluation by
all the stakeholders. So today's hearing is really about
recognizing successes and failures throughout this process.
But we have the largest group of witnesses I personally
have ever had in my 15 years in Congress for a reason. Even
without ICANN at the table, what we have is we have a small
segment of the stakeholders. To have only eight is a
disappointment, because there are millions. But to have eight
is the bare minimum for us to begin to talk about the breadth
of concern that seems to exist in a transition that, although
anticipated for a long time, seems to be rushing forward just
at a time in which particularly the domain name system has some
serious questions and perhaps flaws.
It is particularly important that now that it is about a
year later, that we begin to ask the question: Is it
appropriate to have the transition as scheduled, or should
there be further delay with a short extension in order to
ensure that the process that cannot be undone is done right the
first time?
An example that particularly concerns this Member is, in
fact, that in light of the .AMAZON Web site, one that was not
done in consultation with a company of Internet fame, nor
necessarily in proper consultation with the countries in which
Amazon flows, has been with some chaos and lessons to be
learned, and I want to thank our witness for being here today
so we can begin discussing what was learned and should be
learned before sites such as .SUCKS, .PORN, or .IHATECONGRESS
are put on the Internet. I know that .IHATECONGRESS would be
well sold, perhaps over-subscribed. The question is, does it
serve the responsibility to ensure sufficient naming so that
all may have an appropriate name? Or, in fact, have we gotten
into a business model that was never envisioned?
There is no question in my mind that since there are
billions of possibilities in IPv6, a series of three-digit
numbers, there are enough numbers finally to take care of every
point. But since names can be assigned by the dozens or even
thousands to one number, are we simply exaggerating the number
of names that are going to end up at a single point?
In closing, the .SUCKS domain was approved by ICANN and
auctioned last November to a company that now has the right to
operate a new generic top-level domain. ICANN should not be the
speech police. However, as I have done individual evaluation,
and I now place into the record the DarrellIssa.SUCKS
opportunity to buy, the process being done by the companies
that gain the rights appears to this Member to be nothing more
than legalized extortion. The typical price most Americans see
if they go to GoDaddy or any other site to buy a name is in the
dollars or tens of dollars. In the case of these sites, which
can be often and most likely used in a pejorative way, the
sites begin at $249 but are effectively being done as an
auction. You are given an opportunity to bid, if you are the
proper name owner, $2,500, with no guarantee that you won't be
over-bid by somebody that hates you more than you love your own
name.
So as we begin this process, one of the key elements that
we are going to be exploring is whether, in fact, naming and
those sales should ever be done to settle past debts that ICANN
has, or a bidding process that leads to an unreasonable cost to
the legitimate owner of a name only to protect his name from
either disparagement or dilution.
And with that, I am pleased to recognize the Ranking Member
for his opening statement.
Mr. Nadler. Thank you, Mr. Chairman.
Today we continue our examination of the Internet
Corporation for Assigned Names and Numbers, or ICANN. This may
not be a glamorous topic, but it is fundamental to the
governance and functioning of the Internet.
When we type a simple address into our Web browser, we
rarely give a second thought to how our desired Web site loads
almost instantly onto our screen. But there is a complicated
and unseen architecture that makes this process work,
administered in part by ICANN, and we must ensure that it
operates smoothly, transparently, and with proper
accountability.
Since this Subcommittee last considered issues related to
ICANN, there have been many developments that warrant further
analysis, and I appreciate the Chairman scheduling this hearing
today.
Most prominently since our last hearing, ICANN has
continued to expand its new generic top-level domain program,
gTLD, which supplements existing top-level domains such as
.COM, .NET, and .ORG with new ones consisting of brand names or
generic terms like .MUSIC, .NEWS, or .BOOKS. Supporters of this
expansion argue that it will increase consumer choice,
competition, and innovation. As of last month, there were over
500 new top-level domains added to the Internet, and we expect
hundreds more soon.
However, this expansion has also raised a host of issues
related to determining which names are allocated, to whom they
are allocated, and what it should cost to register a domain. We
have seen this most vividly in the controversy surrounding
ICANN's approval, as the Chairman has mentioned, of the .SUCKS
gTLD. This has been contentious not only because of the term
but also because of concerns voiced about the proposed pricing
structure associated with the domain.
For obvious reasons, many brand owners have chosen to
defensively register their own names in this domain to prevent
others from using it in a negative context. However, the
company that administers the .SUCKS domain, Vox Populi, has
chosen to charge brand owners $2,500 to register their names
instead of the much lower prices, as low as $10 in some cases,
that it charges the public to register these names.
According to Vox Populi, the .SUCKS domain ``is designed to
help consumers find their voices and allow companies to find
their value in criticism.'' Legitimate criticism is fair, of
course, and is protected speech. However, this tiered pricing
scheme which allows critics to register a name for a nominal
charge while brand owners must pay exorbitant prices to protect
their brands looks to many people like extortion.
For example, ICANN's intellectual property constituency
sent a letter to ICANN suggesting that the roll-out not
continue because it ``can best be described as predatory,
exploitative, and coercive.'' In response to these concerns,
ICANN asked the United States Federal Trade Commission and
Canada's Office of Consumer Affairs to consider whether Vox
Populi, which is based in Canada, is violating any laws or
regulations. According to ICANN, because it is not a law
enforcement agency and is only a contractual relationship with
Vox Populi, it cannot act unless it receives guidance that the
company is acting in some way illegally.
Many stakeholders have expressed concern that ICANN's
response is inadequate and simply passes the buck to regulators
rather than taking responsibility for administering its own
contracts.
Given Vox Populi's scathing letter in response to ICANN, it
is clear that this issue will not be resolved quickly. Congress
must closely monitor the situation and hope ICANN will provide
answers about how it intends to protect intellectual property
rights holders and consumers as the rollout of the .SUCKS top-
level domain continues.
But this should not be just about one top-level domain
expansion. We must consider instead what we can learn from the
.SUCKS experience and apply these lessons to future top-level
domains. We should also consider whether there are satisfactory
safeguards in place to protect trademarks and intellectual
property from being misused during this process, and whether
ICANN's rights protection mechanism sufficiently addresses
concerns raised by active parties.
It is important to recognize that this discussion occurs in
the context of oversight responsibility for ICANN's ministerial
IANA functions transitioning from the National
Telecommunications and Information Administration in the U.S.
Commerce Department to an international multi-stakeholder
process. This transition is completely separate and apart from
ICANN's role in the top-level domain expansion.
However, to the extent that stakeholders have expressed
concerns about ICANN's level of transparency and accountability
when it comes to managing the gTLD expansion or its other
responsibilities, it is fair to ask whether appropriate
transparency and accountability will exist once the multi-
stakeholder process begins.
Unfortunately, at times the debate over the ICANN
transition has veered into a partisan battle based on imagined
fears that the transition will cause the Internet to be
dominated by repressive governments overseas. I hope that
today's hearing will be free of such overheated rhetoric. In
reality, this transition continues a privatization process that
started in 1998, which continued through the Bush
administration and has been supported by various Congresses.
Ensuring effective private-sector management of these networks
and transitioning functions served by the United States
Government has been a goal shared by Republicans and Democrats
alike over the years. I continue to believe that we need to
ensure that the transition process and the model developed
through the process produces a management structure that
supports a secure, open, and truly global Internet.
The NTIA has established criteria to help ensure this
occurs, and I am confident that the agency and ICANN will agree
to update us periodically.
Before we delve into a discussion of any shortcomings of
ICANN, I first want to thank its staff and its leadership for
bringing together the multi-stakeholder process and for their
hard work in building a strong and effective Internet. I hope
that today's hearing will not devolve into a discussion that
simply blames ICANN for all of the things that have gone wrong
in this transition. Rather, I challenge us to figure out ways
we can improve it. I would like our conversation to be more
constructive, and I am hopeful that we can work together in a
bipartisan fashion to determine how best to improve the current
system.
Since we have eight excellent witnesses, I don't want to
spend any more time talking than needed. I yield back the
balance of my time.
Mr. Issa. I thank the gentleman. Thank you, Mr. Nadler.
I now recognize the Chairman of the full Committee, Mr.
Goodlatte, for his opening statement.
Mr. Goodlatte. Thank you, Mr. Chairman.
Just over a year ago the Obama administration and
specifically the NTIA announced plans to transition oversight
over the Internet's domain name system to the Internet
Corporation for Assigned Names and Numbers, or ICANN. The
Administration's decision kicked off high-profile debates
involving many far-reaching questions that relate to the future
security, stability, resiliency and integrity of the global
Internet's continued operation.
At the core of NTIA's decision to entrust ICANN with the
responsibility of convening the multi-stakeholder process to
transition the IANA functions contract away from the United
States is its determination that ICANN has matured as an
organization. Presumably, NTIA has concluded that ICANN is not
merely likely to conduct itself in a predictable, open,
transparent and accountable manner in the future but that it
generally exercises sound judgment and conducts itself in this
manner already.
Today's hearing before the Courts, Intellectual Property,
and the Internet Subcommittee is the second to focus on aspects
of the proposed transition of the IANA functions contract to
the global multi-stakeholder community. Two overarching
concerns that should be tested fully and appropriately
validated before concluding any transition are: one, how
representative that community is; and two, how effective the
community is and will be in the future in compelling ICANN to
operate in a manner that benefits not merely a privileged few
but the global users of the Internet.
We will direct our attention today to matters that relate
to the processes being implemented by ICANN and affected
stakeholders to advance the NTIA's proposal and also to the
substantive concerns routinely expressed by a wide array of
stakeholders about ICANN's trustworthiness, accountability,
execution and transparency of its current and existing duties
and initiatives.
Regrettably, many of these issues relate to matters
presented to successive leaders of ICANN and officials at the
Commerce Department for years, and yet there remains
substantial room for progress toward responsible outcomes.
Despite these matters being neither novel nor
unanticipated, ICANN too often fails to appreciate their
seriousness and implement corrective measures in advance or
determines that it is unable or unwilling to do so. In at least
one instance, the Obama administration actually aided and
abetted efforts within ICANN to expand the influence of foreign
governments at the expense of American companies.
We will hear what happened when the NTIA and the State
Department refused to intervene as the governments of Brazil
and Peru pressured ICANN's board to deny Amazon's application
for the .AMAZON gTLD even though the application was complete
and the word was in no way restricted.
The multi-faceted debate over the .SUCKS gTLD, which has
resulted in trademark owners being shaken down for $2,499--I
love that $1.00 discount from the round $2,500--or more
annually to protect their brands by a registry affiliated with
a company in financial default to ICANN raises many troubling
questions, including: one, how the registry gained approval in
the first instance; and two, whether ICANN itself had a
financial motive for allowing this bid to proceed.
Beyond this, ICANN's Chief Contract Compliance Officer's
recent public request to consumer protection officials in the
United States and Canada to investigate the applicant that
ICANN just awarded the new domain to demonstrates the absurdity
and futility of ICANN's own enforcement processes.
But frustration over ICANN's enforcement and compliance
system is not new. For more than a decade, this Committee has
worked to encourage ICANN to take meaningful action to suspend
the accreditation of registrars who disregard abuse
notifications, and even those who actively solicit criminal
activity. Today, we will hear testimony from a witness who has
documented ICANN's refusal to deal responsibly with registries
that profit from the trafficking of counterfeit drugs and even
controlled substances like heroin.
Before concluding, I want to commend the witnesses here
today and those who worked to submit statements to the
Subcommittee for their extraordinary dedication and ongoing
efforts to improve ICANN's responsiveness, accountability and
transparency.
As one of our experts who wasn't able to join us today
observed, ``We think that after more than fifteen years of
routinely interacting with each other, ICANN and NTIA may have
become a little too close. Only Congress can review what NTIA
does and keep pressure on them to make sure the ICANN/IANA
transition is not overly influenced or dominated by the agenda
of ICANN. Help us ensure that the transition responds to the
needs of the much broader community of Internet users and
providers.'' That is our goal and our obligation.
And with that, Mr. Chairman, I yield back.
Mr. Issa. I thank the gentleman.
We now recognize the Ranking Member of the full Committee,
the gentleman from Michigan, Mr. Conyers, for 5 minutes.
Mr. Conyers. Thank you, Chairman Issa. And to the Members
of the Committee, and the gentlelady witness with the seven men
that have accompanied her here today. We welcome you and the
interested citizens that join us for this discussion here in
the Judiciary Committee.
The Internet Corporation for Assigned Names and Numbers,
ICANN, is a private-sector, non-profit corporation started in
1998 to promote competition and to develop policy on the
Internet's unique identifiers. The pending transition of key
domain functions from United States stewardship to the global,
multi-stakeholder community presents, of course, several new
issues.
Most importantly, ICANN and other stakeholders must abide
by their contractual provisions to prohibit the use of domain
names for the pirating of copyrighted material and other
illegal activity. As many of you know, this Committee is deeply
committed to addressing the problems of copyright and trademark
infringement.
Thus, from our perspective, it is critical that ICANN help
prevent piracy and other unlawful conduct by both registrars
and registrants. And to this end, ICANN prohibits registrants
from engaging in unlawful conduct. In fact, ICANN released its
Register Accreditation Agreement in 2013 which requires
registrars to prevent abusive uses of registered domain names.
Yet, there are reports that registrars are ignoring their
obligations to deter online theft of copyrighted material,
among other concerns. And worse, there are reports that ICANN
is not enforcing the registrars' contractual obligations. This
raises concerns about ICANN and Internet governance.
Accordingly, I would like the distinguished witnesses to
explain how ICANN and stakeholders can better respond to
concerns about piracy and other illegal conduct, and how
Congress can hold ICANN accountable.
This leads to the next consideration. The National
Telecommunications and Information Administration must adhere
to its core guiding principles to ensure the security,
protection, openness and stability of the network to complete
the transition. The United States has long supported
transitioning key Internet domain name functions to global
multi-stakeholder communities. In fact, the House and Senate,
on a bipartisan basis in the last Congress, clearly stated
their support for a private, multi-stakeholder model of
Internet governance.
Nevertheless, any proposal for transition of the domain
name system must meet certain core principles before it can be
approved and finalized by the NTIA. These principles ensure
that the United States will succeed in maintaining freedom,
protections, openness, security and stability of the network.
Adhering to these principles would build much-needed public
support for the transition, and it would make it easier to
receive our approval.
Finally, we must ensure that NTIA abides by its commitment
to facilitate a truly effective transition. The process should
continue to be open and transparent and can confirm ICANN's
accountability through core values and bylaws, and it should
obtain international stakeholder consensus and support.
So the hearing today should be the first of a number of
oversight activities that our Committee conducts throughout the
remainder of the transition process. Further hearings would
allow stakeholders to update us on the transition and provide
us with an opportunity to hear concerns. These hearings will
also allow us to examine whether further safeguards are
necessary.
Accordingly, I thank the Chairman for holding today's
hearings, and I look forward to hearing from this rather large
number of witnesses. Thank you.
Mr. Issa. I thank the gentleman. As I said in my opening
statement, it is not a large group. It is a sub-segment of
millions of people who would like to be sitting here at the
witness table.
It is now my pleasure to introduce the distinguished panel
of witnesses. The witnesses' written statements will be entered
into the record in their entirety. I ask you to please
summarize within 5 minutes or less, considering the size of the
witnesses. To help us stay within this time limit, you will
notice, as my colleague and former Chairman of another
Committee, Mr. Towns, would say, you will notice that there is
a red, a yellow, and a green light, and every American knows
that green means go, yellow means go faster, and red means you
have to stop. So if you will obey those, or if you possibly
could summarize in less time, it would be appreciated since it
will leave more time for the many questions we will have.
Before I introduce the witnesses, I would ask that all the
witnesses please rise to take the oath required by the
Committee. Please raise your right hand.
Do you all solemnly swear that the testimony you are about
to give will be the truth, the whole truth, and nothing but the
truth?
Please be seated.
Let the record reflect that all witnesses answered in the
affirmative.
It is now my pleasure to introduce our panel of witnesses.
Ms. Mei-lan Stark is the Immediate Past President of the
International Trademark Association.
Mr. Paul Misener is Vice President of Global Public Policy
at Amazon.com, who has already been mentioned more than most
witnesses.
Mr. John Horton is President of LegitScript.
Mr. Steve Metalitz is Counsel for the Coalition for Online
Accountability.
Mr. Bill Woodcock is Executive Director of Packet Clearing
House.
Mr. Steve DelBianco is Executive Director of NetChoice.
Mr. Phil Corwin is Counsel for the Internet Commerce
Association.
And last but not least is Mr. Jonathan Zuck, President of
ACT | The App Association.
And with that, Madam, you get to go first.
TESTIMONY OF MEI-LAN STARK, IMMEDIATE PAST PRESIDENT,
INTERNATIONAL TRADEMARK ASSOCIATION
Ms. Stark. Good morning, Chairman Issa, Ranking Member
Nadler, and Members of the Committee. Thank you for this
opportunity to appear before you today. My name is Mei-lan
Stark, and I am Senior Vice President of Intellectual Property
for the Fox Entertainment Group, and I am appearing today on
behalf of the International Trademark Association, otherwise
known as INTA, where I am serving on a voluntary basis as their
Immediate Past President.
It was my privilege to testify before this Committee in
2011. At that time, I shared with you the trademark community's
concerns regarding the launch of ICANN's new generic top-level
domain, or gTLD, program. Today, I offer trademark owners'
perspectives on ICANN's performance regarding the .SUCKS launch
and the concerns it raises for the potential relinquishment of
the National Telecommunications Information Administration, or
NTIA's, stewardship of the IANA function. We greatly appreciate
the Committee's attention to these very important issues.
The new gTLD program was designed to promote competition
and innovation. It is a system based upon a participatory
multi-stakeholder model, and as is true with any self-
regulatory model, trust and accountability are essential. That
means the system must have strong mechanisms in place to
conduct its operations in a reliable and transparent way.
Intellectual property owners of all sizes, from all
industries, both commercial and not-for-profit, must be able to
trust that the new gTLD system will operate according to
agreed-upon policies and procedures. This is necessary so that
business owners can effectively protect their valuable
trademarks in this new world. But more than that, trust and
predictability are required to satisfy the purported goal of
the new system, fostering innovation. After all, no business
will invest resources in an unreliable system.
The launch of .SUCKS by Vox Populi is an example of ICANN's
operational deficiencies. The new gTLD program followed
extensive public comment on how the system would operate and
what intellectual property rights mechanisms would be
mandatory. In response to grave concerns voiced by trademark
owners during the public comment periods, ICANN did convene
voluntary experts to address them, and that led to the
implementation of new rights protection mechanisms to protect
businesses and consumers from confusion, cyber-squatting,
fraud, and other abuse.
One such mechanism is the Trademark Clearinghouse, which
allows trademark owners to pre-register domains corresponding
to their trademarks before such names are made available to the
general public. It appears that Vox Populi is using this very
mechanism designed to protect trademarks and consumers to
charge businesses and non-profits, both large and small,
exorbitant fees to register their marks as domain names. Vox
Populi co-opts the rights mechanisms developed by the multi-
stakeholder community and uses it as a means to identify who
pays 250 times more for a domain name.
ICANN was warned about these bad practices and was asked to
resolve these issues before the .SUCKS launch, but ICANN chose
to ignore that request, and the launch continues. The current
.SUCKS controversy strongly suggests that the critical
framework required for a successful transition of the IANA
function does not yet exist. ICANN must enforce its own
policies and contracts. The trademark community supports the
multi-stakeholder model, and we are engaged in the processes
that are shaping that framework. We support a transition, but
not until we are assured of the necessary accountability and
transparency.
As ICANN's management of the .SUCKS launch reveals, we
simply are not there yet. Until such accountability mechanisms
are implemented, continued U.S. Government and congressional
oversight is necessary.
In conclusion, while there are many potential benefits from
the new gTLD program, those benefits are unlikely to
materialize unless the program is effectively and fairly
administered. ICANN's decisions and actions directly impact not
only the architecture and control of the Internet but
ultimately how consumers experience the Internet. As a trade
association dedicated to brands and the consumer protection
that trademarks afford, INTA stands ready to help ICANN develop
and implement a reliable framework that promotes fair
competition, choice and trust.
We very much appreciate the Committee's continued
engagement in these matters and thank you again for the
opportunity to discuss the challenges facing trademark owners
under ICANN's current policies and practices.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Stark follows:]
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__________
Mr. Issa. Thank you.
Mr. Misener?
TESTIMONY OF PAUL MISENER, VICE PRESIDENT OF
GLOBAL PUBLIC POLICY, AMAZON.COM, INC.
Mr. Misener. Thank you, Chairman Issa and Mr. Nadler, for
your attention to this important topic, for holding this
hearing, and for inviting me to testify.
Amazon strongly supports the U.S. Government's policy goals
of maintaining Internet stability, security, and freedom from
government control. But NTIA's planned transition of Internet
governance functions to ICANN carries the significant risk
that, despite NTIA's intentions, ICANN's multi-stakeholder
process could be dominated, coopted, or undermined by national
governments, ultimately jeopardizing these policy goals.
Amazon's recent experience in ICANN provides a warning that
seriously calls into question ICANN's ability and willingness
to uphold the multi-stakeholder model. The international
community simply has not yet demonstrated its commitment to
ICANN's multi-stakeholder process free from government control.
Ideally, this risk would be addressable through a
transparent, rules-based, accountable, multi-stakeholder
process, so there is a very important question for Congress to
ask: Is the current ICANN multi-stakeholder process actually
working free from government control? From Amazon's experience,
it is not.
To the contrary, Amazon's experience provides a warning
about government control of ICANN. Our familiarity with the
multi-stakeholder process at ICANN comes from our application
for several gTLDs, including .AMAZON. We believe the new gTLD
program will provide a great opportunity for innovation and
competition on the Internet, and we are thrilled to be a part
of it. But our experience in the program raises serious
concerns.
In brief, the ICANN multi-stakeholder community worked for
more than 3 years to develop rules for gTLD applicants, only to
have ICANN ignore these rules under pressure from a handful of
national governments, principally Brazil and Peru in the case
of .AMAZON and related applications.
Our repeated good-faith attempts to negotiate solutions
with these governments, which have no legal rights to the term
``amazon,'' were fruitless. Other national governments also
quickly caved to the pressure, and eventually so did the United
States. This willingness of ICANN, other governments, and even
the U.S., to abandon the rules developed in a multi-stakeholder
process because of pressure from a few national governments
provides a warning that seriously calls into question the
commitment of the international community to ICANN's multi-
stakeholder process free from government control.
The implications of this flawed treatment of Amazon stretch
well beyond unfairness to a single company. This wasn't just a
matter of ICANN and national governments, including the U.S.
Government, failing to defend an American company, the
treatment of which had no basis under national law or
international law. More importantly, these governments also
failed to defend the ICANN multi-stakeholder process to which
they supposedly were committed, or to demand ICANN
accountability. And if ICANN feels empowered to disregard its
rules and procedures, as well as snub the United States, before
the NTIA planned transition, one can only imagine what ICANN
would feel emboldened to do after a transition were
consummated.
From a U.S. perspective, the point is not only that my
company's legally protected interests were sacrificed to
geopolitics, it is the way they were sacrificed that undermines
the whole ICANN multi-stakeholder model and sets a precedent
for ICANN and the United States to quickly cave to future
pressure from foreign governments.
Perhaps ICANN intended to demonstrate that it would not
play favorites with American interests. If so, it went way too
far, and instead of treating U.S. interests no differently than
those of other countries, it consciously broke its own rules
and harmed an American company. Bluntly stated, ICANN's current
multi-stakeholder process is not free from government control.
The mishandling of Amazon's gTLD applications is a blemish on
ICANN's record, and because of how the rules developed in an
ICANN multi-stakeholder process were quickly abandoned in the
face of modest government pressure, this blemish is
disqualifying, at least until cleared.
Favorable resolution of Amazon's lawful applications is a
necessary first step, but this incident is only part of a
broader question of whether ICANN and the international
community are fully committed to the multi-stakeholder model
free from government control. If the commitment is only
superficial, the United States should recognize it and address
it now, and NTIA's planned transition should not occur unless
and until independent review and other robust accountability
reform mechanisms proposed by the multi-stakeholder community
are established for ICANN. The Internet stability, security,
and freedom from government control are at stake.
Thank you again for your attention to this topic, and I
look forward to your questions.
[The prepared statement of Mr. Misener follows:]
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__________
Mr. Issa. Thank you.
Mr. Horton?
TESTIMONY OF JOHN C. HORTON, PRESIDENT, LEGITSCRIPT
Mr. Horton. Mr. Chairman, when my company, LegitScript,
identifies an illegal, unsafe Internet pharmacy, we notify the
domain name registrar. When a registrar is notified that the
domain name is being used for illegal activity, ICANN's
accreditation scheme requires the registrar to do two things:
first, to investigate the claims; and second, to respond
appropriately.
The good news is most registrars voluntarily disable domain
names used to sell illegal, unsafe medicines that put patients'
health and safety at risk. However, cyber criminals are
rational economic actors and carefully choose the registrar
that they believe will protect them. LegitScript's data
indicate that just 12 among about 900 registrars maintain half
of all illegal Internet pharmacy registrations. In first place
is Rebel, a registrar in the Momentous Group, which operates
.SUCKS, which has only 0.05 percent of the total domain name
market but over 17 percent of the illegal online pharmacy
market.
Now, I'd like to talk about our experience notifying ICANN
compliance about the few registrars that are a safe haven for
criminal activity. Consider the Web site HealthPlugins.com,
selling morphine, Percocet, and other addictive drugs without a
prescription. The domain name was registered with Paknic in
Pakistan, which refused to take action on this and hundreds of
other illegal online pharmacies. ICANN closed our complaint
against this registrar, finding that it responded appropriately
despite leaving hundreds of illegal Internet pharmacies online.
Now, if you want to buy heroin online, you can do it at
smackjunkshot.com. We notified the registrar, Webnic of
Malaysia, which had told us in the past that it could not just
suspend domain names because it would lose money. We submitted
a complaint to ICANN, which closed the complaint, finding that
the registrar responded appropriately by leaving a domain name
used to sell heroin untouched, as well as hundreds of other
illegal online pharmacies.
Finally, let's consider an example from a Momentous
registrar, freeworldpharmacy.com, one of hundreds of illegal
online pharmacy domain names that we have notified the company
about. Mr. Chairman, these are the drugs that were sold to us
without a valid prescription being required from
freeworldpharmacy.com. And so that Momentous could have no
doubt about the domain names used for illegal purposes, we sent
a photo of these very drugs just a few weeks ago to Momentous.
They took no action, and we have an ICANN complaint pending
against Momentous right now. In the past, however, we have
notified Momentous about illegal online pharmacies, including
this one. They took little or no action, and ICANN has closed
our complaints.
I could go on and on. In these folders, these two folders,
I have screenshots of another 750 illegal online pharmacies
that only continue operating because ICANN closed complaints
against the registrar that took no action. We only stopped at
750 in the interest of time.
The point is cyber criminals cluster at a small number of
safe-haven registrars who are running circles around ICANN
compliance by persuading them that they are responding
appropriately by doing nothing about domain names that they
know full well are being used for illegal purposes, and those
registrars are laughing all the way to the bank.
In all of these cases, when we or law enforcement have
asked ICANN what a registrar could possibly have done that
constitutes an appropriate response in light of the ongoing use
of domain names for illegal activity, ICANN compliance refuses
to disclose it, keeping it a secret between ICANN and the
registrar.
The fundamental problem with this is a lack of transparency
on the part of ICANN's compliance team. No reasonable person
would believe that a registrar is responding appropriately to
evidence that a domain name is being used to sell heroin by
doing nothing. By finding that a registrar is responding
appropriately in these cases, ICANN in essence gives a green
light to the registrar to continue facilitating and profiting
from the illegal activity, thereby putting Internet users at
risk. By refusing to explain what the registrar did that
supposedly constitutes an appropriate response, ICANN lends the
impression that it is participating in a cover-up.
Accordingly, in the spirit of ICANN's longstanding
commitment to transparency, I want to publicly challenge ICANN
to disclose what steps these registrars took that purportedly
constitute an appropriate response despite being notified by
LegitScript and in many cases by drug safety regulators and law
enforcement that the domain names are being used to put
everyday Internet users' health and safety at risk. This lack
of transparency and turning a blind eye to ongoing criminal
activity, in my view, is emblematic and at the core of ICANN's
problems with trust and accountability.
Thank you.
[The prepared statement of Mr. Horton follows:]
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__________
Mr. Issa. Thank you.
Mr. Metalitz?
TESTIMONY OF STEVEN J. METALITZ, COUNSEL,
COALITION FOR ONLINE ACCOUNTABILITY
Mr. Metalitz. Mr. Chairman, Mr. Nadler, Members of the
Subcommittee, thanks very much for inviting me to offer once
again the perspectives of the Coalition for Online
Accountability. Our coalition represents U.S. associations,
organizations and companies that depend on the rules set by
ICANN to enable us to enforce copyrights and trademarks online.
First I would like to salute the Subcommittee for the
crucial role it has played in providing oversight of ICANN
issues over the past 15 years. Maintaining that long-
established oversight record is critical to U.S. businesses
that depend on copyright and trademark protection, and to the
millions of American workers that they employ.
My colleagues at the table, and especially on my left, will
have a lot to say about the IANA transition process and the
accompanying effort to improve ICANN's accountability
mechanisms. I think those accountability efforts are basically
on the right track. But as a wise man once said, the past is
prologue, and so is the present. So rather than speculate about
ICANN's future, I would like to focus on the way in which ICANN
is now handling the critical domain name system functions over
which the U.S. Government ceded its contractual control years
ago.
As several Members of the Subcommittee have already noted,
what ICANN is doing and not doing today is highly relevant to
the terms and conditions of the IANA transition and to what
accountability mechanisms are needed in the future. So very
briefly, let's look at ICANN's current track record on three
key issues: contract compliance, WHOIS, and the new gTLD
launch.
We hear a lot about the ICANN multi-stakeholder model. What
does that really mean? I think it boils down to this: replacing
governmental regulation with private contracts and community
oversight in managing the domain name system. For this model to
work, the contracts must be strong and clear, and they must be
vigorously and transparently enforced.
Now, as John Horton has already mentioned, under the 2013
revision of the Registrar Accreditation Agreement, domain name
registrars have new obligations to investigate and respond to
complaints that the domain names they sponsor are being used
for illegal activities, and that includes specifically
copyright or trademark infringement. By now, most registrars
have signed the 2013 agreement, but I have to report that
registrars are not responding to these complaints even when the
facts are clear and the evidence of wrongdoing is overwhelming.
Just as concerning, to date, ICANN is not yet taking action
to clarify and enforce these RAA provisions, and as the
previous witness said, it is acting with a lack of transparency
in its compliance efforts.
Unless and until ICANN shows that it can effectively
enforce the agreements that it has signed, its readiness for
the completion of the transition will remain in question, and
this track record must be taken into account in fashioning the
enhanced accountability mechanisms that must accompany any
further transition.
The 2013 RAA also set in motion long-overdue steps toward
developing ground rules for the widespread phenomenon of proxy
registration services. These have a legitimate role, but today
the registered contact data for more than one-fifth of all gTLD
registrations, tens of millions, lurks in the shadows rather
than in the sunlight of the publicly accessible WHOIS database.
Further progress in bringing predictability and consistency to
this proxy world is critical. If ICANN cannot do this, then the
role of the WHOIS database in letting Internet users know who
they are dealing with online, critical for accountability and
transparency, will be seriously compromised. The next several
months may show whether ICANN is up to the task.
Finally, although ICANN is only about halfway through the
current new gTLD launch, it is already starting to review the
process. That review needs to be searching and comprehensive.
We need to question and reevaluate the ship's heading, not just
rearrange the deck chairs for the next voyage.
The review has to address the fundamental issue of whether
the rollout of an unlimited number of new top-level domains
actually benefitted the general public and brought greater
choice to consumers or whether it simply enriched
intermediaries and speculators.
In conclusion, thank you again for this Subcommittee's
continuing oversight of this fascinating experiment in non-
governmental administration of critical Internet resources that
we call ICANN. Our coalition urges you to continue that role,
especially with regard to contract compliance, WHOIS, and the
new gTLD review.
I look forward to your questions. Thank you.
[The prepared statement of Mr. Metalitz follows:]
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__________
Mr. Issa. Thank you.
Mr. Woodcock?
TESTIMONY OF BILL WOODCOCK, EXECUTIVE DIRECTOR, PACKET CLEARING
HOUSE
Mr. Woodcock. Mr. Chairman, Ranking Member, and Members of
the Committee, good morning and thank you for the opportunity
to testify. My name is Bill Woodcock. I am the Executive
Director of Packet Clearing House, the international
organization that builds and supports critical Internet
infrastructure, including the core of the domain name system.
I have served on the Board of Trustees of the American
Registry for Internet Numbers for the past 14 years, and I have
been continuously involved in the IANA process since the mid-
1980's. Most relevant to the proceeding at hand, I am one of
the two North American representatives to the CRISP team, the
process through which the Internet numbers multi-stakeholder
community has developed its IANA oversight transition proposal.
I am here today to explain why it is in the interests of
both the U.S. Government and other Internet stakeholders to
ensure that the IANA oversight transition occurs on schedule
and with undiminished strength of accountability.
The IANA function comprises three discrete activities
serving three different communities: the domain name community,
which is represented by the other seven witnesses at the table
here; the Internet protocols community, which sets Internet
standards; and the Internet numbers community, which manages
the Internet addresses that allow our devices to communicate.
These three functions are completely independent of and
separable from each other.
Two of the three communities, protocols and numbers,
produced the requested transition plans on schedule in January.
The names proposal, however, is still a work in progress. The
protocols and numbers communities finished promptly because the
IANA functions that serve them are very simple. The IANA
function that serves names is, as you have been hearing,
substantially more complex. The names community will not reach
consensus in sufficient time to achieve a September 30
transition, but the numbers and protocols transitions are ready
to be implemented now. Moving them forward as planned would
show good faith on the part of the U.S. Government and assure
the world that the USG is a productive participant in the
multi-stakeholder process rather than an obstacle.
At the same time, allowing the names community the further
time it needs would show that the U.S. Government is neither
throwing caution to the wind nor abandoning its
responsibilities before ICANN accountability can be firmly
established.
If NTIA delays the protocols and numbers transitions, it
will further the interests of those Nations that are already
displeased with the exceptional nature of the U.S. Government's
role in IANA oversight. A shift in the balance of Internet
governance from the multi-stakeholder model of the U.S.
Government and the Internet community to the intergovernmental
model advocated by China and the ITU would be disastrous. But a
timely transition of strong stakeholder oversight of the IANA
function would achieve the goals of both the U.S. Government
and the global Internet community, responsible administration
of a critical resource with strong contractual responsibility
to stakeholders enforced within a jurisdiction that ensures
that accountability is guaranteed by the rule of law.
Under pressure from foreign governments to
internationalize, ICANN has over the past 5 years gone from
being a U.S. operation to one with offices and staff in
Beijing, Geneva, Istanbul, Brussels, Montevideo, Seoul, and
Singapore. This is clear evidence of other governments'
influence on ICANN, influence that will only grow stronger over
time.
In my written testimony I cite facts, to demonstrate that
the United States is the legal venue of choice of the
international Internet community whenever it is an available
option, across a sample of more than 142,000 Internet
contractual agreements that we analyzed. Strongly accountable
contractual oversight of the IANA function allows the Internet
community to ensure that performance of the IANA function is
never relocated to a jurisdiction with weaker rule of law or
lesser protections against organizational capture.
ICANN has performed the IANA function successfully because
it has been disciplined by the mechanisms of U.S. Government
procurement, the right to remedy uncured defects with
mechanisms up to and including contract termination, and the
right to seek superior performance in the marketplace through
periodic re-competition. We believe retaining these same strong
accountability mechanisms after the transition is essential to
ensure responsible performance of the IANA function.
No good can come from delaying the transition of the
protocols and numbers functions. At the same time, no good can
come from hurrying the names community into an incompletely
considered compromise. Their issues require carefully crafted
solutions involving significant ICANN accountability reforms.
But these policy-level reforms are irrelevant to the simple
mechanical tasks the IANA performs on behalf of the protocols
and numbers communities.
In conclusion, only the U.S. Government can ensure that
commitment to a successful IANA transition is realized and act
as the guarantor of the success of the multi-stakeholder
governance model. The interests of the U.S. Government and of
the global Internet stakeholder community are both served by a
transition of the IANA protocols and numbers functions on time,
on September 30 of this year, as long as the communities are
contractually empowered to enforce the accountability of the
IANA function operator in the same manner that the U.S.
Government has successfully done for the past 16 years. I ask
you to use Congress' unique power of oversight over NTIA to
ensure that our commitments are met and the transition of the
protocols and numbers functions occur as scheduled.
Thank you for your time.
[The prepared statement of Mr. Woodcock follows:]
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__________
Mr. Issa. Thank you.
Mr. Del--I am doing great. And it is a famous name, too.
Mr. DelBianco?
TESTIMONY OF STEVE DelBIANCO, EXECUTIVE DIRECTOR, NETCHOICE
Mr. DelBianco. Thank you, Chairman Issa, Ranking Member
Nadler, Members of the Committee. You have heard a lot today
about operational problems at ICANN, but what would really
.SUCK is an unaccountable ICANN after the transition when we
have lost the leverage for hearings like this to have much
effect on the organization.
Over 17 years, our government has protected ICANN's multi-
stakeholder model from government encroachment and helped ICANN
to mature, and that is saying something, because the goal for a
computer scientist is to build something that can last at least
as long as it takes to finish building it, and ICANN is still a
work in process.
But it is not sustainable for the U.S. to retain its unique
role forever, particularly in a post-Snowden political climate.
So NTIA asked the community for proposals to replace the
stewardship role for IANA, and Chairman Goodlatte asked in a
blog post earlier this year, ``What guarantees and capabilities
and conditions should first be demanded and stress-tested by
the global community?''
Well, the global community has answered with hundreds of
meetings in the last several months, tens of thousands of man
hours, many of them overnight since we cycle through global
time zones, and our community proposals run a very good start.
They give the community new powers to challenge board actions
via independent review panels and issue binding decisions, to
veto bylaws changes proposed by the ICANN board so they can't
undo what we have done, to veto strategic plans and budgets
proposed by the board, and to remove individual board directors
or spill the entire board if we need to.
Stress testing has helped us to assess whether these new
powers would let the community challenge an ICANN decision for
inaction and to hold the board accountable. As an aside, we saw
little need to stress test the technical operations of the core
Internet functions that Bill talked about because they are
provided by very experienced operators who are actually stress
tested every day.
However, stress tests did help us see that ICANN's bylaws
have to change in other ways. The first stress test in my April
24 testimony to your Committee was ICANN quitting its
affirmation of commitments. So the community has said let's
move some of the commitments and reviews from the affirmation
into ICANN's bylaws.
Another stress test was the governments changing the way
they make their decisions at ICANN by moving to majority
voting. That would expand government power over ICANN
decisions. So we, the community, have proposed changing ICANN
bylaws to seek a mutually acceptable solution with the
governments, but only where their decision was reached through
true consensus.
Added transparency and powers would also help us to avoid
situations like .SUCKS, which I tend to look at as more like a
set of stress tests, of decisions made by ICANN to pass
evaluation on an applicant who owed substantial fees, or the
decision to negotiate a special million-dollar fee with a
single applicant.
So turning back to the community proposals for transition,
we need details--I understand that--and we need review by
global stakeholders. So this will not be ready by September of
2015. The timeline on the display board in front of you and on
some of the paper that I distributed shows that we just can't
get there from where we are. But even with an extension in
time, we worry that ICANN's board and management will resist
the approval of these plans and impede its implementation.
The role of Congress, then, in this historic transition
could be critical. What Congress can do while we still have the
leverage is to insist that NTIA require ICANN to accept and
implement the final community proposals as a condition of the
IANA transition they seek. This is, after all, our last chance
to use the leverage we are about to relinquish. So let's leave
a lasting legacy where the Internet community gets the same
kind of accountability from ICANN that shareholders demand
today from their corporations, that my members demand from my
trade association and, frankly, that voters and citizens demand
from you. I don't think the global community deserves anything
less than that which we use for the other institutions we count
upon to make our lives work better.
I thank you, Mr. Chairman, and look forward to your
questions.
[The prepared statement of Mr. DelBianco follows:]
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__________
Mr. Issa. Thank you.
Mr. Corwin?
TESTIMONY OF PHILIP S. CORWIN, COUNSEL,
INTERNET COMMERCE ASSOCIATION
Mr. Corwin. Chairman Issa, Ranking Member Nadler,
Subcommittee Members, I am Philip Corwin on behalf of the
Internet Commerce Association, a domain industry trade group
and member of ICANN's business constituency which I represent
on ICANN's GNSO council.
I commend the Subcommittee for this hearing. Congress has a
legitimate interest in an IANA transition and enhanced ICANN
accountability that proceeds soundly and effectively. The
stakes include the security and stability of the DNS, Internet
free expression, and uncensored information.
Two cliches are apropos today. The first is, ``If it ain't
broke, don't fix it.'' The ICA consensus is that U.S.
stewardship has been benign and beneficial and that ICANN
accountability should proceed on its own merits. But the second
is, ``You can't put the toothpaste back in the tube.'' The
NTIA's announcement raised global expectations. Hundreds of
ICANN community members have already expended thousands of
hours in designing transition and accountability measures.
Therefore, Congress should not reflexively oppose the IANA
transition but should exercise strong oversight and support of
ICANN stakeholders.
While enhanced ICANN accountability measures are overdue,
they will operate best only if ICANN's board and senior staff
embrace a culture of accountability that assumes responsibility
for the fallout of ICANN decisions and encompasses early
consultation with the multi-stakeholder community that provides
its organizational legitimacy.
We are some distance from that culture. The road to the
NTIA's announcement led through Montevideo and Brasilia and was
paved by ICANN's misappropriation of the Snowden disclosures.
The CEO's travels in South America were backed by a secret
September 2013 ICANN board resolution. These actions were not
transparent or accountable and reflected no community
consultation.
ICANN's community is now on the right stewardship and
accountability track, but a final package will not be ready by
September 30, much less the implementation of required pre-
transition accountability measures. Therefore, NTIA should
announce an ICANN contract extension soon. The final package
must set key community rights in tandem with ICANN
accountabilities in its bylaws and articles of incorporation.
Turning to .SUCKS, ICANN's request that the FTC and OCA in
Canada determine its legality was an abdication of
responsibility rather than its embrace. ICANN had more than a
year to explore and take appropriate action under multiple
contract options. There are other new TLD program issues. While
the jury is still out on the program's ultimate success, the
total number of new domains seems larger than market demand and
many TLDs are practically giving domains away, which aids
spammers and phishers. Major unresolved consumer protection and
technical issues remain unsolved, as well as uncertainty about
spending $60 million in auction fees that ICANN has collected.
The rights protection mechanisms for new TLDs are working
well, but any review of domain dispute procedures should set
standard contracts between ICANN and arbitration providers that
ensure uniform administration. There are no such contracts
today. ICANN must start taking responsibility for fair
administration of domain disputes.
Finally, besides ensuring full satisfaction of NTIA's
principles, Congress should confirm that ICANN's continued
post-transition U.S. jurisdiction is accepted and not a new
irritation for those who would make ICANN a multilateral
organization. You should also know that the transition does not
mean ICANN will assume technical operation of key Internet
functions. ICANN lacks the technical capacity to do so and is
dependent on the experience and expertise of stakeholders for
maintaining core functions. While the NTIA's announcement
requires stakeholders to address certain important policies,
there is no equivalent need to revamp DNS technical operations.
The continued operational excellence of those operations will
bolster the confidence of global users and the Internet's
stability, security, and resilience.
I hope my testimony has been helpful to your inquiry. I
would be happy to answer any questions, and I yield back the
remaining 30 seconds of my time.
[The prepared statement of Mr. Corwin follows:]
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__________
Mr. Issa. Thank you, Mr. Corwin.
Mr. Zuck?
TESTIMONY OF JONATHAN ZUCK, PRESIDENT,
ACT | THE APP ASSOCIATION
Mr. Zuck. Thank you, Chairman Issa, Ranking Member Nadler,
and Members of the Subcommittee. Thanks for the opportunity to
do clean-up here today, and I guess we will see, as the
television series in the late '70's said, if eight is, in fact,
enough.
ACT | The App Association represents over 5,000 app
developers and information technology firms, with businesses in
every congressional district, and part of a really booming
industry. When we talk about the domain name system, as we are
today, it is important to remember that these small businesses,
like the ones I represent, are actually the majority of the
domain name holders. Small businesses around the world have
used the World Wide Web to create presence for themselves and
distribution for their products that simply wasn't available in
the physical world, on par with our larger brethren. This
ability and integrity of the DNS is more important to small
businesses than to any other community.
The basic question we have in front of us today is whether
or not ICANN is ready to be independent of the United States
Government. The simple answer that one can glean from the
testimony you have already heard is no, but with the caveat
that it can be with the enhanced accountability sought by the
multi-stakeholder community with the proposed measures that
were released on May 4th.
If you will allow me to paraphrase Winston Churchill, ICANN
is the worst model for Internet governance, except for all the
others. My personal journey here has been somewhat circuitous.
I am a former software developer that went on to represent
software developers, and for a number of years small businesses
I represent were indifferent to the inner workings of ICANN
because the DNS seemed to be working, until some articles came
out in 2005 suggesting that governments wanted the function of
ICANN to be intergovernmental instead of multi-stakeholder, as
it has been. Suddenly, all of these small businesses were
wearing ``ICANN Rocks'' t-shirts and asking me to get involved
directly in the ICANN process.
So over the past 10 years, in some 30 meetings in
windowless conference rooms around the world, we have worked
together with the community and the NTIA to make ICANN a
stronger, better managed, and more accountable organization. I
am pleased to say we have achieved some success in a number of
areas, and my constant refrain on performance metrics has led
me to have the nickname ``Metrics Man'' inside of the
community, and it is a nickname I wear with pride.
Of course, as you have already heard today, there is still
a lot to be done to create the ICANN the multi-stakeholder
community deserves. As a member of the intellectual property
constituency within ICANN, I stand with my colleagues in
frustration with ICANN's handling of the new gTLD program and
the needs of rights holders in particular. .SUCKS is just one
example and a frightening precedent for what lies ahead for
those trying to protect their intellectual property.
ICANN needs to find better mechanisms to protect IP while
increasing consumer choice and competition in the domain name
space. And they have to get serious about enforcing their
contracts. If digital archery is anything to go by, ICANN
should certainly leave the tech to the experts and keep
themselves in a management role.
Finally, ICANN needs to find better ways to involve small
businesses and to resolve their issues when they arise. The
system is currently overwhelming and over-costly for companies
that I represent to be meaningfully involved in the multi-
stakeholder process. It is for these reasons that I view the
pending IANA functions contract expiration as an opportunity on
which to capitalize rather than something frightening to be
avoided. What has been missing from all the reform efforts
inside ICANN has been the teeth to make these reforms binding.
It is certainly the case that NTIA provided an essential
guidance and protection of ICANN throughout the years, but the
true utility of this unique relationship reached its pinnacle
with the affirmation of commitments in 2009. The announcement
by NTIA of their plans to sunset the IANA functions contract
has spurred a discussion of real ICANN accountability, the
likes of which the organization has never seen.
As others have mentioned, thousands of people hours in the
community have set forth a proposed accountability framework
that promises binding accountability to the multi-stakeholder
community. This new ICANN, ICANN 3.0, if you will, will be
stronger, answer to the community it serves, and create an
environment of constructive reform that will allow it to
develop and grow as the Internet adds its next billion users.
That said, it is true that we have just one chance to get
it right, and I believe that is where Congress can play a
critical role. As Chairman Goodlatte wrote in his recent op-ed,
it is certainly Congress' role to ensure that the proposed
framework is indeed the work of the bottom-up multi-stakeholder
process, the proposed framework passes various stress tests or
worst-case scenarios, and the proposed framework, if accepted,
is sufficiently implemented prior to the IANA functions
contract expiration.
Real accountability, when you boil it down, is about power,
and the power needs to be in the hands of the community before
it is any less in the hands of the U.S. Government.
So once again, I thank you for the opportunity to speak
today, and I hope you will join me in making the most of this
historic opportunity. I am happy to take any questions.
[The prepared statement of Mr. Zuck follows:]
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Mr. Issa. Thank you, and thank you for paraphrasing
Churchill. He never actually delineated whether the British
parliamentary system or the U.S. republic system and federalism
was better, so perhaps we can work that out in ICANN.
Mr. Nadler. The English and Scots are finding out.
Mr. Issa. English and Scots are finding out says the
Ranking Member.
With that, I ask unanimous consent that a rather lengthy
letter to John O. Jeffrey from David Hosp be placed in the
record, this letter from the offices of Fish and Richardson. It
was referred to by the Ranking Member and I am sure will come
up in our discussions.
Without objection, so ordered.
[The information referred to follows:]
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__________
Mr. Issa. I will now recognize myself, and I will start
with a simple question for all eight panelists. The question is
simple; hopefully the answer will be yes or no.
Do we need more time? Do we need to exercise the extension
in order to get it right in the transition?
Ms. Stark. So, what I would say is it is not about focusing
on a specific date, Chairman. It is what you said: We have to
get it right. The stakes are very, very high. Rather than
trying to put an artificial timeline to this, I think what is
important is to focus on the work that is being done and the
progress that is being made.
Mr. Issa. I will come back to you on this, I promise. But
briefly, do we need more time than the short time remaining on
the existing transition?
Ms. Stark. Certainly for public comment. INTA has actually
formally requested an extension of time on the comment periods
for the accountability----
Mr. Issa. To each of you, do we need more time?
Mr. Misener. Yes.
Mr. Horton. Yes, although that is not the fundamental
problem.
Mr. Metalitz. Yes, we do.
Mr. Woodcock. For protocols and numbers, absolutely not. We
have already been waiting for 4 months. For names, absolutely,
yes. They need the time to get it right.
Mr. DelBianco. Yes, we need more time, as the chart
indicates. And a piecemeal approach, as Mr. Woodcock has
discussed, leaves a very small piece of the meal for the naming
community.
Mr. Issa. Mr. Corwin?
Mr. Corwin. Chairman, absolutely, we need more time, and in
particular I would single out that the proposal put out by the
working group on the naming functions, they need to schedule a
second comment period. They put out an incomplete proposal for
only 28 days comment, and they can't send it on to the next
step until they give us a full proposal.
Mr. Issa. Mr. Zuck, clean up. What would Churchill say?
Mr. Zuck. Churchill would say that of course we need more
time, but not indefinitely. I mean, I think something along the
lines of 6 months would be enough to really get the proposal
locked down and get the public comment and feedback and get
something implemented.
Mr. Issa. So paraphrasing for all of you, you do support a
multi-stakeholder transition as long as all the prerequisites
are met, it is a bottom-up approach, and the transition is one
that we can live with for the long run. Good.
Ms. Stark, I am going to go back to you. In light of, if
you will, .SUCKS, .AMAZON, perhaps the drug explanations that
were so articulately said, do we need and how do we get, sort
of point by point, how do we get to the kind of consistency and
enforcement that is necessary to protect trademark holders,
copyright holders, and obviously the unlawful acts on the
Internet that are prohibited?
Ms. Stark. So, I think that the answer--thank you very much
for that question, because I think it gets really to the heart
of the matter. I think the real answer is that ICANN needs to
actually enforce its existing contracts and policies. In a lot
of these regards, we are not asking for something new or more.
We had a multi-stakeholder process from the bottom up that
developed the rights protection mechanisms, that developed the
WHOIS policies and other things that exist in the contracts,
but we are not seeing proper resources devoted to compliance
and enforcement.
Mr. Issa. Do you think there need to be management changes
or structural changes in the management to get that done? In
other words, they used to do something, they are doing it less
well rather than better. Do you see that as a management
failure?
Ms. Stark. You know, I don't feel that I am qualified to
speak about their management.
Mr. Issa. You don't need to name names. [Laughter.]
Ms. Stark. But what I do think is that it is very important
for this model to work, that all relevant interests are
represented and listened to, and that that input is actually
analyzed in a meaningful way and then incorporated into
policies and procedures.
Mr. Issa. Now I am going to ask one more question. It will
probably get several comments.
Whether it is .SUCKS, or if you were going to have a German
version of it, apparently it would be .SAUGT, I have no idea
what it would be in Italian, in Chinese, in all the other
possible languages. What I do know is there are 1,025,000
recognized names in the English language, and if we assume for
a moment that we are going to promote and allow a proliferation
of dot-somethings simply to gain more money, do you believe
that inherently the stakeholders--and I will leave those who
sell names out of the stakeholder business--the stakeholders,
the actual users, the people who want perhaps one name for each
function, perhaps only one name, period, are well served by
trying to use every possible name in 209-plus languages?
If I see no answer, I will assume that you all think it is
really a bad idea to simply proliferate names that end up with
people having to buy thousands of them.
Mr. DelBianco. Thank you, Chairman Issa. The notion of more
names comes about because we find ourselves 10 or 11 years ago
with 20 generic top-level domains and none of them in a script
other than the Latin script. In other words, nothing in Chinese
or Korean or Japanese or Arabic. We hadn't built the Internet
out.
So what the community did is allowed people to propose
names. That is why we ended up with thousands of names
proposed. There were no rules or structure about knowing that
we would have one in the complaint category and one in the car
category. If the community were to move in that direction for
the next round, we would need several years probably of policy
to come up with the structure of how many would we have in each
category.
There are plenty of conversations along the lines of what
you suggested, the idea of categories as opposed to wide-open
season, like we have had in this round. But it would take the
community to develop that.
Mr. Issa. Okay. Quickly, because my time has expired.
Mr. Metalitz. Yes, I would agree. What you have described
is how ICANN approached this most recent round. And while the
jury is still out because they are only halfway through the
round, I think we are going to find that the public has not
been served by letting anybody who wants to get any domain
name, top-level domain that they wish without any criteria and
without ICANN really making any decisions, letting them do
that.
Mr. Woodcock. There are technical security reasons for
allowing a brand TLD, allowing corporations to register their
own top-level domain in order to be able to secure it more
effectively.
Mr. Issa. I will close with just one statement. That letter
from Fish and Richardson says to me please don't say that this
is legalized extortion. Please don't say that when we have an
auctioning process that not only makes more money in debt
relief to ICANN but, in fact, charges exorbitant prices to the
very people who already own the intellectual property that is
effectively being ransomed, please don't call it legalized
extortion.
Well, I take great pride that under speech and debate,
right or wrong, I call it legalized extortion.
I now recognize the Ranking Member.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Metalitz--I hope I got that right. Mr. Metalitz, a
recent NetNames study found that 24 percent of global Internet
traffic is dedicated to the infringing transfer of copyrighted
content. Other data indicate that 68 percent of the top 500
pirate sites reside on U.S. registries; 59 percent reside on
.com, .net, and .org, giving them an air of legitimacy. What
contractual requirements and obligations should registries,
registrars and registrants have to deal with this that we don't
have?
Mr. Metalitz. Thank you for that question, Mr. Nadler. You
have correctly stated that we have a huge problem in the legacy
top-level domains, com and net and org, and that the
contractual restrictions in their contracts with ICANN are not
sufficient. One of the things that has been pointed out is
there may be ways that we can use some of the advances that
were made in the gTLD space. The new gTLDs had to take on some
additional commitments to respond to copyright, piracy, and
trademark counterfeiting in their spaces. We should look at
applying those to the legacy gTLDs as well. That is part of the
ICANN answer. Obviously, there may be things that can be done
on a legislative level because these registries are based in
the United States.
Mr. Nadler. To look back----
Mr. Metalitz. Pardon?
Mr. Nadler. To look back and apply some of what is being
applied to the new domain names to the old ones.
Mr. Metalitz. Yes, and it is a step forward that this
registrar accreditation agreement does apply to registrations
in .com and .net. So pirate sites or sites engaged in illegal
pharmacies can be addressed that way, if those agreements are
enforced.
Mr. Nadler. Okay, thank you.
Ms. Stark, what are your views on the legality of the fee
structure for early registration of certain premium .SUCKS
domains at nearly $2,500? I understand there are a set of
rights protection mechanisms and operators of new gTLDs which
are intended to achieve the laudable goal of combatting cyber-
squatting. As the chief trademark counsel of a major U.S.
corporation, do you believe the structure being forwarded by
Vox Populi with the ascent of ICANN violates at least the
spirit of the registry agreement? And what can be done about
it?
Ms. Stark. I absolutely do believe that it violates the
spirit of the agreement. I mean, the whole purpose of these
rights protection mechanisms, like the clearinghouse, were to
make an efficient system for intellectual property owners to
protect their rights, and ultimately to help protect consumers
from confusion and other types of abuse online. So when you
take that mechanism and use it and turn it on its head to
create some sort of premium pricing structure so that people
who are being responsible and taking advantage of the
mechanisms that the community developed to help them navigate
this new world and you turn that on its head and turn it into a
premium pricing structure, I absolutely think that violates the
spirit----
Mr. Nadler. So that should be banned.
Ms. Stark. I do think that you don't----
Mr. Nadler. That pricing structure, that is, should be
banned.
Ms. Stark. I don't think that you want to necessarily set
premium--I am not saying there can't be premium pricing or that
you can't have all kinds of pricing arrangements. I just don't
think that you want to do it in a way that takes something that
is meant to protect trademark owners and harm them.
Mr. Nadler. Well, it would be easy--I don't know that it
would be right, but it would be easy to say no premium pricing
arrangements. If you didn't say that, how would you distinguish
decent ones from ones that shouldn't be allowed?
Ms. Stark. So, I think that is a process that has to come
up through the community in the multi-stakeholder process.
There are many different relevant stakeholders in that process,
and if there are going to be limits on what happens in pricing,
that should come from the community.
Mr. Nadler. Okay. So Congress shouldn't do anything about
this. We should leave it to the multi-stakeholder process.
Ms. Stark. I think if we really are going to believe in the
model, there should be oversight but that the model should be
allowed to work.
Mr. Nadler. Okay, than you.
Mr. Zuck, the concerns over new gTLDs and potential IP and
trademark infringements are well known. But there are extensive
infringements in the .com space. I understand there are over
65,000 .com's that incorporate the word ``sucks,'' for example.
Shouldn't these be equally concerning? And what can you tell
the Committee about plans for adding additional rights
protections to legacy gTLDs like .com?
Mr. Zuck. Thank you for the question. It is, in fact, the
case that a lot of these issues have come up in the old TLDs,
as you mentioned, and ``sucks'' shows up plenty of different
places. So there is a constant and ongoing debate about whether
there is a difference between the second-level and the top-
level domain in terms of the terms used. I think a strong
argument can be made that there is closer monitoring needed for
the top-level domains, the stuff to the right of the period,
than is necessarily necessary inside of an individual domain.
I think, as Mr. Metalitz said, I think taking some of the
new contract arrangements that have been developed for the new
gTLDs and applying them to the old ones can go a long way. But
the reality is that a lot of the principles of protection are
already in place, and it is just an execution issue of getting
those contracts better enforced. That is the best thing that we
can do, and to make sure the WHOIS database is accurate so that
IP owners can go after infringers. Those are the key issues.
Mr. Nadler. Thank you.
Mr. Corwin, my last question, because I see the warning
light is on. In your testimony you say there are too many new
gTLDs. Will the market take care of an over-supply, or should
ICANN have limited the number of applications from the outset,
or should they now limit the number?
Mr. Corwin. I am not sure I said there are too many. I said
that the jury is still out on the overall success of the
program. So far--and I represent professional domain investors,
and they are being very selective about which new gTLDs they
are acquiring, new domains.
The way I have thought about it is what company would
introduce 1,400 new products in an 18-month period? I don't
know any company that would do that. The market gets confused
when there is that much new choice and new product. Even people
within the community have a hard time keeping up with all the
new names introduced each week, and as a result we see some of
the leading top-level domains in terms of total registrations
offering domains free or for 49 cents to a dollar to hype up
their numbers, but it is not clear that anyone is going to
renew those domains when they push the prices up to market
price.
So the jury is out, but I just don't personally see market
demand for 1,400 new ones, of which 800 are for the general
public.
Could I just speak briefly to your last question?
Mr. Nadler. By all means.
Mr. Corwin. The .SUCKS second-level domain treatment under
the World Intellectual Property Organization arbitration
guidance, particularly in North America and the U.S. where we
have the First Amendment, is if you have company name
Sucks.com, if it is a Web site used for legitimate criticism of
a company or an individual, it is not infringement. If it is
using that name and then infringing on their trademarks or
their copyright and intellectual property, it is infringement.
So you have to look at the content of the Web site. But the big
difference is that nobody with a .com Sucks site is asking
$2,500 a year to register it.
Mr. Nadler. Why is that? If I may, why is nobody doing that
on the legacy TLDs?
Mr. Corwin. Excuse me?
Mr. Nadler. Why is nobody doing that on .com? You are
saying they are doing it on the new ones, they are not doing it
on the old ones. Why?
Mr. Corwin. A .com site pricing is frozen right now under a
Commerce Department decision, and the other incumbent top-level
domains tended to price around the same amount as .com, around
$8 per domain per year, simply to be competitive. They couldn't
get too high above that price and attract customers.
Mr. Nadler. My time has expired. Thank you.
Mr. Issa. Would the gentleman briefly yield for a follow-
up?
Mr. Nadler. I will yield my non-existent time gladly.
Mr. Issa. Thank you. [Laughter.]
I just want to follow up and understand this. I have
looked, and JerryNadlerSucks.com and .org both are available.
DarrellIssaSucks.com and .org, for anyone that wants them, are
available, and I am sure someone will find them. But they are,
in fact, at GoDaddy $9.99 and $7.99, respectively.
Mr. Nadler. We are not in great demand.
Mr. Issa. We are not in great demand. But my understanding
is that AmazonSucks.com has been bought up by Amazon. The fact
is that there has already been a long legacy of buying names to
try to protect them. This latest shakedown is because there is
now a new name and a new opportunity, and it is not available
for first-come/first-serve. In other words, GoDaddy and the
other sellers are not out there competing, something that we
believe in, to try to sell you a name that multiple people can
sell. You have an exclusive holder of a name who is holding it
ransom as a form of extortion. Isn't that correct?
Mr. Corwin. Certainly there is a big difference between
DarrellIssaSucks.com--excuse me for saying that; it is not my
personal belief--being available----
Mr. Issa. The hearing is young. [Laughter.]
Mr. Corwin. If it is registered, if it is criticizing your
views on politics, it is okay. If it----
Mr. Issa. But I am only dealing with the price.
Mr. Corwin. But you can still acquire it for $9.99 a year,
not $2,500 a year.
To answer what Ms. Stark said, there was an ICANN staff
report on new rights protection mechanisms, and this was the
numbers as of February. At that time there were 4 million total
registrations in new TLDs, but there were 25 million claims
notices generated. Now, let me explain that. When someone
starts to register a term that is registered in the Trademark
Clearinghouse, let's say it is Amazon, they get a notice that
your use of this domain may be infringing, and then it is their
decision. If they want a Web site about the Amazon rain forest,
they can go ahead. If they want to pretend they are Amazon,
they do it at their own risk.
In my opinion, there were not six times as many attempts to
register infringing domains as there were actual domains
registered at that point in time, and I have written an article
about this. I have talked to the Trademark Clearinghouse people
at the INTA meeting last week in San Diego. The only
explanation I can get is that some parties--and they may be
operators of new registries--began registrations not with the
intent of registering domains but to find out--every time they
get a claims notice back they say, oh, that name is in the
clearinghouse, and now I can set a premium price for it. So a
mechanism that was put in place to protect trademark holders is
now being used to set extremely high prices from trademark
holders.
Mr. Issa. I thank the gentleman. Our time has expired.
Mr. Forbes?
Mr. Forbes. Mr. Chairman, thank you.
One aspect of the proposed transfer that we have not talked
about in this Committee but has received attention in the House
Armed Services Committee on which I serve is what happens to
the .mil and .gov top-level domains? Even though .mil and .gov
are used by the U.S. military, first responders, and Federal
and state government agencies, the U.S. Government may not
actually own those domains. So I would like to ask Mr. Corwin
and Mr. DelBianco whether you agree that a reasonable condition
of the IANA transition should include a written agreement that
the U.S. Government has an exclusive, perpetual, no-cost right
to those domains.
Mr. DelBianco. Thank you, Representative Forbes. It is
quite easy, I think, for ICANN to give DOD and GSA permanent
contracts, permanent, irrevocable contracts for .mil and .gov.
What is harder, though, is to ensure that we have legal reach
to force ICANN to honor those contracts, and let me explain.
This is about the risks of having a .gov or .mil be
redirected during an emergency, like a coordinated attack on
U.S. systems and infrastructure. For over 100 countries, their
.gov domain is at the second level, to the left of the dot of
gov.ca for Canada or .uk for the U.K. Another 50 countries have
.mil to the left of the dot for their country code.
What is the difference? Well, their .gov and .mil is housed
in a server on their soil, under their law and under their
total control. For the U.S., it is a little different. As the
inventor of the Internet, our .mil and .gov are at the top
level, or the root of the DNS, and that is what the IANA
contract is all about.
So we ought to ensure that ICANN remains subject to U.S.
law and that the root remains physically on U.S. soil to
address the concerns that you brought up, and we have a stress
test on that, you will be glad to know we found that Article 18
of ICANN's bylaws requires the principal office of ICANN to
stay in California, and if ICANN board attempted to change the
bylaws, one of those new powers I described earlier could block
that change.
But if this community and this Committee feels strongly, we
could move Article 18 to the fundamental bylaws of the
transition. That would mean that the community would have to
give 75 percent approval of the board's attempt to leave the
United States' jurisdiction.
Mr. Forbes. Good.
Mr. Corwin?
Mr. Corwin. Just to add to that, this is the legacy of the
fact that the United States invented the Internet and created
these two top-level domains for military and government use.
The transition should, of course, ensure that there are
permanent contracts for the U.S. to continue operating them in
perpetuity.
This is also why it is important that ICANN's jurisdiction
stay within the U.S. It is also important to maintain U.S.
jurisdiction because--I want to commend ICANN. ICANN has funded
two very expert outside law firms to work at the direction of
the community to design the new accountability measures, but
they are being designed to fit within the framework of
California public benefit corporation law, and if the
jurisdiction ever changes, the accountability measures may no
longer work or work as effectively.
So keeping these requires a contract, and making sure that
it stays stable over the decades requires maintaining U.S.
jurisdiction.
Mr. Forbes. Good. Thank you.
Ms. Stark and Mr. Misener, I am not sure if I will be able
to get this question in my time, but if you were to visit
ICANN's Web site and read the description for the Government
Advisory Committee, it states: ``The GAC is not a decision-
making body. However, there are growing concerns regarding the
GAC's influence over ICANN's multi-stakeholder process.''
As representatives who are involved in the multi-
stakeholder process at ICANN, can you shed some light on any
notable examples where the GAC has interfered in the multi-
stakeholder process which directly impacted your company or
your respective companies? And what can be done to curb the
growing influence of the GAC over the ICANN board of directors?
And what type of unintended consequences do you think the IANA
transition will have on the GAC?
Either one of you can get that. I only have about 60
seconds.
Mr. Misener. Thank you, Mr. Forbes, very much. We have a
very clear example of where the Government Advisory Committee
stepped in and caused the board to reverse what had been a
fairly straightforward process in which we had applied for a
.AMAZON and some affiliated top-level domain names.
We support the proposed accountability reforms for ICANN,
and I think they are a great idea. But I think, very
importantly, they can't just be applied prospectively. ICANN
always should have been accountable, and they shouldn't just
now start to be accountable when they are forced to be so.
Mr. Forbes. Ms. Stark, anything you would like to add?
Ms. Stark. I would just say that we do think that the
Government Advisory Council plays a very important role in the
process and should be advisory. But as the Amazon example
shows, it is dangerous when any one or a few governments are
able to block what has been the process that was created by the
full multi-stakeholder community.
Mr. Forbes. Mr. Chairman, thank you, and I yield back.
Mr. Issa. Thank you.
I now ask unanimous consent that the letter that prompted
the earlier letter from IPC be placed in the record.
Without objection, so ordered.
We also are in receipt of a letter from ICANN that I would
like placed in the record.
Without objection, so ordered.
[The information referred to follows:]
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Mr. Issa. We now go to the gentleman from Michigan for his
thoughtful questions and comments.
Mr. Conyers. Thank you, Mr. Chairman.
I would like to follow up on a Nadler-type question, which
I would start off with Mr. Metalitz. We have discussed
something about the obligations on registrars and ICANN. Now,
in your view, are the registrars meeting these obligations, and
is ICANN enforcing them sufficiently?
Mr. Metalitz. Thank you, Mr. Conyers. Well, with respect to
the particular obligations I talked about in my testimony, the
obligation to investigate and respond when they receive a
report that a domain name that they have sold is being used to
carry out illegal activity, no, I do not think that the
registrars are complying with that, and I do not think that
ICANN is yet requiring them to do so. This is something we are
continuing to engage both with ICANN and with registrars about.
But if you take a snapshot today, these provisions are not
being enforced.
Mr. Conyers. Mr. Horton, do you concur with that view? Turn
on your mic.
Mr. Horton. My apologies, Mr. Conyers. I concur with part
of it. Our experience has been a little bit different. As I
testified, we have actually seen that most domain name
registrars voluntarily terminate services to illegal online
pharmacies, and that may be because of the health and safety
risks involved in that particular area. It is a relatively
small number of domain name registrars that are responsible for
most of the problem. But again, I am only talking about one
particular area of abuse. We don't keep data on these other
types of areas.
I do concur, however, that when a complaint is submitted to
ICANN compliance, that they are not requiring compliance with
Section 3.18. The core problem is this phrase ``to respond
appropriately.'' What does that mean? They have latitude to
interpret that, and they have not done so in an effective way.
Mr. Conyers. Ms. Stark, how do you weigh in on this
question?
Ms. Stark. I agree with Mr. Horton that there are some
registrars that are very good about responding. But I do think
that ICANN has not devoted enough resources in general to
compliance, and that there are important parts of the contract
that need greater attention from ICANN directly.
Mr. Conyers. Now, Mr. Zuck, you are on ICANN's IP working
group. How does your experience stack up to the other
contributions that have been made thus far?
Mr. Zuck. Thank you for the question, Congressman. I guess
our experience has been similar. I have been kind of assigned
within the intellectual property constituency to be sort of the
hound dog to the compliance department inside ICANN, and I was
horrified to discover a few years ago that their database of
complaints and responses was a folder in Outlook some 10 years
into the organization's growth.
So I think that they have come a long way from the
standpoint of even keeping track of what they are doing over
the past 5 years, and they still need to do a lot better job,
and I think that the new gTLD program came at a time that made
it easy to overwhelm them, but I think they have made some
progress. But there is certainly a long way to go in terms of
contract compliance within ICANN. It is not quite the horror
that it was 5 years ago.
Mr. Conyers. What other suggestions or experience would you
like to make on this subject?
Mr. DelBianco. Thank you, Mr. Conyers. Steve DelBianco
here. Two other improvements we are making as part of our
proposal. One is to make sure that when the community feels
like compliance isn't happening, the community would have
standing for the first time to be able to file for an
independent review panel, and the community wouldn't have to
come up with the $1 million it takes to pay for the attorneys
and panelists.
Mr. Conyers. Gosh.
Mr. DelBianco. So we are building in the ability to
challenge those decisions, and when the panel comes back with a
decision, it will be binding on ICANN.
The second would be that every year when ICANN puts forth a
budget, if that budget lacks adequate funding for the systems
that they need in compliance, like Mr. Zuck talked about, lacks
the funding for compliance officers, we as a community can veto
the budget until ICANN board comes back with the right budget.
Mr. Conyers. Yes, sir.
Mr. Metalitz. Just a footnote to that. Let's not kid
ourselves about this. There are many issues here where the
community, the entire community might not see eye to eye. That
community includes the registrars and registries that, in fact,
provide over 90 percent of the funding for ICANN, and this is
the problem that ICANN is facing in trying to develop a culture
of compliance. It is very difficult to do that when you have to
negotiate with and enforce rules against the people that are
writing the checks that pay your salary.
So this is a problem that is inherent in the model, and I
think it is something where maybe the community as a whole may
not see the need, but certainly if you look at American
businesses that depend on copyright and trademark protection,
we certainly see the need, and we need some mechanism to make
sure that ICANN responds appropriately.
Mr. Conyers. I see that Mr. Horton concurs with that view.
Mr. Horton. Mr. Conyers, I do, and I think that the
additional thing that I would urge is transparency. As I
testified, I think the core problem is that ICANN compliance is
making decisions about what constitutes an appropriate response
and then does not explain why. If they are making the right
decision, what do they have to be afraid about in disclosing it
to the multi-stakeholder community?
Mr. Conyers. Thank you all very much.
Mr. Chairman, I yield back.
Mr. Marino [presiding]. The Chair now recognizes the
gentleman from Texas, Mr. Farenthold.
Mr. Farenthold. Thank you, Mr. Chairman.
Mr. Metalitz, I understand the importance of protecting
intellectual property, and what you are asking ICANN to do
here, though, kind of sounds a lot like what you all tried and
failed to get Congress to do with SOPA and PIPA. Isn't there in
effect the forcing down and takedown of Web sites outside of
the reach of U.S. law on the basis of an allegation of
infringement without any type of hearing or due process? That
is kind of troubling to me. Would you like to comment?
Mr. Metalitz. Yes, I would. I think this is really an issue
of whether ICANN will enforce the contracts that it has entered
into. These contracts were negotiated. They were subject to
public comment. There was a lot of public input, and throughout
the community there was agreement that these would be the
contractual standards. Those included concern about how domain
names were used. Anytime you are talking about how a domain
name is used, it is often being used to point to content,
whether it is sales of illegal drugs, whether it is streaming
and downloading of pirated material. So this is all firmly
within----
Mr. Farenthold. The concern remains similar to SOPA and
PIPA, that you will cast such a broad net that you will
infringe on people's free speech rights.
Mr. Metalitz. I think that is a concern, but I think if we
can have this dialogue with ICANN about the way in which they
will interpret, apply, and enforce this requirement to
investigate and to respond appropriately, we can have that
discussion about what the safeguards would be. But we need
first to get ICANN to commit to enforcing, and transparently
doing so, these contracts they have entered into.
Mr. Farenthold. All right. And, Mr. Misener, given ICANN's
accountability problems and the tendency to bend to the will of
government, how can we in Congress ensure that ICANN's problems
won't become worse and threaten the stability of the Internet
after the U.S. Government terminates its contract with ICANN?
Mr. Misener. Thanks, Mr. Farenthold, very much. I think
what Congress needs to do is ensure that NTIA insists on these
accountability reforms, that they be made in ICANN's bylaws as
a condition precedent to the actual transition of the IANA
functions. Also, of course, it would be a very positive sign if
ICANN were to move ahead with the .AMAZON applications, which
were very lawfully filed, and the government interference came
in and----
Mr. Farenthold. I am concerned about--actually, I am going
to do that question second, and I will open this to folks on
the panel.
At what point do we see such an explosion in top-level
domains that it becomes worthless? The idea behind more top-
level domains was to give more people the ability to register a
domain name. But if I have to register blake.com, blake.net,
blake.org, blake.biz, blake.us, blake.sucks, where does it
stop? Why shouldn't just general intellectual property law say
you can't register somebody's trademark in any global top-level
domain, rather than, as Chairman Issa pointed out, extorting
companies to register potentially thousands of variations of
their domain names?
Mr. Corwin, you seem eager to jump on that.
Mr. Corwin. Well, I think we are carrying out this
experiment now with the first round of top-level domains and we
are going to see what the market demand is. It was very
expensive for these applicants to bid for each of these so-
called strings. There was a $185,000 application fee. The
average cost, when you put in the consultants and attorneys and
the back-end technical providers, you are talking about half-a-
million to a million dollars per application just before you
open it. If there is no market for this, it is hard to think
that those types of applicants will be there at the next round.
There may be .BRAND applicants. Hopefully there will be more
applicants in foreign letter characters, Arabic and such.
But the key thing here--and then there are other costs.
Dot-SUCKS, for example, had to spend an additional $3 million
to win an auction because they were one of three applicants for
that.
So I think the market will take care of this to some
extent.
Mr. Farenthold. I see a business opportunity in registering
.SUX.
Mr. Corwin. But in terms of pejorative terms like that,
``sucks,'' there has to be some type of public interest
standard. If that is allowed to proceed, why wouldn't we see in
the second round applications for .LIAR, .CRIMINAL, .BLOWS the
type of top-level domain that no person or company wants to be
associated with?
Mr. Farenthold [continuing]. Blake.sucks.com defensively.
Mr. Corwin. The program should provide names that people
want for positive reasons, not that they want to buy to protect
themselves.
Mr. Farenthold. Ms. Stark, did you want to add something? I
am running out of time. Quickly.
Ms. Stark. I do. I just want to say that I don't think
trademark owners in general are battling against free speech,
and that is what a total prohibition of any domain names that
contain an existing trademark would be. Trademarks are created
out of language, and there are fair uses, and there needs to be
a balance between free speech and what is intellectual property
protection.
But I will say that in such an expansive new world, every
brand owner of every size, my company included, is very
resource challenged on how we are going to adequately protect
what are valuable corporate assets that we have invested in for
decades in this new world.
Mr. Farenthold. Thank you.
I see my time has expired, Mr. Chairman.
Mr. Marino. Thank you.
The Chair now recognizes the Congresswoman from Washington,
Ms. DelBene.
Ms. DelBene. Thank you, Mr. Chair, and thanks to all of you
for being here with us today.
Mr. Misener, I wanted to follow up on the opinion on
Amazon's application for .AMAZON. It seems like it has
basically been a draw at this point. The opinion found there
wasn't a basis for ICANN to turn down your application but also
found that Amazon didn't have a clear right to have its
application granted. So I wondered if you could explain for the
Committee the process that you went through and what
information was made available concerning ICANN's decision-
making process for you, and kind of what comes next.
Mr. Misener. Thank you very much, Ms. DelBene. It really
wasn't and isn't a draw. It is a loss for us. The reason why is
we are the ones who filed the application for .AMAZON and its
Chinese and Japanese language equivalents, and we have, to
date, been denied. No one else filed for those. No one else has
intellectual property rights to those names, including the
countries in that region.
Those countries exerted influence over the Government
Advisory Committee, which then persuaded the board to deny our
applications. We followed the rules that had been developed
over that 3-year process, that multi-stakeholder process. It
was very clear in the guidelines, which are the rules that
govern the application process, that the name ``Amazon'' was
not in the prohibited class of geographic names. There is a
whole list of lists, actually, within the guidebook, a very
expansive list that includes things like Brazil and .BR and
Peru, but nowhere is Amazon included in any of these lists.
So that process, which had developed the list of lists,
just simply was ignored, under pressure from these other
governments. Unfortunately, and it pains me to say so, but the
U.S. Government ended up abstaining when they could have
objected to this treatment of an American company.
Ms. DelBene. And so what comes next now on your side?
Mr. Misener. Unclear. We have other options, I suppose,
legally. But the main thing, it seems to me, is during this
extended, now IANA transition process, ICANN should take this
opportunity to make itself whole in this regard. The adoption
of accountability reforms is coming, and those accountability
reforms should not just be applied prospectively. They should
be applied as if they existed today. ICANN always should have
been accountable, and if ICANN considers the new, improved
review processes that are going to be adopted and considers
them being applicable from Day 1, then that I think would solve
our problem.
Ms. DelBene. Thank you.
Mr. Misener. Thank you.
Ms. DelBene. Ms. Stark, I understand that part of the
process for launching the new gTLDs is that ICANN established a
committee of trademark law experts that made recommendations
for stronger and more efficient protection of trademarks, and
that many of their recommendations were adopted by ICANN,
including a newer, faster, and cheaper procedure to take down a
domain name that is violating a trademark owner's rights.
Can you compare what happened there and contrast that with
how things existed in the .com regime, and provide any examples
for the Committee of instances where a domain name was taken
down based on those rules?
Ms. Stark. I am sorry, I don't have an example just off the
top of my mind, but thank you for that question because the
rights protection mechanisms are, of course, of great concern
to INTA and all of its members. I think the new mechanism that
you are talking about is the URS system, and there is one key
difference with that that has made it maybe not the most
optimal solution for trademark owners, and that is that at the
end of the day, the domain name that is in question and that
may be problematic is not actually reassigned to the owner, the
trademark owner, at the end of that process.
So, yes, there are some efficiencies to the process, but I
think that the ultimate resolution can be less than ideal for a
lot of brand owners. So you will see that, even though it might
be more expensive and take more time, there are a lot of brand
owners who are still resorting to what is called the UDRP, the
Uniform Dispute Resolution Process, because that does include a
transfer of the domain name at the end of the proceeding.
Ms. DelBene. So do you think we have the right process in
place, or what do you think we should do differently based on
your learning now as we look towards----
Ms. Stark. You know, I would say that the process is always
evolving, as we have seen with ICANN in general, and that while
we have constantly tried to be an important voice in that
multi-stakeholder community, to achieve the right balance
between rights protection and innovation and competition and
choice and free speech, I don't know that we have totally
gotten to the right place. I think that the IPC in particular,
but as well the BC, and even the Brand Registry Group within
the ICANN community, are continuing to think hard about these
kinds of issues, and as we see new spaces get launched, and as
we see new behaviors, what we can do to make sure that the
right balance is achieved.
Ms. DelBene. Thank you.
My time has expired. Thank you, Mr. Chair.
Mr. Marino. Thank you.
I am going to recognize myself for 5 minutes of
questioning.
This question is for Ms. Stark. But, Mr. Metalitz and Mr.
Zuck, if you have a different answer, would you please respond
briefly?
Today, U.S. companies face ever-increasing intellectual
property threats as more and more Web sites provide access to
pirated content and counterfeit goods. I would like to ask
about the registrar's accreditation agreement that required new
obligations for registrars when presented with evidence of
copyright or trademark infringements or other illegal
activities.
Ms. Stark?
Ms. Stark. Thank you very much for that question. I think
that piracy, of course, is really of great concern to my
company in particular, but also counterfeit merchandise and
other products like you have talked about in the pharmaceutical
world are very important to INTA and its members. So this is an
issue very near and dear to our hearts.
What I would say is, at a minimum, what we need to see is
ICANN enforcing what already exists in the contracts. That
would be WHOIS. That would be also contract compliance. If they
have registrars who are not responding in the appropriate ways
when they are notified of this type of illegal and infringing
behavior, then there needs to be some teeth in the mechanisms
that already exist, and I think that would be the thing we
would hope to see the most.
Mr. Marino. Thank you.
Mr. Metalitz, do you find that successful?
Mr. Metalitz. Yes. I would just add to that that the
requirement that Ms. Stark is referring to is to take
reasonable and prompt steps to investigate and respond
appropriately to reports of abuse, including reports of the
kind of illegal activity you are talking about. That is what
needs to be enforced. This is not a question of any kind of
automatic takedown. It is investigating and responding
appropriately. That is not happening now, and we don't have the
transparency to even see what ICANN thinks is appropriate in
this setting.
Mr. Marino. Thank you.
Mr. Zuck?
Mr. Zuck. Yes. Piracy is a growing concern for the app
industry around the world. And so I support what has been said
before, but I would also suggest that these new accountability
measures we are putting in place is in large measure what has
been missing from the universe in which we have been operating
to date. So having the ability to actually enforce some
discipline upon ICANN and to enact real and binding reform
inside of ICANN I believe is the key to getting the kind of
contractual compliance office inside ICANN that we have all
been waiting for.
Mr. Marino. This question is for Mr. DelBianco. In
testimony before the Subcommittee last year, NTIA Administrator
Strickling spoke of the importance of ensuring a stable legal
environment for the IANA services. He subsequently informed the
Committee that while he considered the U.S. to provide such an
environment, that the stakeholders that are developing the
transition plan are better placed to examine whether ICANN
should continue to remain subject to U.S. law post-transition
or not, he declined to answer whether protections need to be in
place before the transition occurs to ensure that ICANN remains
subject to U.S. law after completion, thereby admitting the
possibility that this is negotiable.
It seems to me that it is essential that ICANN and IANA
function operators remain subject to U.S. law going forward,
and that there is no better legal environment to ensure the
continued stability of these operations. I would like the
record to reflect the opinion of you concerning this. What say
you? I know I threw a lot at you right there.
Mr. DelBianco. You did, but you started by pronouncing my
name perfectly, which comes from Marino to DelBianco. No
problem.
In an answer I gave earlier to Representative Forbes, I was
reflecting not only my own revised opinion but that of the
Community Working Group, who took a look at whether ICANN's new
bylaws should reflect a commitment that was made in the
affirmation of commitments, a commitment to maintain its
headquarters in the United States. And when you maintain
headquarters or principal offices in the United States, that
would mean that their legal presence includes the United
States.
At the Commerce hearing in the Senate in February, ICANN
CEO Fadi Chehade? repeated his commitment that they would honor
that. But the working group did not believe that any one
person's commitment would matter and that the affirmation,
frankly, could be discarded by ICANN with 120 days' notice.
So we followed through on your question by ensuring that
the bylaws of ICANN reflect that its principal offices would
remain in California, and while the community might be able to
approve a change to that, the board could not do it on its own.
The board could not change the bylaws to remove the presence in
California unless the community elected to approve that, if we
make it a fundamental bylaw. That is 75 percent of community
voting members, and we have the voting ratio set up in our
proposal. That would mean that it would be a very popular
decision to vacate the principal offices in California. It
would have to have overwhelming support, 75 percent of the
global community, not easy to get.
Mr. Marino. Thank you. My time has expired.
The Chair recognizes the Congresswoman from California, Ms.
Lofgren.
Ms. Lofgren. Well, thank you.
As the chair of the California Democratic delegation, we
thank you for keeping the facility in California.
I would like to ask unanimous consent to put in the record
a letter dated today from the Electronic Frontier Foundation,
Mr. Chairman.
Mr. Marino. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Ms. Lofgren. I would note that basically the Electronic
Frontier Foundation makes the point that those who are
suggesting that ICANN require the suspension of Internet domain
names based on accusations of copyright or trademark
infringement are effectively making the same proposal that was
the centerpiece of the Stop Online Piracy Act, otherwise known
as SOPA, that was dropped by this Committee after millions of
people melted the phone lines here in the Congress, and at that
time 83 Internet engineers warned that we cannot have a free
and open Internet unless its naming and routing system sits
above the political concerns and objectives of any one industry
or company, and that the only way a domain name registrar can
address copyright infringement accusations is by suspending its
domain name. It goes on with other issues.
My colleague, Mr. Farenthold, was talking about the
contractual obligations that ICANN has, but one of the things I
believe he did not mention that I think is key is that the
registrars are required to take an action where there is a
court order or an administrative finding, not based on mere
allegations of wrongdoing, and I think that is an essential
element that has been missing here in this discussion.
I think we are still in the brave new world of the
Internet, and one of the things that I think is interesting is
whose law applies where. In listening, Mr. Horton and Mr.
Metalitz, to your testimony, talking about Web sites that are
selling pharmaceuticals, whose law applies? If you go to a
chemist in Britain and you buy aspirin, you can get aspirin
with codeine over the counter. You can't get that in the United
States. If you go to Mexico, you can buy antibiotics over the
counter. You certainly can't do that here. But you can't buy
Sudafed in Mexico even though you can do that here.
So I notice, Mr. Horton, that your redress was really to
U.S. sites, as well as you, Mr. Metalitz, even though the Web
sites complained of were really apparently operating in other
countries and, so far as I know, complying with the laws of
those countries. For example, the Romania server that you
mentioned, Mr. Metalitz. I am not an expert on Romanian
copyright law, but I believe they do have a right to make
private copies for personal use or for what is called normal
familial groups that would probably be infringement here in the
United States. So whose law applies?
Mr. Horton. I will go first. Congresswoman Lofgren, that is
absolutely incorrect. First of all, as to your point about a
court order, ICANN has stated in writing that a court order is
not required in order for a registrar to take voluntary action
and suspend a domain name.
The rogue Internet pharmacies that we notify registrars
about are not operating legally anywhere. There is not a single
country in the world in which it is lawful to sell prescription
drugs without a prescription, to practice pharmacy without a
pharmacy license, or to violate that country's drug safety
laws. Every single domain name that we notify a registrar about
is operating illegally everywhere it targets, and most of this
is common sense. This is very easily verifiable on the face of
the Web site, like the heroin Web site that I mentioned.
Mr. Metalitz. If I can respond on the copyright issue.
Ms. Lofgren. Yes.
Mr. Metalitz. First of all, I don't have the EFF letter,
but as you read it----
Ms. Lofgren. I just got it, too.
Mr. Metalitz. I don't think anybody on this panel is
advocating what that letter says. We are advocating enforcement
of a provision that says registrars shall take reasonable and
prompt steps to investigate and respond appropriately to any
reports of abuse. There is nothing in here about automatic
takedown or without any verification. So that is point one.
Number two, on the applicable law, I think actually this is
less of a problem in the copyright area than in almost any
other area because we have a much clearer international
standard. One-hundred-seventy countries belong to the Bern
Convention. Approximately the same number of countries belong
to the World Trade Organization----
Ms. Lofgren. Well, if I may interrupt, in Britain, for
example, they don't have a First Amendment, and they broadly
constrain what we would consider to be inviolable free speech.
They outlaw some of what their press does. That would not be
effective here in the United States.
Mr. Metalitz. In copyright and in trademark as well, there
is much more of a uniform international norm than there is on
free speech issues or on any of these other issues. So, it is
not a non-issue, but----
Ms. Lofgren. Well, my time is up and, Mr. Johnson, I want
to respect his time. I will pursue this further after the
hearing, and I think there are some things that need to be
clarified.
I thank the Chairman for his indulgence.
Mr. Marino. The Chair recognizes the gentleman from
Georgia, Congressman Johnson.
Mr. Johnson. Thank you.
I would like for you to continue your comments.
Mr. Metalitz. Yes. Thank you very much, Mr. Johnson. My
only other point was, I mean, the example about private copying
under Romanian law, this is not an issue of private copying.
The itemvn.com Web site that we cite in our testimony is
streaming and allowing downloads of music that hasn't been
released yet, and before it is released it is available on that
site without any license. So this is not private copying at
all.
Mr. Johnson. So what we are really talking about is the
ICANN Government Advisory Committee enforcing the rules that
the stakeholders have agreed to in the 4-year process that it
took to come up with this applicant guidebook, and you just
want enforcement of the rules.
Mr. Metalitz. Essentially that is right, Mr. Johnson. This
is a contract that we are talking about here that was entered
into between ICANN and all of these registrars. It was a multi-
year process to develop this contract, but it is down on paper
now. Let's make sure that it is enforced and that we understand
what the ground rules are.
Mr. Johnson. And, Mr. Misener, you complain of Amazon's
adherence to the rules in applying for a gTLD which
incorporated your very name that you have a trademark on.
Though it may denote some geographic area, that geographic area
or that geographic name was not among the names that were set
forth in the applicant guide book which were to be prohibited
from being assigned. So you applied for .AMAZON, and the
countries of Brazil and Peru, through which the Amazon River
runs, objected. I don't know what the basis of their objection
was, but apparently your view would be that there was no basis
in the rules to object based on geography. So you engaged in
negotiations with those two governments and nothing happened,
and so when it went to a decision the ICANN Government Advisory
Committee recommended disapproval or denied your approval. Your
contention is that there is no basis in the rules for that
denial. What is your remedy?
Mr. Misener. Mr. Johnson, thank you so much. That was a
perfect summary of our circumstance.
The remedy, frankly, is to ensure that NTIA ensures----
Mr. Johnson. Well, outside of the NTIA adherence to its
guide book, how can you enforce, or is there some kind of
independent review? Because if you are going to have some
accountability and some reliability and transparency and a rule
of law, which is what the guidebook represents, a rule of law,
there can be disputes about the meaning and intent of the
rules, and so you would have to have some body to make a fair
and impartial decision based on the clear language of the
guidebook. What remedy exists to enable Amazon to have a day in
court, if you would?
Mr. Misener. Thank you, Mr. Johnson. There is not a good
remedy right now within ICANN. One of the proposed reforms for
ICANN accountability would establish a stronger independent
review process within the body. So that process presumably
would have allowed us to have our day in court without the
government influence that occurred. We are just afraid because,
frankly, there is very strong bipartisan support in the United
States, also support between Congress and the Administration
that the Internet should remain free of government control, and
right now it is not.
Mr. Johnson. Let me stop you right there and ask Mr.
Woodcock, why did the U.S. abstain from weighing in on the
decision as to Amazon's registration of that name?
Mr. Woodcock. Fundamentally this is an issue that I have no
particular expertise on because it is not my area.
Mr. Johnson. Excuse me. Does anybody know why? Can anybody
say why? Was it a procedural advantage that the U.S. would
retain from abstaining? Anybody know?
Yes, Mr. Zuck.
Mr. Zuck. I guess I don't know for sure what their
motivations were, but I continue to believe that the IANA
contract itself is a cumbersome and unwieldy form of
accountability, and that the U.S. finds itself in a very
difficult position to exercise its will over ICANN in that way,
and the other ways that it can exercise its will is through the
GAC, through the international organizations which participate.
But I think the replacement of that accountability mechanism
with real accountability to the community is the key going
forward.
Mr. DelBianco. And, Mr. Johnson, I wasn't in the room. None
of us were in the GAC room when they made the decision whether
to block the .AMAZON. So you can chalk it up to perhaps it was
politics. Maybe it was substantive. But more than likely, it
was about the politics that go on as Nations decide how to
support or oppose each other. But after that happened, the
ICANN board had the opportunity to respectfully say we don't
agree with your advice, and the board itself has that
opportunity. In today's world, if we don't like the decision of
the board, it is incredibly expensive, and only a few parties
would have standing to be able to challenge that board decision
and to have it be reviewed by an independent panel, and if that
panel came back and said the board was wrong, the board could
still ignore the panel.
This is why the reforms we have described would turn that
upside-down so that aggrieved parties could appeal, and if the
community, 75 percent of us, agreed, ICANN would pay the legal
fees. And if the panel came back and said your decision was
wrong, the board would have to do it over.
Mr. Johnson. Thank you.
Mr. Issa [presiding]. Thank you.
I am just going to make a very quick follow-up as a close.
In the Fiscal Year 2016 Commerce-Justice-State, language has
been inserted for a second year--it was in last year--and it
prohibits NTIA from using funds to relinquish IANA function. In
other words, until the end of the Fiscal Year 2016, this
transition would not be allowed to go forward.
Does anyone see that as anything other than the minimum
that we should do within Congress' authority? In other words,
slow down this process. It is not a renewal. It simply allows
them not to relinquish.
Yes, sir?
Mr. Woodcock. Again, I think that there is a huge
distinction to be made between the names community and the
protocols and numbers community. The protocols and numbers
community are peers, if you will, with ICANN. They develop
policy globally through the multi-stakeholder process, and the
result of that policy is merely copied over through the IANA
process.
Mr. Issa. I understand that the numbers resolve just fine,
and nobody knows that I am 143196, et cetera. The reality,
though, is that governance is a package deal, wouldn't you say?
That trying to separate them would create a greater
bureaucracy.
Mr. Woodcock. I disagree, respectfully. The three are
completely separable. There are no interconnections between
those three functions, and moving two forward on schedule would
show good faith that the U.S. Government is not willfully
impeding a global process.
Mr. Issa. Noted.
Anyone else?
Yes, sir.
Mr. DelBianco. Thank you, Mr. Issa. I believe you said it
right, governance is a package deal, especially when we are
saying that leverage is necessary to get ICANN to agree to the
rather tough reforms we are trying to impose upon them. So I do
think we should keep them together. I think the Commerce
Department will make a responsible extension of the IANA
contract, and then what Congress does with respect to the
rider, all of which are moving parts that have to overlay.
The chart I had up earlier showed that possibly the
earliest is next spring, 2016. It might well likely leak into
much later in 2016, and yet Commerce needs to have enough
leeway to spend the resources necessary to answer your
questions and to make sure that the stress tests have been
applied, to make sure that the conditions have been met. Thank
you.
Mr. Issa. Thank you.
Mr. Misener, the Administration abstained from weighing in.
Do you believe that they should have weighed in on this issue
rather than leaving it as it ended up?
Mr. Misener. Yes. They should have maintained their
opposition to this treatment of Amazon. They initially were
supportive, but 2 years ago I met with the relevant leaders of
both NTIA and State, and they told us that they were going to
abstain. We objected both on our private interests, but also on
the precedent that had been set for the multi-stakeholder model
and the U.S. support of that model and its commitment to it. We
were disappointed, for sure.
Mr. Issa. And ICANN, as I understand it, had the ability
not to issue the name, period, simply to take it back and say
it was a big mistake, we are not going to have a .AMAZON. Isn't
that right?
Mr. Misener. Well, that would have been an abrogation of
the multi-stakeholder process which came up with that very
definitive list of list of names on which Amazon was not
included.
Mr. Issa. You know, George Carlin had seven names he used
on television, only to find out it locked him out of
television. Isn't it possible, or isn't it prudent that even
when names bubble up through a multi-stakeholder process, that
when down the road you discover, like the first day of battle
you discover that your battle plan had flaws in it because the
enemy found them, shouldn't there be a process to go back
through that loop and say is it really necessary to have
.thisisstupid?
Mr. Misener. Well, certainly we are looking for an
accountability process to be adopted so that there can be
strong accountability for the organization. But we have
something like 1,600 trademarks worldwide that incorporate
Amazon, 149 different countries worldwide, including in Brazil
and Peru. Those are protected trademarks. That is our global
brand. It is our core business brand. So we feel very slighted
by the participants in the GAC who decided that some
geopolitical interest simply trumped our IPR.
Mr. Issa. It is interesting that in over 200 years of this
Nation, and obviously longer than that ago that the Amazon
River was named, nobody seemed to have come up and named their
company Amazon. And yet you do it, and the next thing you know
it is a great name for the whole world to have in a .AMAZON.
Let me just close with a question.
Mr. Johnson. Mr. Chairman?
Mr. Issa. Yes, sir.
Mr. Johnson. If I might just ask one question.
Mr. Issa. Of course.
Mr. Johnson. Is it a fact that the name .AMAZON is still
available to a different registrant?
Mr. Misener. It could be, and that is a serious concern of
ours, that this could come up in a subsequent round and then be
available to someone else who might have obtained that name,
and then we would be in a very difficult position to try to
protect our IPR worldwide.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Issa. Great question.
Earlier I named some other sites that end in .com. I just
want a yes or no because I think these two questions could be a
good yes or no. Isn't it true that the most desirable ending,
by far, is .com for almost anybody who wants it? It is the
first choice of every registrant? Is that correct? Does anyone
disagree with that?
Yes, Mr. Corwin.
Mr. Corwin. Representing a trade group of domain investors
which carefully watches what market value is placed on Web
sites, .com domains, short non-infringing dictionary words with
.com continue to command the highest price in the marketplace.
That doesn't mean it will last forever, that there won't be
other new TLDs which challenge that dominance down the road.
But in today's marketplace a good short, non-infringing name
with .com is a very valuable asset.
Mr. Issa. And .com sells first. If people go to find
something--I use GoDaddy, but you could go to any of them--they
put a name in, and if .com is available, that is the one they
take. It is even the default on many of them.
Mr. Corwin. In fact, even individuals and companies that
have acquired new TLDs, in many cases that new domain, when you
type it in, it redirects you and you end up at their older .com
Web site. So I am not saying----
Mr. Issa. It is the opposite of whitehouse.com, which takes
you to all kinds of non-.com sites.
Mr. Corwin. Yes, don't send your school child to
whitehouse.com.
I think as .brands enter the market, big corporations
advertising at .company, the consumer will start to be educated
to think more about the right of the dot. But we remain
primarily in a .com world today.
Mr. Issa. Okay, and I will get to you very quickly. But
when Network Solutions had a monopoly, when it was one place,
they made a lot of money selling these things at less than $15,
right?
I have a basic question. If we assume for a moment that the
charter of ICANN is or should be the interest of commerce--in
other words, a fiduciary obligation to promote commerce, not to
enrich themselves, or even enrich people who sell the names--
then is there any real excuse to have a $2,500 price tag on
any, absolutely any name at all? In other words, first come,
first served. If you want a name, why does that name need to
rise above the $10 that .com's are being sold for every day? I
paid more or less the $10 when I bought DEI.com years ago. I
think the price was slightly higher when Network Solutions had
it, but it was still de minimis.
Mr. Zuck. I feel like we enter into dangerous waters when
we start talking about trying to control prices in that way.
Mr. Issa. I didn't ask about controlling prices. I asked
about----
Mr. Zuck. I understand. I guess I am saying that----
Mr. Issa. But please hear the question one more time. If
the entity, ICANN, has an obligation in its charter, does or
should have, that says it exists to make that product available
at the lowest possible price, its process of putting those
names out--for example, no exclusives, sell the auction, don't
buy exclusive rights, three people buy it. So when I talk about
competition gets you an appropriate price and a monopoly gets
you a monopolistic price, I understand you are saying we
shouldn't be fixing prices, but we have an entity that has
.SUCKS and is using its monopolistic power to extort money.
My question is that if we assume that ICANN exists for the
public benefit, whether it is Amazon in your fight or any of
them, and if there were fair competition, meaning people
wanting to get these out there and nobody being able to camp on
them unless they pay the fee and own it themselves, obviously
you would have a reselling market, but in the primary, original
sale market, is there any reason cost-wise that these names
would have to cost more than $10 a year?
Mr. Zuck. Cost-wise, I don't know. But if the market will
bear that amount of money, it will show up in the secondary
market anyway. WallStreet.com sold for a million dollars. So
the truth of the matter is, whether it happens at the outset or
in the secondary market, it is going to be a function of
whether there is demand for that name.
Mr. Issa. Yes, Mr. Corwin.
Mr. Corwin. It really depends on the specific top-level
domain. As I said, there was substantial up-front investment to
apply for each one. Let me give you an example.
Mr. Issa. There was substantial up-front to apply because
that was the model ICANN was using.
Mr. Corwin. I think if it gives positive value to the
domain registrant and they believe it is worth it, and there
may be other costs involved--the American Bankers Association
and the Financial Roundtable applied for and they are getting
.bank. That is only open to regulated financial institutions.
They perceive value in that because it will be a tool for
preventing phishing and other financial scams that are carried
out through incumbent TLDs, and that validation process and
other security measures associated with a top-level domain can
justify a higher price to the registrant.
You have to investigate each case, but we don't want people
being coerced to buy domains at much higher prices than they
would ever pay if they didn't feel that if someone else gets
that name, it is going to cause them reputational harm.
Mr. Issa. There does seem to be two prices, the price when
there is competition and the price when there is extortion.
I am going to go to Mr. Collins, but I will go quickly to
you, ma'am. Go ahead, Ms. Stark.
Ms. Stark. So, I wanted to just address the principle
underlying your question, Chairman Issa, which is isn't there a
responsibility to promote commerce and competition, and I think
by extension innovation? What I would say about the .SUCKS
example is there are just over 36,000 trademarks in the
Trademark Clearinghouse today. If each of those brand owners
take their set of marks that they have in that clearinghouse
and register them in the .SUCKS space for the $2,499 it costs,
that is $90 million a year, because you have to renew those
names each year. So that is $90 million.
And I think that those costs ultimately, as with any
business, get passed on to the consumer. So when you break it
down at its heart, this turns out to be a tax on businesses and
on innovation and on consumers.
Mr. Issa. I certainly agree. It couldn't have been said
better.
Mr. Collins?
Mr. Collins. Thank you, Mr. Chairman.
Again, I think this is interesting to see the results and
also the discussion over ICANN because of the transition of
ICANN and the termination of the IANA contract. The two main
issues are, first, should we terminate that contract? Second,
are we ready at this moment to terminate that contract?
The Committee a while back, last year actually, explored
the first question in previous hearings, so my question and my
line of thought is going to focus on the second. But based on
the evidence I have seen--and I want to ask unanimous consent,
Mr. Chairman, to enter into the record a laundry list of recent
ICANN failures that should really----
Mr. Issa. Without objection, the laundry list is placed in
the record.
[The information referred to follows:]
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__________
Mr. Collins. Thank you. And my wife's part is took out, so
it is just mine.
I believe ICANN is engaged in a pattern of behavior that
indicates their lack of commitment to follow through on their
contractual obligations that exist today. A multi-stakeholder
model is effective when the community agreements are respected
and enforced and when the administrator of ICANN takes
seriously the responsibilities to live up to the commitments
they made.
I am concerned about the lack of accountability and
transparency I have observed on the part of ICANN. In fact, it
is probably like an old commercial that we have seen on TV, the
Cheez-It commercial. I just don't think they are ready, mature
enough to be baked into a system, into a cracker. This is the
part that just bothers me because there just doesn't seem to be
the understanding of the concern that most of us have and that
has been discussed here today.
So, a couple of questions. I want to start with Ms. Stark.
The first is in 2011, you told Congress that the first round of
new gTLDs would cost the business community conservatively $12
million in defensive registration fees. Some claim that that
number was an overstatement. Was it?
Ms. Stark. No. I would actually say that for some companies
that are really interested in protecting a whole host of
brands, the numbers could be even worse. In 2011, I had noted
that a large corporation might look to register maybe 300
defensive names in what was then anticipated to be about 400
spaces, and we averaged that out at just a cost of $100 a name,
right? That is how we got to that $12 million.
Well, I think the costs today remain unknown. We haven't
even delegated maybe half of the names into the space now. But
you are not looking at 400 names any longer. You are looking at
over 1,300 new spaces, and from our calculations the average
sunrise registration in the spaces that have gone forward is
more like in the $300 to $350 range when you average it across
all those spaces. So that, again, was triple what we were
talking about in 2011.
And then if you look at this .SUCKS example that we have
been discussing throughout today, you are talking about for a
single mark it costing $2,499 a year. And like I said, if the
brand owners register all the marks they put into that
clearinghouse, that is a cost to business of $90 million a
year. It is extraordinary.
Mr. Collins. It is. I want to say right here just one more
question, and it is a concern that rogue Web site operators are
increasingly engaging in domain hopping, switching from one TLD
to another to maintain their brand. For example, there are
several sites that trade on the piratebay name, even though the
sites' operators have been convicted of criminal copyright
infringement. Some of these sites are existing TLDs, the
piratebay.com, the piratebay.org, and others with new gTLDs.
Do you think it is fair that rights owners or law
enforcement take action against one domain only to have the
same problem arise, basically trading on the same name with a
different TLD?
Ms. Stark. I think that that is an extraordinary challenge
for companies like mine, and I very much appreciate you raising
it. We are always looking for ways in which to more efficiently
address these problems without having to tackle people as they
hop around the world and hop around the Internet from name to
name to name. I don't know that I have a solution to that, but
I do think that it really creates a resource challenge when
what we are trying to do is get out legitimate content to
people and spur innovation and productivity in that same
Internet world, and what they are trying to do is simply steal
it.
Mr. Collins. And I think this is something that is very
important because it is sort of the tree here. We are following
this out, and you can do it in other cases, criminal cases. You
can do it in others. But especially in this kind of case where
you have had this blatant kind of hopping around that is
against, so I appreciate that.
Mr. Metalitz, how important is it for accuracy and
integrity of the WHOIS database through the function of
accountability and the rule of law to the online ecosystem? And
also, how do these issues intersect with the public interest
commitment, the registrar accreditation agreement, and the
other ICANN standards of online accountability?
Mr. Metalitz. Thank you for that question. WHOIS is
extremely important. It is a key element of accountability and
transparency to know who you are dealing with online. ICANN was
given stewardship of this database 15 years ago, back in the
monopoly days, right after the monopoly days that the Chairman
was referring to, and it has not fared well during that period.
It is less accessible, and it is certainly less accurate,
apparently less accurate now than it was then, and we have a
problem now that 20 percent of the registrations in the gTLDs
are registered to proxy services. It just puts a barrier
between you and finding out who you are dealing with online.
I think your previous question to Ms. Stark was very well
put, and we have two problems there. One is we have some legacy
registries such as .org. So even after old piratebay.org was
brought to their attention, and piratebay has been the subject
of orders in many countries, the people who ran it have gone to
jail in Sweden for copyright infringement, even after that,
.org would not take any action on the operators of that
registry.
Then we also have a problem with the country code top-level
domains, the two-letter domains that ICANN has no control over,
and some of them have been quite cooperative, but some have
not. So this is another frontier that we still need to deal
with in this effort to try to enforce our copyrights.
Mr. Collins. And I think that is something that the
Chairman and I have worked on a great deal, because if we
continue this hopping around, if we continue this non-
transparency and this non-accountability, then we are simply
setting ways that are affecting business. It is affecting
really that ingenuity, that spirit that we are trying to
incorporate, and especially when it comes to just blatant
stealing and copyright infringement, let's just call it what it
is. So I appreciate that.
I know Amazon has had an amazing story with ICANN and the
problems there, and we could go into that. So I wanted to
recognize that fact. I have seen that. And for all of us here,
I think it is just an example that ICANN there is the problems
here, and it is not ready, and I think that is the thing we go
back to.
With that, Mr. Chairman, I yield back.
Mr. Issa. Thank you.
I am going to close with a question. It is somewhat
rhetorical, but I will let you weigh in if you want to, and it
is similar to what Mr. Zuck and I had sort of a back and forth
on.
ICANN is a California-registered non-profit. Now, non-
profits, even though they pay their CEO millions of dollars,
non-profits can only be non-profits if they, in fact, exist for
a public benefit. So ICANN, contrary to Mr. Zuck and I's back
and forth, has an obligation for service, and I am of the
opinion that in a number of examples we have seen here today,
including how they oversee, if you will, the multi-stakeholder
process, they seem to have lost track of that. And certainly
when you see that a relatively de minimis amount of money--it
cost me less than $10 to get Issa.cc, which happens to be
international, but it came through the process of you buy it
online, and a number of others--most times when you want a
name, if it is available, it costs you $10 or less. But when,
in fact, it is a name that exists for the purpose of causing
you to buy it in defense, it has an extortionary price.
My closing comments--and I will let anyone weigh in who
wants to--is doesn't Congress have an obligation, along with
the State of California I might say, to look at ICANN and say,
you know, ICANN is making a ton of money, they seem to be in
the operation of making a ton of money. It looks like in the
case of .SUCKS that they simply wanted to recover a $900,000,
$1 million IOU from a company that had failed to meet its
earlier commitments, and this deal was a way to do it with an
extra incentive to clear up an old balance.
If somebody disagrees, I would love to hear it. If you
agree, briefly, and then we will call it a day.
Mr. DelBianco. At 17 years old, ICANN is really just a
nascent institution. It is an evolving institution in the most
rapidly changing industry the world has ever seen. So, guess
what? Every year, every week, we are going to have new
problems, just like the ones you have adequately described. And
when these problems come up, we can't anticipate to say we
check the box to say they have solved all the problems that
they have, and they have solved all the problems that will ever
be in order to say are they ready.
What we really need to say is that when they make bad
decisions or implement good decisions poorly, we have got to be
able to hold them to account, challenge their bad decisions,
like this decision on the million-dollar fee to the .SUCKS. We
ought to be able to challenge it, to know about it, and if they
don't listen to what the community believes, we fire the entire
board and start with a new board under the same public service
principles.
Mr. Issa. Mr. Corwin?
Mr. Corwin. As a public benefit corporation, they certainly
have an obligation to act in the public interest, and there has
been a tremendous amount of money generated by the new top-
level domain program, about a third of a billion dollars in
application fees alone.
There is something going on right now that----
Mr. Issa. Of course ultimately, the auction process, that
is not serving the public interest. That is making them money.
The public interest is served when a company like Amazon gets
value, and I will put it in a term that hopefully you will all
agree with.
Horses running alone run slower than a horse with a jockey
on it. But a horse with a 500-pound jockey doesn't run at all.
We, in fact, have a phenomenal horse. The naming system is
what makes a string of first four and now six series of
sequential numbers actually be usable by the public. That is
the jockey that is making this enterprise work. When I type
``fox.fox'' for ``fox.com,'' I get what I want in most cases.
It works, where numbers would never do that. But if I simply
put hundreds or thousands of $10 to $2,500 purchases on the
back of an enterprise, I put a 500-pound jockey on that
enterprise, as you said so well, Ms. Stark. I am taxing an
enterprise.
That public benefit corporation has an obligation to these
companies. They have an obligation to the stakeholder. The real
stakeholder is commerce. It is not their enrichment in fees and
a new set of profiteers that simply are in the business of
hijacking the system and causing other enterprises to pay for,
effectively, a heavier jockey.
We have to end it after this.
Mr. Woodcock. I think part of the issue is that there is a
certain degree of complexity and unwieldy-ness to the current
system. The accountability measures are there to NTIA, but it
is a three-party system where the services that ICANN provides
are provided to the community, but we rely on NTIA to provide
the discipline to ICANN. Making ICANN directly responsible to
the industry so that industry can provide its own self-
governance is something I think everyone on this panel can
probably agree to.
Mr. Issa. Thank you.
This will be the very last comment because it is time to
go.
Mr. Metalitz. Yes, thank you, Mr. Chairman. If I could just
add the perspective of someone who has followed ICANN very
closely over the past 15 years and had many opportunities to
share my perspectives with this Subcommittee, which I really
appreciate.
ICANN is an experiment, and experiments don't always work
out neatly, and they don't always work out effectively at a
particular snapshot. I think if you take the longer view, many
of the problems we are talking about here show progress. These
contracts that ICANN is not yet enforcing, they didn't even
have these contracts until 2 years ago. And similarly on WHOIS,
they are taking on the problem of proxy registrations. I don't
know if they will be able to deal with it effectively, but they
weren't even taking it on a few years ago.
So I think we have to look at the bigger picture to see--
you are absolutely right, that as a public benefit corporation,
ICANN needs to serve the public interest, and I think the
oversight of this Subcommittee is an important factor.
Continued oversight will be an important factor in making sure
they do so.
Mr. Issa. Thank you, and this concludes today's hearing. I
want to thank all of our witnesses today.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses and
additional material for the record.
I thank you, and we stand adjourned.
[Whereupon, at 12:44 p.m., the Subcommittee was adjourned.]
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