Enhancing ICANN Accountability

[Domain Mondo <domainmondo@xxxxxxxxx>]

ICANN asks

   - What issues does the community identify as being core to strengthening
   ICANN's overall accountability in the absence of its historical
   contractual relationship to the U.S. Government?
   - What should be the guiding principles to ensure that the notion of
   accountability is understood and accepted globally? What are the
   consequences if the ICANN Board is not being accountable to the
   community? Is there anything that should be added to the Working Group's
   mandate?
   - Do the Affirmation of Commitments and the values expressed therein
   need to evolve to support global acceptance of ICANN's accountability
   and so, how?
   - What are the means by which the Community is assured that ICANN is
   meeting its accountability commitments?
   - Are there other mechanisms that would better ensure that ICANN lives
   up to its commitments?
   - What additional comments would you like to share that could be of use
   to the ICANN Accountability Working Group?

Where to start? The central issue and problem at ICANN is how the *public
interest is so disregarded*. Time, and time again, we see examples of this.
ICANN's multistakeholder model only contributes to this -- see:
http://www.domainmondo.com/2014/05/the-real-problem-with-icann.html  *What
can ICANN begin to do better? *Increase representation of* 1) domain name
registrants *and* 2) internet users (often referred to as "consumers")*
within ICANN, and* diminish the presence and voices of those with
profit-motives at stake in ICANN decisions, workings and outcomes*.

A real living example of how this plays out within ICANN:

Is It ICANN's Job To Market New gTLD Domain Names?
<http://www.domainmondo.com/2014/06/is-it-icanns-job-to-market-new-gtld.html>

Posted: 05 Jun 2014 11:38 PM PDT

Has ICANN <https://www.icann.org/> been conflicted, co-opted, and corrupted
by its new gTLD domain names program <http://newgtlds.icann.org/en/>? Is
ICANN now, in effect, a *joint venture partner
<http://en.wikipedia.org/wiki/Joint_venture>* with new gTLD registries and
registrars -- *"Pay us (ICANN) $185,000 up front (plus renewal fees)
and we (ICANN) will help YOU market your new gTLD domain names that WE have
authorized YOU to register (sell) for a PROFIT?" *

* "conflict" - an incompatibility between two or more purposes, principles,
or interests*
*"co-opt" - divert to or use in a role different from the usual or original
one*
*"corrupt" - change or debase by making alterations*

* "Marketing" - "Marketing is the process of communicating the value of a
product or service to customers, for the purpose of selling that product or
service."* (source: Wikipedia <http://en.wikipedia.org/wiki/Marketing>)

"New gTLDs <http://newgtlds.icann.org/en/>" - *New generic Top-Level Domain
Names* authorized by ICANN <https://www.icann.org/> to be offered for
registration [sold] by Registries and Registrars.


*Recently a domainer blogger asked: Who is responsible for new gTLD
marketing?
<http://www.domaininvesting.com/responsible-new-gtld-marketing/> The
answers from members of the domain name industry (registrars, registries,
affiliated companies) included:*

*"... ICANN <https://www.icann.org/>, the registries... registrars..."*

* "... I think the “we” here is primarily Registries, Registrars, the DNA
[Domain Name Association] <http://www.thedna.org/> and ICANN
<https://www.icann.org/>..."*

* "Now that new gTLDs are here, I’ve heard people suggest that ICANN
<https://www.icann.org/>, the registries, and the registrars should
be responsible for marketing them. This is a correct suggestion."*


 Really? Is *marketing new gTLD domain names* what ICANN
<https://www.icann.org/>, the Internet Corporation for Assigned Names and
Numbers, "a nonprofit corporation that coordinates the Internet's global
domain name system" [Wikipedia <http://en.wikipedia.org/wiki/ICANN>] is
supposed to be doing? Is marketing new gTLD domain names within
ICANN's purpose or mission as expressed within its articles of incorporation
<https://www.icann.org/resources/pages/articles-2012-02-25-en>, bylaws
<https://www.icann.org/resources/pages/bylaws-2012-02-25-en>, affirmation
of commitments
<https://www.icann.org/resources/pages/affirmation-of-commitments-2009-09-30-en>,
or applicable California
<http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=corp&codebody=&hits=20>
 or federal (US) law
<http://www.irs.gov/Charities-&-Non-Profits/Charitable-Organizations/Exemption-Requirements-Section-501(c)(3)-Organizations>
?

Not only is "marketing domain names" NOT within ICANN's purpose and
mission, but to do such "marketing" for *for-profit *companies appears to
be a violation of the ICANN corporate instruments and applicable state and
federal laws, for example:


Exemption Requirements - 501(c)(3) Organizations
<http://www.irs.gov/Charities-&-Non-Profits/Charitable-Organizations/Exemption-Requirements-Section-501(c)(3)-Organizations>
: *"... The organization must not be organized or operated for the benefit
of private interests, and no part of a section 501(c)(3) organization's net
earnings may inure to the benefit of any private shareholder or individual.
If the organization engages in an excess benefit transaction with a person
having substantial influence over the organization, an excise tax may be
imposed on the person and any organization managers agreeing to the
transaction. Section 501(c)(3) organizations are restricted in how much
political and legislative (lobbying) activities they may conduct...."*


 Some might argue that ICANN has already violated one or more of the legal
provisions cited above, but at a minimum, the world of ICANN has become so
*dysfunctional* that *some* ICANN <https://www.icann.org/> insiders --
registries, registrars, and other *for-profit* domain industry members
<http://www.thedna.org/> -- *actually believe* ICANN is supposed  to do the
"marketing" of the new gTLD domain names for *them*-- for the registries
and registrars which were *authorized* by ICANN to offer said new gTLD
domain names for registration!


Somehow, in the world of ICANN <https://www.icann.org/>, the *interests* of
the *regulated* (registries and registrars) and the *regulator *(ICANN) *have
become one*, at least in the minds of many. Is this what happens when a
non-profit corporation, lacking proper oversight, transparency and
accountability, becomes dominated by insiders and the special interests of
the commercial, for-profit domain name industry it is supposed to be
regulating and governing; when ICANN's Chief Strategy Officer (and
architect of the new gTLDs program)
<http://www.domainmondo.com/2014/05/icann-kurt-pritz-conflict-of-interest.html>
 *resigns due to a conflict of interest** (the particulars of which were
never disclosed to the global multistakeholder community),* and then
becomes the Executive Director of the Domain Name Association
<http://www.thedna.org/>, a lobbying group of that same for-profit domain
name industry?

Is this why that same Domain Name Association
<http://www.thedna.org/news_dna_auction_plan.php> has now jumped into the
middle of *ICANN's new gTLD auction process*, to grab the money for itself
and "marketing?"-- Domain Name Association
<http://www.thedna.org/news_dna_auction_plan.php>: *"The proceeds will be
distributed as follows: First: Fees for the auction provider will be paid.
Second: Disbursements, if any, will be made to auction participants. Third:
Optional membership fees in the DNA will be paid. All remaining proceeds
will go to the DNA <http://www.thedna.org/news_dna_auction_plan.php>. The
auction winner will determine how those proceeds are allocated between
funding TLD marketing and awareness campaigns and funding other DNA
<http://www.thedna.org/news_dna_auction_plan.php> industry development
efforts."*

Sounds like ICANN should j*ust shut down* and *turn everything over to DNA
-- the Domain Name Association <http://www.thedna.org/>*! Or more likely,
ICANN will just *contract* with the DNA <http://www.thedna.org/> to perform
all of ICANN's functions!


*I think it is now clear why the public interest
<http://en.wikipedia.org/wiki/Public_interest> was
so disregarded in ICANN's new gTLDs program
<http://newgtlds.icann.org/en/>--*


 *“'The public at large, consumers and businesses, would be better served
by no expansion or less expansion' of domains"* said Jon Leibowitz, former
chairman of the US Federal Trade Commission in the New York Times
<http://www.nytimes.com/2013/08/18/technology/when-you-cant-tell-web-suffixes-without-a-scorecard.html?smid=pl-share>
."


"I really can’t see a legitimate upside where new benefits [of the new
gTLDS] outweigh costs, and everyone I mention this to feels the same way.
People just shake their heads. *It’s all about the money.* They [ICANN] are
creating these extensions because they can." University of Pennsylvania
Wharton School marketing professor Peter Fader, co-director of the Wharton
Customer Analytics Initiative <http://www.wharton.upenn.edu/wcai/>.
(source: Knowledge@Wharton
<https://knowledge.wharton.upenn.edu/article/domain-name-land-rush-room-companies-competition-scam-artists/>,
emphasis added)

Esther Dyson On New Top-Level Domains: “There Are Huge Trademark Issues” |
TechCrunch
<http://techcrunch.com/2011/07/21/esther-dyson-top-level-domains/>: "... we
are not running out of domains. *This is a “way for registries and
registrars to make money*,” says Dyson. She also points out that “there are
huge trademark issues. I just think it is offensive... It will create a lot
of litigation.”" [see: Esther Dyson Told ICANN new gTLDs were a mistake in
2011 (video)
<http://www.domainmondo.com/2014/03/esther-dyson-told-icann-new-gtlds-were.html>
]

Tim Berners-Lee
<http://www.domainmondo.com/2014/05/tim-berners-lee-on-icann-new-gtlds.html>:

*"....when a decision is taken about a possible new top-level domain,
ICANN's job is to work out, in a transparent and accountable
manner, whether it is really in the best interest of the world as a whole,
not just of those launching the new domain. It also means that ICANN's use
of the funds should be spent in a beneficent way...." *
Memo to ICANN <https://www.icann.org/>: money spent on "marketing new
gTLDs" is NOT a "beneficent way."


Respectfully submitted,

John Poole, Domain Mondo, 6 June 2014

http://www.domainmondo.com

<http://www.domainmondo.com/>