[At-Large] Role of ICANN in US/Verisign seizures of .com domains

Wed Mar 7 09:52:47 UTC 2012

From the easyDNS blog: http://goo.gl/jt3oq

## Verisign seizes .com domain registered via foreign Registrar on
behalf of US Authorities.

Written by Mark Jeftovic on February 29, 2012

Yesterday Forbes broke [the news that Canadian Calvin Ayre and partners
who operate the Bodog online gambling empire have been indicted in the
U.S.][], and in a blog post [Calvin Ayre confirmed that their bodog.com
domain had been seized by homeland security][]. As reported in Forbes
([hat tip to The Domains][] for the cite),

> According to the six-page indictment filed by Rosenstein, Ayre worked
with Philip, Ferguson and Maloney to supervise an illegal gambling
business from June 2005 to January 2012 in violation of Maryland law.
The indictment focuses on the movement of funds from accounts outside
the U.S., in Switzerland, England, Malta, and Canada, and the hiring of
media resellers and advertisers to promote Internet gambling.
>
> “Sports betting is illegal in Maryland, and federal law prohibits
bookmakers from flouting that law simply because they are located
outside the country,” Rosenstein said in a statement. “Many of the harms
that underlie gambling prohibitions are exacerbated when the enterprises
operate over the Internet without regulation.”

That is a truly scary quote but we'll emphasize that: "The indictment
focuses on the movement of funds **outside the U.S.**" and that you
can't just "flout US law" by *not being in the US*. What also needs to
be understood is that the domain bodog.com was registered to via a
non-US Registrar, namely [Vancouver's domainclip][].

## So Here's Where It Get's Scary…

We all know that with some US-based Registrars (\*cough\* Godaddy
\*cough\*), all it takes is a badge out of a box of crackerjacks and you
have the authority to [fax in a takedown request which has a good shot
at being honoured][]. We also know that some non-US registrars, i[t
takes a lot more "due process-iness" to get a domain taken down.][]

But now, none of that matters, because in this case the State of
Maryland simply issued [a federal warrant was issued in the State of
Maryland][][1] to .com operator Verisign, (who is headquartered in
California) who then duly updated the rootzone for .com with two new NS
records for bodog.com which now redirect the domain to the takedown page.

This is exactly the scenario we were worried about [when Verisign
originally tabled their very troubling takedown proposal][]. Said
proposal was quickly retracted, but here we have the same situation
playing out anyway. Granted, this was an actual court order, to Verisign
– not a "request" from a governmental or "quasi-governmental" agency as
originally proposed.

But at the end of the day what has happened is that US law (in fact,
Maryland state law) as been imposed on a .com domain operating outside
the USA, which is the subtext we were very worried about [when we
commented on SOPA][]. Even though SOPA is currently in limbo, the
reality that US law can now be asserted over all domains registered
under .com, .net, org, .biz and maybe .info (Afilias is headquartered in
Ireland by operates out of the US).

This is no longer a doom-and-gloom theory by some guy in a tin foil hat.
It just happened.

The ramifications of this are no less than chilling and every single
organization branded or operating under .com, .net, .org, .biz etc needs
to ask themselves about their vulnerability to the whims of US federal
and state lawmakers (not exactly known their cluefulness nor
even-handedness, especially with regard to matters of the internet).

## The larger picture: root monopolies and the need to replace ICANN

The .com root will never be opened to a truly competitive bidding
process. Verisign has pretty well ensconced themselves into the .com and
.net roots indefinitely with [built-in price hikes baked into the
cake][]. I recall a conversation I once had with Tucows CEO Elliot Noss,
back when they still owned Liberty RMS (which ran the .info registry and
later sold to Afilias) – he lamented that if the .com registry bidding
process were *truly* competitive, you would see a registry operator in
there doing it for about $2 per domain. At the time the wholesale cost
of a .com domain was $6 and is now $7.85 after their latest *annual
increase* which is hard-coded into their contract.

I mention this because a truly competitive bidding process for the
registry operator job would bring out both cost competition and
stewardship competition: players who would table proposals on just how
they would respect the rights of all their stakeholders, not to mention
operators who may operate outside the United States.

**Where the fsck is ICANN in all of this?**

****They are nowhere. They are collecting their fees, pushing their
agenda of as many possible new-top-level domains and despite the fact
that SOPA, ACTA, PIPA et aim directly at the interests of their core
stakeholders, for whom they are supposed to be advocates and stewards.
ICANN is conspicuous in their absence from the debate, save for a smug
and trite abdication of involvement (i.e. "[ICANN Doesn't Take Down
Websites][]") – translation: "This isn't our problem".

And therein lies the issue. ***ICANN needs to make this their problem,
because it very much is.*** If ICANN isn't going to stand up, and
vigorously campaign for **global** stakeholder representation in these
matters, than they are not only abdicating any responsibility in the
ongoing and escalating crackdown on internet freedom, they are *also*
abdicating their right to govern and oversee it.

They need to be visible, they need to be loud and they need to come down
on the right side of these issues or they need to be replaced.

**Of course, the replacement of ICANN will never happen.** At least not
by a non-US entity, which means we are once again headed to the
unthinkable place that only crackpots and conspiracy theorists think
possible: a fractured internet with competing roots. On the bright side,
life will go on, and companies like mine will probably become
exceedingly wealthy charging every internet user in the world fees to
gain and project visibility across all the myriad internet roots that
will someday exist because governments will refuse to approach it
co-operatively. The only thing that will remain to be seen is whether
we'll be deemed "criminals" for doing so.

## Further Reading:

-   [First They Came For The Filesharing Domains][]
-   [Verisign Takedown Proposal Very Worrisome][when Verisign originally
tabled their very troubling takedown proposal]
-   [How SOPA Will Destroy The Internet][when we commented on SOPA]
-   [The Price of Freedom and The Cost of a Domain Name][fax in a
takedown request which has a good shot at being honoured]
-   [The Official easyDNS Takedown Policy][t takes a lot more "due
process-iness" to get a domain taken down.]
-   [Further Ramifications of US Government Domain Takedowns][]

## Footnote

[1] I originally was under the impression that the State of Maryland
issued the warrant, it has been pointed out to me that this is not the
case, the warrant is a federal warrant issued in the State of Maryland.

## Links

  [the news that Canadian Calvin Ayre and partners who operate the Bodog
online gambling empire have been indicted in the U.S.]:
http://www.forbes.com/sites/nathanvardi/2012/02/28/feds-indict-former-online-gambling-billionaire-calvin-ayre/
  [Calvin Ayre confirmed that their bodog.com domain had been seized by
homeland security]:
http://calvinayre.com/2012/02/28/legal/calvin-ayre-indicted-by-feds-calvin-ayre-releases-statement
  [hat tip to The Domains]:
http://www.thedomains.com/2012/02/28/feds-not-only-seize-the-domain-name-bodog-com-but-indict-the-4-ownersoperators-including-calvin-ayre/
  [Vancouver's domainclip]: http://www.domainclip.com
  [fax in a takedown request which has a good shot at being honoured]:
http://blog.easydns.org/2012/02/17/the-price-of-freedom-and-the-cost-of-a-domain-name/
"The price of freedom and the cost of a domain name"
  [t takes a lot more "due process-iness" to get a domain taken down.]:
http://blog.easydns.org/2012/02/21/the-official-easydns-domain-takedown-policy/
"The Official easyDNS Domain Takedown Policy"
  [a federal warrant was issued in the State of Maryland]:
http://cdn3.bit2host.com/wp-content/uploads/2012/02/BodogWebsiteSeizureWarrant.pdf
  [when Verisign originally tabled their very troubling takedown
proposal]:
http://blog.easydns.org/2011/10/11/verisign-domain-takedown-proposal-very-worrisome/
"Verisign domain takedown proposal very worrisome."
  [when we commented on SOPA]:
http://blog.easydns.org/2011/12/22/how-sopa-will-destroy-the-internet/
"How SOPA Will Destroy The Internet"
  [built-in price hikes baked into the cake]:
http://blog.easydns.org/2007/04/16/verisign-raises-fees-on-com-and-net-easydns-doesnt/
"Verisign raises fees on .COM and .NET, easyDNS…doesn't"
  [ICANN Doesn't Take Down Websites]:
http://blog.icann.org/2010/12/icann-doesn’t-take-down-websites/
  [First They Came For The Filesharing Domains]:
http://blog.easydns.org/2010/11/27/first-they-came-for-the-file-sharing-domains/
"First they came for the file-sharing domains…"
  [Further Ramifications of US Government Domain Takedowns]:
http://blog2.easydns.org/2012/03/05/the-ramifications-of-us-government-domain-takedowns/

-- 
Pranesh Prakash · Programme Manager · Centre for Internet and Society
PGP: 0x1D5C5F07 · @pranesh_prakash  · http://cis-india.org

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