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In the wake of RegisterFly, is ICANN taking flight?

Only the paranoid survive

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In the aftermath of the ICANN meeting in Lisbon, the RegisterFly disaster continues to inspire both litigation and paranoia.

Those connecting the dots are convinced that an ICANN report debated at the Lisbon meetings exploring the possibility of changing ICANN to an international organization along the lines of the International Red Cross is an attempt by ICANN to slither out of this whole mess. A plaintiff in North Carolina has started a class action against RegisterFly, Enom, and ICANN over her ruined business; ICANN is suing RegisterFly to force it to turn over the authcodes to enable a bulk transfer of domains; and RegisterFly is demanding arbitration as provided for in its Registrar Accreditation Agreement (RAA). Other plaintiffs wait in the wings.

A change of character for ICANN would provide a gloss of independence from the smothering bosom of the American Department of Commerce (DOC), as well as potential protection from American litigation. It would also comport with ICANN’s stated goal of becoming a truly international organization reflective of the international reach of the internet itself. Of course, it begs the question: just what does ICANN have in common with the Red Cross? And why would ICANN need a structure that virtually eliminates accountability when more accountability is what the ICANN stakeholders keep demanding?

ICANN has made great strides in providing improved access and clarity to its website recently, and it would be unfortunate if ICANN has adopted a one step forward, two steps back approach to its problems. ICANN currently is a nonprofit corporation based in Marina Del Ray, California. Say what you will about the litigious nature of American society, but American-style litigation keeps us all on our toes, including ICANN. Why would ICANN need Red Cross-style international legal protections when it’s not out saving refugees and inoculating babies like the Red Cross?

The international organization that ICANN does have something in common with is one famous for its opaqueness and arrogant lack of accountability, the International Olympic Committee (IOC). ICANN’s not saving the world. Like it or not, ICANN is engaged in commerce, not charity work, although it is a California nonprofit corporation. The IOC, too, is engaged in commerce, which is marketing the Olympics and extorting stadium facilities out of local communities. It would be unfortunate if ICANN were to take advantage of the RegisterFly mess as an excuse to lock itself away from public opinion the way the IOC has.

Of course, ICANN is already named in the RegisterFly class action, and no midstream change in corporate structure will get them out of that lawsuit. It would, however, make it more difficult for similar lawsuits to proceed in the future. A move to Switzerland, say, would be even more frustrating. Considering the fact that ICANN did not drop the hammer on RegisterFly until after the plaintiff’s attorneys dropped the hammer on ICANN, the ICANN community might think twice about letting ICANN off the hook.®

Burke Hansen, attorney at large, heads a San Francisco law office.

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