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SiteFinder's Revenge: VeriSign Sues ICANN
Posted by James Grimmelmann on Thursday, February 26 @ 21:19:12 EST Contracts
The most evil organization behind the 'Net is suing the most inept. At stake: ICANN's (so far sucessful) attempt to keep VeriSign's SiteFinder "service" from redirecting failed DNS lookups to VeriSign advertising. The complaint (parts 1 and 2) has a real "bring it" tone, mixing antitrust claims with purely contractual ones.

Tech-law acolytes may be forgiven for thinking that we are, if anything, already suffering from a surfeit of end-of-civilization-as-we-know-it lawsuits -- SCO vs. Linux, the DoJ vs. civil liberties, the RIAA vs. sanity, the DMCA vs. everybody. All the same, this one has the distinct whiff of Ragnarok about it. On one side, there are the forces of ICANNgard, once wise and haughty, but made impotent by their own foolishness. And on the other, VeriSoki, trickster and bringer of chaos, leads the frost giants bent on destruction. None shall survive.

Folks like Froomkin have been warning us for years that something like this was coming. ICANN has failed to make itself an accountable, representative body, drifting for years in a limbo between pubic and private, between appointed and elected. As a matter of judicial review, of fundamental fairness and due process, of basic principles of governance, this instability had to end sooner or later. But why oh why oh why did it have to be VeriSign?

The really interesting question here, I think, is how ICANN will respond. Contractually, it could reply to VeriSign's claims on their face -- assert that it is in compliance with the 2001 agreement between the two. This would be a messy question of contractual interpretation, just the same as if ICANN and VeriSign were two regular old businesses selling widgets to each other. Interestingly, I don't think VeriSign's complain puts in issue the question of whether ICANN would have authority to stop VeriSign from setting up Sitefinder (and its other various services) if the 2001 contract didn't exist. That is, VeriSign seems willing to leave unlitigated the question of ICANN's right to control DNS, if ICANN is also willing not to go there. So ICANN might choose to avoid the really ugly administrative law questions, perhaps because it could get utterly and totally screwed if it lost on them.

Then again, ICANN might come back with a reply that it has sweeping authority in this space, authority of the same degree that a governmental agency would have. This might be a quite reasonable pleading response to the antitrust claims -- rather than fighting on the specific facts, ICANN could try to say that it's immune from antitrust suits in general. Given the huge range of things that ICANN does more or less by fiat, if ICANN isn't immune from antitrust liability, we're talking Twilight of the Internet Gods.

ICANN is not good. I'm more than a little scared of ICANN. But not nearly as scared as I am of some of the things that could happen as a result of this lawsuit. Folks like Froomkin have been warning us for years

 
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