ICANN may face a Trial in Indian Supreme Court

The apex organization that controls the Internet namely ICANN (Internet Corporation of Assigned names and Numbers) is all set to face the Indian Courts. A PIL is all set to be filed in the Indian Supreme Court against ICANN thanks to a Sub Contractor for domain name registration called “Net4India”.

In all probability, the Ministry of Information Technology and the registrar Open providers.com will also be the respondents.

This will perhaps be the first time that the Internet Governance system will be questioned in a Court of law because ICANN has repeatedly failed to safeguard the interests of the public.

When Internet was started, it was a US Government project. But after it was handed over to the public domain, ICANN emerged as the apex regulatory organization controlling the IP addresses and also the Domain names.

In the initial years, ICANN mismanaged the IP address allocation system under IPv4 which resulted in an inequitable distribution of available IP addresses to different countries. After the IPv6 system was introduced, the problem of non availability of IP addresses has been pushed to the background.

Then ICANN mismanaged the Domain Name system introducing multiple TLDs with inadequate control in registration and allowing overlaps of domain names.  At the same time, it used its might to stifle technology which could have brought Alternate Domain Name Systems in use. It allowed the proliferation of Phishing with complete lack of control on registration of domain names. From the initial First Cum First served basis of domain name registration, ICANN gave way to trade mark right dominated UDRP system without preventing the registration of conflicting domain names. This lead to innocent persons registering domain names only to lose it out in a IPR battle with the large corporations who owned trade marks.

Subsequently, ICANN introduced the Country Code domain names but failed to ensure proper use of the country codes so that it only multiplied the IPR issues.

More recently, ICANN gave room for Privacy Protection of WhoIs register which is a boon for Cyber Criminals.

Thus time and time again, ICANN failed in its fundamental duty to set a proper path for the Cyber Space administration.

In particular, ICANN considered domain name system as a money spinner for itself and appointed registrars with a hefty registration fee and did not exercise the required control over them.  This enabled registrars to cheat the public by allowing arbitrary pricing of domain name registrations, appointment of unverified sub contractors for domain name registrations etc leading to the public being at the mercy of the registrars and exposing the registrants to various frauds.

Now in India one of the ICANN’s faults has exploded into a major problem causing a  disruption in the Internet system.

Naavi.org had brought to the attention of the public way back in July 2017 raising a question “Is Net4India closing its operations?” .

This article highlighted the then just developing problem with Net4India appearing to indulge in some accounting malpractices and failing to respond to customer queries.

In more recent times, the problems escalated and Naavi.org  followed up with  the following several articles

ICANN Has to find a solution to Net4India problem
ICANN should release Domain Secret Code for transfer on request from the Consumer
Net4India discontinuance of service..Towards finding a solution

Unfortunately, the MeitY appeared to be completely oblivious of the seriousness of the issue. The India representative of ICANN Mr SamiranGupta failed to find a solution and ICANN was totally disinterested.

As a result today thousands of customers of Net4India are having problems of not being able to renew their domain names transfer their domain names. Many have their hosting stuck up, E mail servers not serviced.

Even today there appears to be nearly 73261 domains registered with Net4India and the chaos that the freezing of these domain names have created in the Indian Cyber Space is unimaginable.

At such a time, it looked funny that National Security Advisor today was speaking in a conference about “Cyber Security” without having any idea of what is the role of domain names in the healthy functioning of the Cyber Space.

It is unfortunate that the Ministry of Information Technology, is either unable to understand the gravity of the problem or is uninterested in resolving the issue.

For the records, it may be stated that Net4India may have filed an insolvency petition and neither ICANN nor MeiTy has any idea of how to tackle such a situation.

Given the fact that Naavi.org gave a three year advance warning the failure of ICANN and MeitY to find a solution during this period is simply unacceptable.

Who ever is the “Receiver” who is handing the bankruptcy proceedings should also be questioned about their inability to ensure the continuity of the service even while the proceedings of winding down is being attended to.

Since it was found out that another registrar namely Open Provider.com had some interest in Net4India’s domain activities, Naavi.org contacted them to take over the operations of the servers of Net4India so that the domain name services can be continued. Unfortunately, Open Provider replied

“Thanks for reaching out to us.

But as per our commitments with our Reseller, we do not target their end customers and it will be against our protocol to on-board our Resellers end customer. 

However, you are free to use our services for all your new registrations. 

Incase if you are facing any problems, please mention it so I can pass this information and ask them to respond you. “

Obviously this registrar to whom Net4India may be financially related in some form is not interested in resolving the customer issue and is speaking of “ethics” of business.

Naavi.org has been receiving a number of queries from individuals and companies about what is the solution to this problem.

Though Naavi.org has tried to elicit response from MeitY, Mr Samiran etc, there is no response from any of them.

It is therefore time that a PIL is required to be filed in Supreme Court with a request for ICANN to introduce an automatic system of transfer of domain registrar services to an alternative service provider in case of such defaults.

It is also the responsibility of the Ministry of IT in India to ensure that under the Intermediary Guidelines of ITA 2000, the registrars should be made answerable for such defaults.

At present, Net4India has committed a fraud on the public by first causing denial of service and then disabling some of their services with a view to shut off enquiries from the customers. A criminal case can be filed on this company and appropriate changes need to be brought to ITA 2000 to prevent such happenings in future.

Some advocates are already planning to file a PIL on this matter and I urge them to expedite their petition and ensure that they make MeitY, the Receiver to the bankruptcy proceedings, Openprovider.com as well as the ICANN and its India representative parties to the suit.

Naavi.org has also urged clients at different places to file adjudication applications with the respective adjudicators in their states so that they can also take up the complaints and try to find solution.

Looking forward to the PIL lawyers who understand the issue to act without further delay.

Naavi

P.S: Submitted the following complaint at ICANN today on 19th September 2020..at https://www.icann.org/complaints-office

A domain name registrar by name ‘ net4india’ operating from Delhi, India has ceased operations. It is not issuing AuthCode for transfer of domains, not responding to any customer queries. It is receiving inward payments with no accountability. Over 70000 domain names may be in the limbo along with e-mail services, domain hosting services.

There is a need to transfer the registry to another operating registrar immediately.

For the future a system has to be made available to handle such withdrawal of registrars from business.

Problem was first pointed out in July 2017 by Naavi.org and more recently a number of persons have reported the issue in India to authorities including Mr Samiran Gupta, the ICANN representative.

If ICANN does not handle the issue immediately, a class action suit may be filed against ICANN and its executives.

Request immediate attention and action.

 

 

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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