Verisign recently informed ICANN that it had received a letter from the National Institute for Standards and Technology (NIST), an agency of the U.S. Department of Commerce, regarding the proposed auction of o.com described in the Second Amendment to the .com Registry Agreement agreed to by ICANN and Verisign in March 2019. This letter, which doesn’t appear to be on official letterhead, is from a NIST Grants Officer and purports to overturn a letter raising objections to the auction that was sent to Verisign on official letterhead and digitally signed by a politically-appointed and duly-authorized Acting Assistant Secretary of the cognizant agency for overseeing and managing the U.S. government’s Internet policy interests and, specifically, Cooperative Agreement NCR 92-8742, which is widely known and referred to as the VeriSign Cooperative Agreement.

So, a career civil servant and clerical bureaucrat working at NIST have, in the absence of politically-appointed leadership of NTIA (an entirely different agency), exercised delegated authority to countermand objections that were put forth by the last politically-appointed leader of NTIA and has done so without even bothering to put the letter on any sort of official letterhead or digitally signing it.

That’s fun.

Regardless, it seems like this letter might be best seen as “a lotta bit” of presumptuous bureaucratic overreach and one wonders whether Adam Candeub, a Michigan State law professor and formerly politically-appointed and duly-authorized NTIA chief, agrees with the letter’s unsupported assertion that he misinterpreted “certain provisions of the Cooperative Agreement.” The letter doesn’t offer any analysis or information to support this accusation beyond the prognostication of a bureaucratic clerk and so perhaps he will weigh in at some point and, if he does, he might consider that in their zeal, the bureaucrats appear to have ignored the full landscape of agreements and restrictions that exist as well as other factors including:

1. ICANN is violating its Bylaws (Section 2.2 RESTRICTIONS) and its InterNIC license agreement with the Commerce Department in order to profiteer from warehoused and cybersquatted domain names;
2. The InterNIC license agreement between ICANN and the Department of Commerce—which merges the Memorandum of Understanding by direct reference—requires ICANN to defer to all of the extant terms of the Cooperative Agreement whenever an inconsistency arises between the .com Registry Agreement and the NTIA-VeriSign Cooperative Agreement. ICANN is not a party to the Cooperative Agreement but, pursuant to its InterNIC license agreement, has agreed to defer to its terms;
3. Amendment 35 to the NTIA-VeriSign Cooperative Agreement spells out specific “Designated Terms” requiring VeriSign to seek and obtain prior written approval of DOC and both parties—VeriSign and DOC—agreed to ignore without deleting or otherwise amending the rest of the Cooperative Agreement;
4. These “Designated Terms” ignore Article 3.G of the base 1993 Cooperative Agreement requiring approval for changes to “user-based fee structures” and which hasn’t been deleted or otherwise amended;
5. None of the amendments to the Cooperative Agreement—including Amendment 35, which VeriSign negotiated, signed, and is, presumably, happy with—delete the Article 3.G provision of the original Cooperative Agreement and which, therefore, remains in force; and,
6. ICANN is bound by the InterNIC licensing agreement (and merged MOU) to all of the extant terms of the NTIA-VeriSign Cooperative Agreement, regardless of what VeriSign and NTIA have agreed to ignore for purposes of their contractual relationship.

That the NIST bureaucrat didn’t consider the implications of the InterNIC licensing agreement is unsurprising since the licensing agreement is being obscured from view on an orphan page of the NTIA website that isn’t accessible except by navigating directly with the specific link typed into a browser address bar. However, the NIST civil servant—along with “program and legal staff of the National Telecommunications and Information Administration and the Department of Commerce’s Office of General Counsel, Federal Assistance Law Division”—don’t appear to have considered that ICANN is violating its Bylaws by warehousing and cybersquatting on o.com in the first place.

About half of NIST’s letter expends great energy for disparaging a former politically-appointed head of NTIA while also exhaustive creativity in spelling out the author’s “delegated authority” in order to posture for contradicting objections raised by a duly-authorized agency head and while the agency in question, NTIA, is still waiting for the Biden Administration to appoint a new Administrator. In the process of this bureaucratic coup d’etat the bureaucrats miss the point—and the official letterhead—entirely.

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