ICANN | Declaration of Daniel E. Halloran in Support of Defendant's Opposition to Plaintiff's Motion for Preliminary Injunction | 15 September 2003

 

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Declaration of Daniel E. Halloran in Support of Defendant's Opposition to Plaintiff's Motion for Preliminary Injunction

(15 September 2003)


Jeffrey A. LeVee (SBN 125863)
Emma Killick (SBN 192469)
Courtney M. Schaberg (SBN 193728)
Jones Day
555 West Fifth Street, Suite 4600
Los Angeles, CA 90013
Telephone: (213) 489-3939
Facsimile: (213) 243-2539

Attorneys for Defendant
INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS


UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

DOTSTER, INC., GO DADDY SOFTWARE, INC., and eNOM, INC.,

Plaintiffs,

v.

INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS,

Defendant.


 

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Case No. CV03-5045 JFW (MANx)

DECLARATION OF DANIEL E. HALLORAN IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Date: September 29, 2003
Time: 1:30 p.m.
Courtroom: 16

{Original date: October 6, 2003}

Before the Hon. John F. Walter


TABLE OF CONTENTS

I. The Internet 1
II. ICANN 4

III. VeriSign's Wait Listing Service

4

IV. Effect of the WLS

6

V. The Plaintiff's "Wait-Listing Services"

7

VI. Consensus Policies

8
VII. Decision to Proceed with WLS 13
VIII. VeriSign's Recent Representations 14

IX. Adopting and Implementing The WLS Is In The Public Interest

14

X. Why a Bond is Necessary

15

I, Daniel E. Halloran, declare:

  1. I am an attorney admitted to the State Bar of California, and I am the Chief Registrar Liaison and Acting Secretary of defendant Internet Corporation for Assigned Names and Numbers ("ICANN"). I have worked for ICANN since May 2000. I have personal knowledge of the matters set forth herein and am competent to testify to those matters. I make this declaration in support of ICANN's Opposition to Plaintiffs' Motion for Preliminary Injunction.
  2. This litigation concerns a proposal by VeriSign to offer a Wait Listing Service ("WLS") for the .com and .net top level domains of the Internet. In order to understand the WLS and the plaintiffs separate contracts with ICANN (known as the Registrar Accreditation Agreements ("RAA")), it is first necessary to understand the manner in which the Internet’s domain name system works.

I. THE INTERNET

  1. The Internet is a vast network of interconnected computers and computer networks. Every computer connected directly to the Internet has a unique number. These numbers, which are known as Internet Protocol (“IP”) addresses, are necessary for computers to communicate with each other over the Internet. An example of an IP address might be: 98.27.241.30.
  2. Because IP addresses can be cumbersome and difficult for Internet users to remember or to use, the IP address system has been overlaid with a more user-friendly system of "domain names," which associates a unique alpha-numeric character string with a specific IP number.
  3. Internet domain names consist of a string of “domains” separated by periods. “Top level” domains, or “TLDs”, are found to the right of the last period and include (among others) the domains “.com,” “.gov,” “.net” and “.biz,” which are sometimes referred to as “generic” TLDs (known as “gTLDs”), and domains assigned to countries or sovereign bodies such as .us, .fr, and .uk, referred to as “country code” TLDs (known as “ccTLDs”). “Second level” domains (“SLDs”) are those immediately to the left of the top level domains, such as “uscourts” in “uscourts.gov.”
  4. There are approximately 250 different top level domains, including both gTLDs and ccTLDs, administered and operated by numerous different entities, both inside and outside of the United States. There are over 50 million total SLDs within all the various TLDs.
  5. Because domain names are essentially “addresses” that allow computers connected to the Internet to communicate with each other, each domain name must be unique, even if it differs from another domain name by only one character (e.g., “uscourts.com” is different from “uscourt.com” or “us-courts.com”). A given domain name, therefore, can be registered to only one entity or person.
  6. VeriSign is the “registry” for the SLDs in .com and .net TLDs. A registry operates like a phone book, keeping a comprehensive listing of all registered domain names and making sure that no two domain names are exactly alike. Thus, VeriSign maintains the definitive directory that associates registered domain names in these TLDs with the corresponding IP addresses of the respective domain name servers. These domain name servers are independent of the registry and, accordingly, beyond its control. The domain name servers, in turn, associate the domain names with resources such as websites and email systems on the Internet.
  7. A domain name does not exist until it is registered in the registry’s master database. The individual or organization that requests the specific registration of a domain name is a referred to as the “registrant.” Prospective registrants must register desired domain names through companies that act as domain name “registrars” for the .com and .net TLDs. A registrar is responsible for selling these domain names and coordinating those operations with registries. Registrars provide direct services to registrants and prospective registrants. Registrars have a contractual relationship with registrants and keep all information as to the registrant. Typically, those contracts last one or two years, and at the end of that term, the consumer is given the option to renew the contract so as to retain that particular domain name. Neither ICANN nor VeriSign (in its capacity as a registry) has a contractual or other relationship with a registrant.
  8. Registering, transferring, and deleting a domain name requires interaction between a registrar and the registry. This interaction is highly structured and automated, and it takes place through a Registry-Registrar Protocol (“RRP”). Registry-registrar communications occur over a secure electronic connection. The registry’s role is entirely passive and automated – namely to process registrars’ domain name registration requests on behalf of registrants, comparing those requests against the registry tables of registered domain names to prevent duplicate registrations of the same domain name and registering the domain name in the registry database if it is not already registered.
  9. Registrars initiate all changes to the registry database with respect to a particular domain name record by issuing electronic commands to the registry, such as “add,” “check,” “delete,” “transfer,” and “renew,” all as more fully described in the RRP.
  10. Registrars submit their registrants’ registration requests to the applicable TLD registry to determine if a requested domain name is available for registration, i.e., that the domain name is not already registered to someone else. In connection with VeriSign’s operation of the registry for the .com and .net TLDs, if a requested domain name is not already in the registry’s database, the registry’s computer will record the new domain name, the corresponding nameservers associated with the new domain registration, and the name of the registrar effectuating the registration for the customer-registrant, in its master database. The registration process is then complete.

II. ICANN

  1. ICANN is a not-for-profit corporation that was organized under California law in 1998. ICANN is responsible for administering certain aspects of the Internet's domain name system.
  2. In November 1998, the United States Department of Commerce (“DOC”) first entered into a Memorandum of Understanding (“MOU”) with ICANN. The MOU granted ICANN responsibility for, among other things, the technical management of the domain name system. A true and correct copy of the MOU, as amended to date, is attached hereto as Exhibit 1. ICANN continues to operate today pursuant to the MOU, which provides the context for most of ICANN’s activities. The DOC, however, retains ultimate approval over many of these activities, as explained in the MOU.
  3. Pursuant to the MOU, ICANN has entered into Registrar Accreditation Agreements (“RAA”) with registrars that permits those registrars to sell the right to use domain names in a particular domain (such as ".com," ".net," and ".biz"). ICANN has entered into separate but identical Registrar Accreditation Agreements with more than 170 Internet domain name registrars. Only ICANN-accredited registrars can register domain names in gTLDs. A true and correct copy of the standard Registrar Accreditation Agreement is attached hereto as Exhibit 2.

III. VERISIGN'S WAIT LISTING SERVICE

  1. Beginning in late 2001, VeriSign proposed to offer the WLS at the registry level. The WLS would operate by permitting ICANN-accredited registrars who contracted with VeriSign to offer the service, acting on behalf of customers to place reservations for currently registered domain names in the .com and .net top-level domains. It is important to note that the offering of WLS is a voluntary service that can be offered by registrars contracted with VeriSign. That is, a registrar can be ICANN-accredited to register names in both the .com and .net gTLDs, and decide not to elect to offer WLS. Only one reservation would be accepted for each registered domain name. Each reservation would be for a one-year period. WLS reservations for names would be accepted on a first-come/first-served basis, with the opportunity for renewal. VeriSign would charge the registrar a fee, which would be no higher than $24.00 for a one-year reservation and would be the same for all registrars. The registrar's fee to the customer would be established by the registrar, not VeriSign. In the event that a registered domain name is not renewed and is thus to be deleted from the registry, VeriSign would check to determine whether a reservation for the name is in effect, and if so would automatically register the name to the customer. Or, if there were no reservation, VeriSign would simply delete the name from the registry, so that the name is returned to the pool of names equally available for registration through all registrars, also on a first-come/first-served basis.
  2. VeriSign has proposed to implement the WLS for a twelve-month trial. At the end of the trial, VeriSign would evaluate whether the WLS was a service that should be continued, in discussion with ICANN. In the event the WLS is not continued, reservations extending beyond the trial would be honored.
  3. In order to provide this service and charge a fee, VeriSign is required by its registry agreement with ICANN to obtain ICANN's approval to modify that agreement, which requires a modification to the registry agreement for the offering of any new registry service for which a fee will be charged. In addition, the MOU between ICANN and the U.S. Department of Commerce, requires ICANN to submit for DOC approval any material change to the .com and .net registry agreements between ICANN and VeriSign.

IV. EFFECT OF THE WLS

  1. The WLS does not affect current domain name registrations at all. An existing registrant will continue to be the registrant of its domain name for so long as it continues to renew the domain name in a timely fashion and to meet the requirements of its chosen registrar. A WLS subscription matures into an actual domain name registration only when a domain name is finally deleted by the registry after the end of all applicable grace periods after receiving a specific request from a registrar to delete a domain name.
  2. The WLS will not change the manner in which a deleted domain name is processed when there is no WLS subscription for the domain name. At the end of the grace period, if the domain name has not been redeemed or renewed, the deletion of the domain name is effectuated by the registry and the domain name ceases to exist in the registry database until and if registered again at some time in the future. In the absence of a WLS subscription, the deleted domain name becomes available for creation and registration through any ICANN-accredited registrar on a first-come/first-served basis, just as it was before the WLS.
  3. However, if the deleted domain name is the subject of a WLS subscription, the domain name is automatically added to the registry database, using the WLS data supplied by the registrar sponsoring the WLS subscription at the time the subscription was created. The WLS “subscriber” then becomes the new registrant of the domain name. The registry, through its automated system, notifies the subscription registrar, which updates its registration record to reflect the new domain name registrant. The subscription is cleared from WLS, and a new WLS subscription order can be placed for that domain name through any accredited registrar.
  4. All ICANN-accredited registrars will have an equal opportunity, at the same wholesale price, to participate in the WLS. Registrars also have the option of not participating, since the WLS is an entirely optional service. Indeed, some registrars may elect not to offer the WLS, while others might invest substantial resources marketing their WLS services. Those registrars that elect to offer WLS services likely will compete on the basis of price, among other things. And those registrars who elect not to participate in the WLS may still register, delete, transfer or otherwise make registered domain names available in the secondary market (e.g., auctions, person-to-person transactions, etc.). ICANN has no input into or control over whether registrars participate in the WLS; each registrar will make its own decision.
  5. Registrars participating in WLS will be in brisk competition with each other with respect to offering the WLS. The WLS services at the registrar level might be differentiated through customer service, marketing, registrar value-added services, or other creative actions, and through retail pricing. Moreover, registrars can offer the WLS in conjunction with or to support other recently deleted domain name services with ample differentiation as between those services. Registrars may also elect to continue to offer the deleted domain services they offer currently, in competition with the WLS.

V. THE PLAINTIFFS’ “WAIT-LISTING SERVICES”

  1. Presently, several registrars, including the three plaintiffs, provide their own forms of "wait list services" at the registrar level, although these services are much different than the WLS. According to plaintiffs, about 50 of the 170 ICANN-accredited registrars offer some type of “wait list service.” Under each of these services, a consumer who wants to register this name may sign up in advance, and in many cases pay in advance, for the opportunity to try to obtain that name when and if it is deleted at some point in the future. Upon receiving such a request from a consumer, the relevant registrar would then watch for the particular name to be deleted and, if and when that happened, immediately attempt to register it. However, none of these services can provide a customer with any certainty that a particular domain name will be registered to it (if and when the name is deleted from the registry) because there may be numerous registrars that have sold to different customers the chance to obtain the right to use the very same deleted name, and only one of those registrars will be successful in registering that name for its customer.
  2. In contrast to the various “wait list services” offered by plaintiffs and other registrars, the WLS would permit a consumer to sign up with any participating registrar to be placed on the waiting list for a particular name if there was not already a WLS registration for that name, and such a registration would guarantee that consumer the right to register that particular name should it subsequently be deleted. None of the “wait list services” presently offered by any registrar can provide this type of guarantee.

VI. CONSENSUS POLICIES

  1. Plaintiffs mischaracterize the proposed new WLS as a change in "policy" for ICANN, and assert that because instituting the WLS is a policy, it falls within the requirements of section 4 of the Registrar Accreditation Agreement, which mandates that certain consensus activities must take place before a new policy or specification is adopted and implemented.
  2. Under subsection 4.1 of the RAA, all ICANN-accredited registrars agree to comply with new or revised "policies" that apply to all registrars and are developed during the term of the agreement, provided they are established according to a consensus process described in subsection 4.3 and on topics prescribed in subsection 4.1.2. Registrars thus contractually agree that, through this process, they may be compelled to take action in compliance with a duly-established Consensus Policy without an amendment to their RAAs.
  3. Although not defined in section 4.3.1, section 4.3.5 of the RAA makes clear what qualifies as a policy, which are those policies with far-reaching effect and binding on all accredited registrars.
  4. ICANN has only two consensus policies affecting the ICANN-accredited registrars that are currently in effect, while two proposed policies are still working their way through the steps laid out in 4.3.1 of the RAA. For example, the procedure set forth in 4.3.1 was used for the WHOIS Data Reminder Policy ("WDRP"). The WDRP requires that, at least annually, a registrar must present to the registrant the current Whois information, and remind the registrant that provision of false Whois information can be grounds for cancellation of their domain name registration. Registrants must review their Whois data, and make any corrections.
  5. The proposed new WLS is clearly not a policy that requires the “Consensus Policy” process. It is a service to be offered by VeriSign pursuant to the amendment of the agreement VeriSign has entered into with ICANN. ICANN is not requiring registrars to abide by, adopt, offer, or implement this proposed new service.
  6. To be clear, the WLS does not involve changes to Plaintiffs' obligations nor does it impose any obligations on any registrars. A registrar is free to participate in the WLS or not — just as a registrar is free to participate in a current form of wait listing service or not. Indeed, while some registrars do offer a current form of wait listing service, most do not. As noted above, about fifty of the approximately 170 accredited registrars are involved in some kind of wait list service for newly-deleted or soon-to-be deleted domain names. Even plaintiffs do not assert that all registrars would be affected by the implementation of the WLS.
  7. Furthermore, there is nothing in the Registrar Accreditation Agreement that requires ICANN to act only by consensus when ICANN amends a registry agreement or takes other actions that do not impose some type of policy or obligation on all registrars; if that was the case, all agreements entered into by ICANN with various parties involved in the registration of domain names and operation of the relevant domain name registries would be suspect since they were not the basis of consensus policymaking. The consensus policy language in the RAA limits what policies ICANN can require registrars to follow; the language (and the RAAs generally) has no effect at all on actions taken under, or modifications made to, ICANN’s agreements with third parties, such as registries.
  8. Under plaintiffs' interpretation, registrar consensus would be required before ICANN could enter into any agreement with a third party that might affect domain name registration, transfer, oversight, et al. in any respect. Yet, ICANN did not approve the plaintiffs’ decision to offer their own form of “wait-listing services,” nor did the plaintiffs even ask ICANN whether those services could be offered under the RAA.
  9. The consensus policy process applies in limited situations and similar provisions to those of Section 4.1 of the RAA exist in other ICANN agreements. For example, Article 4, of the forms of unsponsored TLD agreements ICANN has entered into with gTLD registry operators — such as the operators of the .com, .biz and .name registries — contains, in Section 4.1, a provision mirroring that of Section 4.1 of the RAA. And Article 4 of the forms of sponsored TLD agreements ICANN has entered into with TLD registry operators contains similar provisions regarding development of consensus policies by ICANN. None of these other agreements between ICANN and registries or ICANN and registrars envision usage of the consensus policy procedure every time a registry or registrar contemplates a new product.
  10. Contrary to the inference that plaintiffs seek to leave with the Court, ICANN has been clear from the beginning of the WLS process that neither ICANN nor the Names Council, which includes the Registrar Constituency (of which plaintiffs are a part), has ever taken the position that an amendment to Verisign's Registry Agreement to allow the WLS requires a Consensus Policy under the terms of the RAA. For example, ICANN's General Counsel recommended, in his first analysis of Verisign's request for an amendment to its Registry Agreement, "that the Board establish the following procedure for obtaining public comment to illuminate its consideration of [the WLS]" because such procedures did not already exist. Attached hereto as Exhibit 3 is a true and correct copy of the April 17, 2002 General Counsel's analysis. Subsequently, the Transfers Task Force issued a Final Report, which was adopted by the Names Council (which includes the Registrar Constituency), that assumed the Consensus Policy procedure of the RAA did not apply. Attached hereto as Exhibit 4 is a true and correct copy of the Transfers Task Force's Final Report. The General Counsel's second analysis of the WLS, which detailed the various steps ICANN was voluntarily taking to develop consensus on the WLS (if a consensus was possible), makes no reference to an RAA requirement. Attached hereto as Exhibit 5 is a true and correct copy of the August 22, 2002 General Counsel's analysis. The Board's final resolution on the WLS, which sets forth a thorough discussion of why the Board reached its decision on the WLS makes no mention of a contractually required consensus policy process. Attached hereto as Exhibit 6 is a true and correct copy of Resolution 02-5. ICANN's Reconsideration Committee later clearly stated the WLS was not a consensus policy issue. Attached hereto as Exhibit 7 is a true and correct copy of the May 20, 2003 Reconsideration Committee response. ICANN's General Counsel communications with plaintiff Dotster's counsel (true and correct copies of which are attached hereto as Exhibits 8 and 9) reiterated this point:

    "As noted in Reconsideration Committee recommendation RC 02-5, the Board's action was not taken pursuant to subsection 4.3.1. This point is not in dispute: both your 9 September 2002 letter and recommendation RC 02-5 are in full agreement on this. In fact, the Board's action on VeriSign's Wait-Listing Service proposal was not taken pursuant to any provision of Dotster's Registrar Accreditation Agreement, and does not create any obligation of Dotster under the Registrar Accreditation Agreement."

  11. Finally, ICANN's Board adopted the Reconsideration Committee's position and made yet another clear statement that the WLS is not a consensus policy issue. Attached hereto as Exhibit 10 is Resolution 02-6.
  12. Furthermore, plaintiffs have never before taken the position that an amendment to Verisign's Registry Agreement requires a consensus policy under the terms of the RAA. In the Spring of 2001, ICANN and VeriSign proposed modifications to VeriSign's Registry Agreement. Attached hereto as Exhibit 11 is a true and correct copy of the March 1, 2001 proposed revisions to the VeriSign agreement. ICANN sought public input regarding these proposed modifications. Attached hereto as Exhibit 12 is a true and correct copy of the March 13, 2001 ICANN Board Meeting Minutes reflecting the public input sought and received regarding the proposed changes to the VeriSign agreement. No consensus was reached, but ICANN decided to proceed anyway and make these substantial changes to VeriSign's Registry Agreement. Attached hereto as Exhibit 13 is a true and correct copy of the April 2, 2001 Board Meeting Minutes approving the revisions to the VeriSign agreement.
  13. ICANN is a body that seeks to develop consensus wherever possible. Indeed, that is its principal reason for existence. Attached hereto as Exhibit 14 is a true and correct copy of ICANN's bylaws. Because the Internet is a global resource, it is extremely difficult as a practical matter, and highly undesirable as a conceptual matter, for the nations of the world to seek individually to set policy for important technical elements of the Internet such as the Domain Name System. Thus, the realistic options for appropriate coordination of technical aspects of the Internet are a multinational treaty organization or a global private sector organization like ICANN, where governments and private actors come together to attempt where possible to create consensus policies that will allow the Internet to continue to grow as an engine of global commerce and communication. For now, the world has chosen the private sector route, on the theory that if that can succeed, it will be more efficient and effective than a treaty organization.

VII. DECISION TO PROCEED WITH WLS

  1. Because of its role, ICANN believed that it was appropriate to seek public input regarding the WLS as an aid to its decisional process, and therefore it invited input from various ICANN constituencies, including the Registrar Constituency of which plaintiffs are a part.
  2. This search for public input resulted in ICANN’s “Registrar Constituency” issuing a position paper opposing WLS and urging ICANN to withhold permission for its implementation on March 10, 2002. The registrars supporting the paper were those who already had their own version of a wait list service in place, including the plaintiffs in this action. Several registrars that did not offer such wait listing services dissented from the paper.
  3. On August 23, 2002, the ICANN Board determined that the WLS “promotes consumer choice” and that the “option of subscribing to a guaranteed ‘wait list’ service is a beneficial option for consumers.” For these reasons, the Board approved a resolution (Resolution 02-100), authorizing ICANN's President and General Counsel to negotiate appropriate revisions to VeriSign’s registry agreements to allow for the offering of the WLS (with certain conditions, imposed largely to address the stated concerns of registrars and other Domain Name Supporting Organization constituencies). A true and correct copy of the Minutes of the August 23, 2002 Special Meeting of the Board reflecting this resolution is attached hereto as Exhibit 15.
  4. On September 9, 2002, after the Board had approved the WLS, counsel for Dotster, Inc. (“Dotster”), filed a letter and formal request for reconsideration of the Board’s decision regarding the WLS. As is its usual practice, ICANN posted a copy of Dotster's letter on its website. A true and correct copy of Mr. Brannon’s letter is attached hereto as Exhibit 16. On May 20, 2003, ICANN’s Reconsideration Committee determined that Dotster’s request lacked merit and recommended that the Board take no action on it.
  5. July 16, 2003, plaintiffs initiated this litigation and filed a request for a temporary restraining order, which the Court denied via its order of July 18, 2003.

VIII. VERISIGN'S RECENT REPRESENTATIONS

  1. VeriSign has made public statements on its website and in other communications providing a launch date for the WLS of October 27, 2003, stating that its affiliate Network Solutions, Inc., is accepting pre-orders, and explaining that it will begin testing of the WLS shortly. However, VeriSign has not yet reached an agreement with ICANN to modify the .com and .net registry agreements between VeriSign and ICANN, nor has the DOC approved this modification to the agreements governing VeriSign's registry services, as required by the MOU. Once these approvals occur — and ICANN and VeriSign continued to negotiate the conditions for the offering of the WLS as recently as four days ago — VeriSign would still then have to undertake the significant technical and operational tasks of implementing the WLS, regardless of any testing it instigates now.

IX. ADOPTING AND IMPLEMENTING THE WLS IS IN THE PUBLIC INTEREST

  1. As noted above, several registrars and others have been providing wait-listing type services of various kinds at the registrar level. In essence, these services watch for a desired domain name to be deleted and immediately seek to register it with the registry. To do so successfully, they must be the first registrar (among the many that may be seeking the same domain name for their respective customers) to submit a registration request to the registry for the domain name after it has been deleted. The services therefore have to engage in a high-tech “race” with other registrars to “grab” a deleted domain name just as soon as it becomes available, by running automated or robotic “scripts” that continuously query the registry database by submitting “add” domain name commands for domain names that will, be deleted in an attempt to register the desired domain name. Their results for customers are entirely hit-or-miss and often provide for a confusing and exploitative experience for consumers.
  2. In addition, when the registrars with wait list services attempt to win a domain name that has just been deleted from a registry, they bombard the registry database with "add" requests that actually clog the system and, in turn, actually disadvantage the majority of registrars.
  3. Thus, the benefits of the WLS extend not only to VeriSign’s direct customers (registrars) but also to end-users (registrants and prospective registrants). The WLS provides a simple, fair, low-cost and easy to understand procedure for registering recently deleted domain names. By contrast, the wait list services offered by registrars have low efficacy rates, and the consumers who pay money for these services have no guarantee that they will get a particular domain name, even if that name is not renewed by its current registrant. The WLS, on the other hand, provides a 100% certainty that, if the domain name is deleted, the domain name will be registered to the WLS subscriber, with the attendant certainty for the WLS subscriber of knowing it is “first in line” or pre-registered for a particular domain name should it become available.

X. WHY A BOND IS NECESSARY

  1. Attached hereto as Exhibit 17 is a true and correct copy of an article from The Business Journal, November 8, 2002, regarding Go Daddy's revenues.
  2. 49. Should an injunction issue, a bond is necessary because ICANN will be dramatically affected by a preliminary injunction. Effectively, all contracts with ICANN would be rewritten with the stroke of a pen, because anyone who has agreed to the Consensus Policy procedures would have a veto over any ICANN action that they believed was inconsistent with their private economic interests
  3. A bond is also necessary to protect the public interest. ICANN is entrusted with protecting the global Internet community. If ICANN is enjoined from adopting and implementing the WLS at the expense of the public interest, then it is the plaintiffs who should have to take the risk that the public interest will be harmed. While the harm to the global Internet community is not measurable in dollars, it is substantial and worthy of requiring the plaintiffs to post a bond. Under these circumstances, a bond in the amount of $25 million or more would not be inappropriate.

I declare under penalty of perjury that the foregoing is true and correct. This declaration was signed on 15 September 2003 at Los Angeles, California.

 

__________________________
     Daniel E. Halloran

 


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