There are many ways ICANN could eventually wind up shutting down flailing registrar Epik, but it might face a nightmare of its own when it does.
Epik appears to have been suffering from serious cash-flow problems for the last several months, with some customers still complaining this week that they haven’t been paid money owed as far back as September.
It’s facing a lawsuit by a customer who says he’s owed over $300,000 over a failed domain purchase, accusations that it’s been running its escrow service without the proper paperwork, and claims that current and former executives may have “embezzled” customer money.
It’s an absolute dumpster fire that so far shows little sign of being extinguished, but unfortunately there’s very little about the situation that appears to be in ICANN’s Compliance wheelhouse.
ICANN Compliance has the right to terminate a company’s accreditation — its ability to sell gTLD domains — if that registrar breaches the terms of the Registrar Accreditation Agreement that all registrars must sign.
The RAA does not cover the secondary market, or escrow or store credit services like Epik’s doomed “Masterbucks”.
Ironically, ICANN would stand a better chance of shutting Epik down if its Whois service crashed, or if the registrar for some reason failed to publish an abuse contact on its web site.
However, if Epik is treating its ICANN fees the same way customers say it’s treating their funds, it can expect a nastygram or six from Compliance, if it has not done so already.
Most cases where ICANN ultimately terminates a registrar’s accreditation begin when Compliance gets a note from the bean-counters that somebody hasn’t been paying their quarterly invoices.
Typically, this serves as a tip-off that the registrar is having problems, so Compliance audits the company to see where else it might be in breach, often discovering other minor or major infractions it can add to the docket.
Epik paid ICANN just shy of $150,000 in its last-reported fiscal year to June 30, 2022. If its current cash-flow problem has caused it to miss an ICANN payment in the three quarters since then, Compliance could be another very powerful creditor knocking at its door.
Another way ICANN could bring out the deaccreditation hammer is if Epik suffers unfavorable court rulings related to financial mismanagement. The RAA specifically allows termination if a court finds a registrar committed “fraud” or “a breach of fiduciary duty”.
The customer lawsuit Epik is currently facing could make such a finding, if it reaches trial and things don’t go Epik’s way.
Perhaps a more immediate concern is that the RAA contains another clause allowing termination if a registrar “is disciplined by the government of its domicile for conduct involving dishonesty or misuse of funds of others”.
I am not a lawyer, but I can see an argument being made that this might have happened already.
As Domain Name Wire reported in February, the Insurance Commissioner of Epik’s home state of Washington recently fined the company $10,000 for selling its DNProtect service as an “insurance” product without the proper licences.
Does this count as being “disciplined by the government of its domicile for conduct involving dishonesty”? Legally, I don’t know.
DNW reports in the same article that the Washington state attorney general has been tipped off about Epik’s escrow service, which is also a regulated industry in which Epik apparently does not have the necessary paperwork to operate.
I’m soothsaying here, of course, but any future disciplinary action from Epik’s local AG could well give ICANN Compliance another deaccreditation trigger to pull.
There are multiple excuses Compliance could find to shitcan Epik over the coming months, but let’s look at the downside for ICANN if it does.
Epik has built itself up in recent years as the go-to “free speech” registrar. It’s welcomed, even courted, multiple registrants that have had their domains banished from other registrars for their sites’ controversial content.
That pretty much always means “far-right” content, of course.
It’s previously been associated with domains for similarly controversial registrants including Andrew Tate, Infowars, 8chan, Gab and The Daily Stormer.
When Monster was replaced by current CEO Brian Royce last September, the company made a big deal about how the new guy and the old guy were aligned on the free speech issue. Royce has subsequently echoed those thoughts.
Given the narrative Epik has created around itself, can you imagine how a certain section of the online public, namely the fringe of the American right-wing, would react if ICANN essentially shut down the “free speech registrar”?
ICANN has for many years faced misinformed criticism that it has the power to take down web sites it does not agree with, that it acts as a gatekeeper for the internet, that it is or risks becoming the internet’s “content police”.
If ICANN were to deaccredit Epik, removing its ability to sell most domain names, it would be incredibly easy to construct a narrative that a bunch of Californian liberals are trying to destroy “free speech” by taking down loads of right-leaning web sites.
It wouldn’t be true, of course, but the notion would only need to be propagated by a clueless Congressperson, a disingenuous podcast host, or a sustained social media campaign, before ICANN’s very raison d’être came under focus by people who don’t particularly care about facts.