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Kirikos lawyers up after ICANN etiquette fight

Kevin Murphy, October 25, 2018, 16:42:04 (UTC), Domain Policy

Domain investor George Kirikos has hired lawyers to send nastygrams to ICANN after a fight over the rules of etiquette on a working group mailing list.

Kirikos claims there’s a “campaign of intimidation” against him by fellow volunteers who do not agree with his opinions and forthright tone, but that he “has not done anything wrong”.

In response, ICANN CEO Goran Marby this evening revealed that he has assigned his general counsel and new deputy, John Jeffrey, to the case.

Even by ICANN standards, it’s a textbook case of a) manufacturing mountains out of molehills, and b) how it can become almost impossible to communicate like sensible human beings when everyone’s tangled in red tape.

The dispute started back in May, when Kirikos got into a fight with IP lawyer Greg Shatan on the mailing list of the Rights Protection Mechanisms working group.

Both men are volunteers on the group, which seeks to refine ICANN policy protecting trademark owners in gTLDs.

The argument was about the content of a World Intellectual Property Organization web page listing instances of UDRP cases being challenged in court.

Kirikos took a strident tone, to which Shatan took exception.

Shatan then reported Kirikos to the working group’s co-chairs, claiming a breach of the Expected Standards of Behavior — the informal code of conduct designed to prevent every ICANN discussion turning into a flame war and/or bare-knuckle alley fight.

Under GNSO PDP rules, working group volunteers have to agree to abide by the ESB. Group chairs have the ability to kick participants who repeatedly offend.

At this point, the sensible thing to do would have been for Shatan and Kirikos to hug it out and move on.

But this is ICANN.

What actually happened was a pointless procedural back-and-forth between Kirikos, Shatan, and working group chairs Phil Corwin of Verisign and Brian Beckham of WIPO, which resulted in Kirikos hiring two lawyers — Andrew Bernstein of Torys and regular ICANN participant Robin Gross of IP Justice.

It’s believed to be the first time a WG participant has hired counsel over a mailing list argument.

Far too boring to recount here, Corwin’s timeline of events can be found from page 24 of this transcript (pdf) of remarks delivered here in Barcelona during ICANN 63, while the Bernstein/Kirikos timeline can be found here (pdf).

The rub of it is that Kirikos reckons both Corwin and Beckham are biased against him — Beckham because Kirikos voted against his chairship, Corwin because of a similar dispute in a related working group earlier this year — and that the ESB is unenforceable anyway.

According to Bernstein: “Mr. Kirikos has strong concerns that whatever process ICANN purports to operate with respect to Mr. Shatan’s complaint, it will not be fairly or neutrally adjudicated.”

He added that Kirikos had said that “due to the precise language of Section 3.4 of the Working Group Guidelines, Mr. Shatan lacked a basis to initiate any complaint”.

That language allows complaints to be filed if the ESB is “abused”. According to Corwin’s account, Kirikos — well-known as a detail-oriented ICANN critic — reckons the correct term should be “violated”, which rendered the ESB “null and void and unenforceable” in this instance.

Bernstein has since added that the ICANN board of directors never intended the ESB to be anything but voluntary.

The sum of this appears to be that the dispute has had a chilling effect on the RPM working group’s ability to get anything done, consuming much of its co-chairs’ time.

Kirikos lawyering up seems to have compounded this effect.

Now, as ICANN 63 drew to a close this evening, CEO Marby said in a brief prepared statement that the WG’s work has “more or less stalled for the last several months” and that he’s assigned general counsel John Jeffrey to “look into the issues surrounding this matter”.

ICANN “takes the issue very seriously”, he said.

As well it might. The Kirikos/Shatan incident may have been blown waaaaay out of proportion, but at its core is a serious question about civil discourse in ICANN policy-making.

Personally, I hold out hope it’s not too late for everyone to hug it out and move on.

But this is ICANN.

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Comments (1)

  1. ICANN- the colosseum for lawyers.

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