ICANN lawyers want to keep their clients secret

IP lawyers in the ICANN community have come out swinging against proposed rules that would require them to come clean about who they work for, rules that are supported by registrars and governments.

A proposed policy that would force lawyers to disclose the identities of their clients when they participate in policy-making would violate their clients’ human rights, according to the Intellectual Property Constituency.

The criticisms came in response to an ICANN public comment period on a draft Community Participant Code of Conduct Concerning Statements of Interest, which opened in October and closed this week.

The draft would close a loophole that allows ICANN policy makers to keep their potential conflicts of interest secret when “professional ethical obligations” prevent them from disclosing this information.

“When disclosure cannot be made, the participant must not participate in ICANN processes on that issue,” the draft states.

The changes are keenly supported by the Registrar Stakeholder Group as a whole and by GoDaddy and Tucows in particular. As far as the registrars are concerned, the main problem with the draft is the somewhat vague enforcement mechanisms.

GoDaddy, for example, said in its comments:

We recognize that there may be situations in which a party is unable to disclose their client(s), and in those rare cases, GoDaddy agrees with ICANN’s conclusion that the participant forfeits the ability to participate in associated processes.

It added, echoing the RrSG as a whole, that more clarity is needed on enforcement, where the buck seems to stop with the chair of the working group where the disclosure infraction is alleged to have taken place, with no escalation.

On the opposing side are the IPC, the Business Constituency, and the International Trademark Association, which all filed comments criticizing the proposed changes. The IPC said:

The often-argued response of having attorneys not participate if they fail to uphold their ethical duty to their clients effectively vitiates the human right of representation by counsel and is not for the public benefit. ICANN has agreed to uphold human rights and therefore counsel cannot be compelled to disclose client identity.

Two of the concerns from lawyers is that the policy could require their clients to divulge trade secrets, such as whether they intend to apply for a new gTLD in the forthcoming application round.

Perhaps anticipating the Governmental Advisory Committee’s expected support for the policy changes, which was no secret, the IPC also raises the specter of the policy being broad enough to apply to the governments themselves: should they all be compelled to reveal the names of all the lobbyists who knock on their doors?

This forcing of transparency of national interest would significantly inhibit GAC members from fulfilling their role. Imagine a GAC member from one country filing an SOI saying that their government was being lobbied by numerous parties to gain favor in the New gTLD Rounds?

The GAC’s response to the public comment period was in fact cautiously supportive of the rule changes, saying:

Prima facie, the proposal referring to Statements of Interests seems to be in the right direction, and to fulfil the expectations expressed by the GAC. At the same time, the GAC looks forward to the reactions from ICANN org to the views expressed during the public comment period

Like the registrars, the GAC is looking for more clarity on enforcement mechanisms.

The public comments will by summarized for publication mid-December and the ICANN board could take action on the proposals next year.

Twitter clone Bluesky has one feature domain people should like

People are abandoning Twitter, and they seem to be largely gravitating towards a very similar clone that has one feature that should appeal to domain owners.

Bluesky, available at bsky.app, was set up by Twitter founder Jack Dorsey five years ago. It’s adding about a million users a day right now, rapidly approaching the 20 million mark today.

Anecdotally, it seems its surge in popularity has come about due to widespread dissatisfaction with Twitter’s miserable direction under Elon Musk’s leadership, particularly due to his role in the recent US presidential election.

So I thought I’d jump on the bandwagon and grab my Bluesky screen name before somebody else could.

But it turns out I didn’t need to. Bluesky has a feature that allows you to use your domain as your username, and it’s verified so nobody else can claim it.

You need to simply add a short TXT record to your DNS settings, which Bluesky can check. If you’re reading this blog, chances are you already know how to do this. It takes about two minutes.

So I’m domainincite.com on the platform and I’ll be posting there alongside Twitter, LinkedIn and Facebook from now on. Feel free to join me.

Nominet names directors after tight election

Ashley La Bolle and Rex Wickham have been named Nominet non-executive directors after an election that saw the top three candidates finish with very close numbers.

Nominet said La Bolle, who works for Tucows, and Wickham, who works for 2020Media, were elected after three rounds of votes and took their seats immediately at the company’s AGM yesterday.

La Bolle was an incumbent, having been originally elected three years ago amid one of the most fractious periods in Nominet’s history.

Wickham replaces Simon Blackler, who won his seat in 2021 as lead of the PublicBenefit.uk campaign, which managed to oust key members of management and board and force Nominet to refocus its business the same year. He did not stand for reelection.

Voting results shared by the company show that Rob Golding of Astutium came a close third in the race, receiving a third-round total of 272,213 votes, compared to Wickham’s 287,794 and La Bolle’s 297,258.

Turnout was 10.6%, the lowest level in the last few years, perhaps indicating a lack of displeasure with Nominet’s current direction.

Four more dot-brands switch back-ends

Four dot-brand gTLDs have recently changed their back-end providers, according to the latest records, three moving away from Verisign.

US insurance company American Family Insurance has moved its .americanfamily and .amfam from Verisign to GoDaddy, as has AARP, a US interest group representing retired people, with .aarp.

Aquarelle.com Group, a French flower delivery company, has meanwhile switched from French ccTLD operator Afnic to London-based CentralNic (which is still Team Internet’s registry brand).

The AmFam moves are notable because while Verisign has for some time been getting out of the dot-brand back-end business, most of its clients have been migrating to Identity Digital.

I count seven gTLDs making the Verisign-GoDaddy switch, compared to 60 going Verisign-Identity Digital over the last couple years. Verisign is now down to a few dozen dot-brands.

The Aquarelle.com move is notable because it’s rare for a dot-brand to use a back-end in a different time zone that predominantly uses a different language, but Team Internet does have a footprint in France and other Francophone countries so it’s perhaps not wholly weird.

Three of the dot-brands are not heavily used — .aarp has three resolving domains that redirect to aarp.org, while .amfam has about 10 names in its zone that do not publicly resolve and .americanfamily has none.

You might infer from the name “Aquarelle.com” that the company is not a big believer in the dot-brand concept, but you’d be surprisingly wrong — .aquarelle has more than 50 domains that resolve to web sites without redirecting to traditional TLDs.

.com still shrinking because of China

Verisign’s .com gTLD shrunk by over a quarter million domains in the first quarter due to softness in China and US registrars’ pesky habit of putting up prices and the pain is likely to continue for the rest of the year, according to Verisign.

There were about 159.4 million .com domains and 13.1 million .net domains at the end of March, down a combined 270,000 from the end of 2023, Verisign said during its first-quarter earnings call on Thursday. Most of the decline appears to be in .com.

Registrations from Chinese registrars, which are about 5% of the total, were down about 360,000 in the period. Not ideal, but a lot less sharp of a drop than the 2.2 million it lost in Q4.

There were 9.5 million new registrations across both zones in the quarter, compared to 10.3 million in the year-ago period.

But CEO Jim Bidzos told analysts that competition from low-priced new gTLDs, some of which sell year one for under a dollar, is likely harming .com’s growth among cost-conscious Chinese registrants.

But he said the company is also seeing “softness” from US registrars, which he said are increasingly focused on increasing average revenue per user and putting up retail prices. This leads to fewer new registrations and renewals.

Bidzos said Verisign expects to introduce new marketing programs in the second half of the year — around the same time as the company’s base .com wholesale fee goes up from $9.59 to $10.26 — to help offset these declines.

The renewal rate for Q1 is expected to be about 74% compared to 75.5% a year ago. Bidzos said the total domain base shrinkage could be worse in Q2 due to the larger number of names coming up for renewal.

The company lowered its guidance for the year to between 0.25% growth and negative 1.75%. In February, it had guided flat, with a 1% swing in either direction.

Verisign’s top and bottom lines continue to grow during the quarter, with revenue up 5.5% at $384 million and net income up from $179 million to $194 million.

ICANN publishes its Woke Manifesto. Here’s my hot take

ICANN’s antics rarely surprise me after close to a quarter-century of coverage, but today it’s published what I can only describe as its “Woke Manifesto” and while reading through it this afternoon I pretty much peeled my uvula raw and ragged, alternating as I did between howls of outrage and uncontrollable fits of incredulous laughter.

On the latest step of its descent into solipsistic pomposity, Org has released its Diversity and Inclusion Toolkit, an interactive web page and associated documents and survey templates designed to help the ICANN community’s various constituencies become more diverse, equitable and inclusive.

“It is designed to empower our community groups in assessing, measuring, and promoting diversity within and across their membership,” ICANN wrote in its introduction, attributed to outgoing policy VP David Olive.

A laudable goal in theory, but in practice what ICANN has come up with is often hilarious, poorly sourced, badly edited, baffling, hypocritical, self-contradictory, and condescending to both the people it wants to include and the people it perceives are already over-included. In parts, sadly, it’s borderline misandrist and maybe a little bit accidentally racist.

The Manifesto is the result of ICANN’s work to implement the recommendations of the Final Report (pdf) of the Cross Community Working Group on Accountability, the most-recent phase of one of ICANN’s interminable navel-gazing exercises.

Recommendation 1.6 of that report states:

ICANN staff should provide support and tools for the SO/AC/Groups to assist them in assessing their diversity in an appropriate manner. ICANN should also identify staff or community resources that can assist SO/ACs or other components of the community with diversity-related activities and strategies.

Or does it? If we believe the new Manifesto, Rec 1.6 actually states:

ICANN staff should provide support and tools for the SO/AC/groups to assist them in assessing their diversity in an appropriate manner. ICANN should also identify staff or community resources that can assist SO/ACs or other components of the community with diversity-related activities and strategies.D&I requires equity to succeed.

The emphasis in that second pull-quote is mine. The lack of a space after the period before the last sentence is ICANN’s error.

It looks like at some point, possibly quite recently, ICANN has sneaked in the reference to “equity”.

If you’re triggered by the DEI (Diversity, Equity, Inclusion) abbreviation, best look away now. The Manifesto contains all the other zeitgeisty buzz-words you probably also hate.

Microaggressions? Check. Privilege? Check. Identity? Check. Intersectionality? Check. Unconscious bias? Check. Psychological safety? Check.

An easily overlooked footnote seems to explain why “equity” has made its way into the document:

In this toolkit we refer to “diversity” and “inclusion,” but “equity” is also a significant concept to understand. Equity refers to fairness and justice, recognizing that we do not all start from the same place and must therefore make adjustments to imbalances; for example promoting the inclusion of people from marginalized/underrepresented populations. It is distinguished from equality, which means providing the same to all.

I take no position on whether this is a good or bad way to tackle inequality of outcome, if it exists, at ICANN, but let’s be honest, this is just another way of describing what has been known as “positive discrimination” or “affirmative action” in other contexts.

But while affirmative action usually refers to issues of race in North America, such as in the ongoing debate about university admission policies, ICANN’s Manifesto is notable for containing no direct references to skin color whatsoever.

ICANN’s “7 key elements of diversity”, which come from the CCWG-Accountability’s report, are: geographical/regional representation, language, gender, age, physical disability, diverse skills, and stakeholder group or constituency.

Let’s look at what the Manifesto says about some of these identity categories. Yes, I’m going there.

“You were so worried you came from Iran”

Possibly the most egregiously condescending and baffling part of the Manifesto is “Ideas for indivdual action” (pdf) (the misspelling of “individual” is in the original, in the title, on the cover page), which offers suggested language to avoid offending people on the basis of gender, age, disability, or geography.

I’ve no idea to whom this document is addressed (I infer it’s able-bodied, Anglophone men), but it seems ICANN thinks it has a problem with people referring to East Asian community members as “Orientals”. Because apparently it’s the 1950s. In the same breath, it suggests that “whitelist” — a term commonly used in the security industry to refer to lists of explicitly permitted domains — is as offensive as “Chinaman”.

It’s worth noting that the word has been used repeatedly by ICANN itself, including quite recently. Under October 2023 terms, you can’t even apply to be an accredited registrar without agreeing to “whitelist” ICANN’s domains.

In a glorious example of accidental misogyny, the document (six years in the making) later says that people should avoid using forms of address such as “Mrs” or “Ms” because: “This language implies that having a disability is not an ordinary aspect of being human”.

The document is all over the place on issues of gender, on some pages directly contradicting ICANN’s own current practices and on others internally contradicting itself.

At one point, it says “there is no need to mention gender, i.e. saying ‘a female lawyer’ diminishes the professional status of that person”. This from the organization that put out this press release celebrating its two “female leaders”, last year.

At another point, it says we should use “Ombudsperson” instead of “Ombudsman”, while ICANN itself recently made the switch to “Ombuds” instead.

The document is also confused about whether biological reality exists. It tells us that we should accept that “that we are all biased by virtue of our biology” and a couple pages later admonishes against terms such as “biologically male” because “These terms imply that gender is a biological and binary fact that can only be changed through surgery — if at all”.

The most jaw-dropping gender-related moment comes when the document attempts to explain the concept of “privilege” and offers some suggestions as to how those who possess it may overcome it to increase the inclusiveness of their communities.

I swear I’m not making this quote up:

If you have male privilege: Hold back, and allow female community members to speak before you do. If they do speak and are not acknowledged, call this out and give credit for their input.

ICANN wants to make “Ladies first” official doctrine? Perhaps it is the 1950s.

While I don’t doubt there are some women in the ICANN community who would whoop with delight at the chance of automatically getting first dibs at the mic, I know there are many others who will find the suggestion that men should give them special treatment, and subsequently pat them on the head for their contributions, deeply offensive.

“I hear you’re a racist now, Father”

It’s not just gender and age where the Manifesto seems to trip over its own desire to virtue signal without thinking through whether what it’s actually saying is internally consistent.

We’re told to avoid “Asking people of a different appearance where they are from” and a few pages later to “Show an interest in other people’s cultures and backgrounds, ask questions with sincere and respectful curiosity”.

How, ICANN, how?! How can I show an interest in this new friend’s culture if I’m not allowed to ask him where he’s from? Am I only supposed to show an interest in his culture if he shares my “appearance”. Can I only talk to people of the same race? Is that what you want, ICANN?!

We’re talking largely about ICANN meetings here, remember. People from over 100 countries on every continent flock into a drab, windowless conference center three times a year. It’s the most natural thing in the world, unwinding at an after-hours cocktail reception, to ask somebody where they’re from.

If, in the hotel bar after eight hours of patiently not interrupting anybody you think you might not fully intersect with, somebody asks you “Where are you from?”, regardless of whether you share common visual characteristics, chances are it’s because your lanyard has flipped over and they’re asking the name of your employer in order to quickly triage business opportunities.

Speaking as somebody who was an immigrant in the US for the best part of a decade, I know it can be irritating after the hundredth time you’re asked your nationality, but I never found it to be, as ICANN would have us believe, an “aggression”, micro or otherwise.

“I’m Disabled!”

The document defines a microaggression as “the everyday messages we send to other people through our language and behavior that cause them to feel devalued, slighted, discouraged or excluded”. We’re told: “What makes microaggressions offensive isn’t the exact words or actions but, instead, the underlying meaning that reveals bias”.

The first example ICANN gives of a microaggression?

A weak handshake with insincere smile.

I find this hugely offensive on a personal level.

My lived experience is as an effete Englishman with a congenitally pathetic handshake, also suffering from the effects of decades of underfunded NHS dentistry and still recovering from an ischemic stroke that rendered my hand-shaking hand about as strong as a sloth’s yawn.

There’s nothing I find more macroaggressive at an ICANN meeting — apart from perhaps a French woman I barely know attempting to kiss me on the cheek — than an American with a $5,000 suit and teeth the color of a Grand Wizard’s hood trying to tear my arm off at the hip when he or she moves to greet me.

But apparently, under ICANN’s rules, the combination of my disability and nationality makes me the bigot. Thanks ICANN, I’m going to feel really psychologically safe at my next meeting.

“What exactly does IT stand for?”

On a professional level, what really boils my piss is this directive, which appears under a section entitled “Use respectful language”:

Avoid jargon: Minimize your use of jargon, shorthand and acronyms that may not be understood by newcomers or people with different experience and skillsets

I totally agree, of course. It’s long since past the point that even some ICANN community veterans often have no clue what ICANN is talking about without a quick google or reference to a glossary.

So why in the Jiminy Cricket is ICANN introducing this package of Orwellian social guidance with the sentence “I am thrilled to announce the launch of ICANN’s Diversity and Inclusion Toolkit, a pivotal resource to support the implementation of the Work Stream 2 (WS2) recommendations.”

Work Stream 2? Work Stream 2 of what? The blog post doesn’t say, and you have to get several clicks deep into the Manifesto itself before you’ll find a reference to, or link to, the CCWG report.

Who is this aimed at? Insiders. Nobody else could possibly understand this stuff.

Germany crosses 10,000 dot-brand domains milestone

The number of domains registered to Germany-based dot-brand registries crossed the 10,000 mark in the last few weeks, thanks to a handful of enthusiastic registrants.

That’s almost half of all the domains currently showing up in dot-brand zone files, which stands at just over 21,000, according to my database.

German companies have been the most-prolific users of dot-brands, with the financial services company Deutsche Vermögensberatung (DVAG) currently accounting for over 7,500 domains.

As well as having several corporate web sites on .dvag domains, DVAG gives out firstname-lastname.dvag domains to its network of financial advisors, with each domain redirecting to a personalized, template-driven digital business card on dvag.de.

Car-maker Audi, part of Volkswagen, is the second-biggest user, with over 1,700 current .audi domains connecting its network of dealerships and many domains for individual car brands. Its dealers also get template-driven brochureware web sites, but there’s no redirect to a different TLD.

Fellow car-maker BMW and retailer Schwarz Gruppe, owner of the Lidl supermarket chain, are among the other dot-brands with hundreds of domains to their name.

GoDaddy to start selling graphic.design domains

In an unusual diversification into third-level domains, GoDaddy Registry seems to be planning to sell names under .graphic.design.

The company filed a request with the Public Suffix List yesterday, asking for the domain to be included on the list, so it will be recognized around the internet as a space where third-level names are registerable.

“GoDaddy Registry will be opening graphic.design to individual registrations, through a global network of authorised Registrars, similar to a standard open gTLD,” the request states.

“This inclusion in the PSL is to ensure the correct operation of the zone as an open TLD, such that providers including website, email and Certificate Authorities recognise the individual ownership of the registered domains within the graphic.design DNS zone,” it says.

The request goes on to say the company expects “5,000 to 10,000+” domains to be registered there.

The PSL is used widely by software such as browsers to determine ownership of domains for security purposes, allowing them to recognize, for example, that example1.graphic.design and example2.graphic.design are two different sites with potentially two different owners.

Registries launching third-level spaces is unusual but not unheard of. It happens much more often in the ccTLD space, where some countries have a baffling number of third-level options. In the gTLD space, the trend if anything is in the opposite direction, with third-levels being de-emphasized in favor of second-levels.

GoDaddy acquired .design from Top Level Design in 2021, a part of its massive expansion in the registry business. It’s not doing badly as new gTLDs go, with about 119,000 domains under management at the last count.

Namecheap sues ICANN over .org price caps

Namecheap has sued ICANN in California, asking a court to force the Org to revisit its decision to lift price caps on .org and .info domain names five years ago.

Registrar CEO Richard Kirkendall announced the suit on Twitter this afternoon:

Today we filed suit against @ICANN. After a previous ruling via a mediation process they have taken little action towards the recommendations of that ruling and so our hand has been forced to take this action. We feel that ICANN is in direct violation of their mandate and…

— Richard Kirkendall (@NamecheapCEO) February 5, 2024

The lawsuit follows an Independent Review Process case that Namecheap partially won in December 2022, where the panel said ICANN should hire an economist to look at whether price caps are a good idea before revisiting its decision to scrap them.

The panel found that the ICANN board of directors had shirked its duties to make the decision itself and had failed to act as transparently as its bylaws mandate.

Namecheap says that over a year after that decision was delivered, ICANN has not implemented the IRP panel’s recommendations, so now it wants the Superior Court in Los Angeles to hand down an injunction forcing ICANN to do so.

Before 2019, .org was limited to 10% price increases every year, but the cap was lifted, along with caps in .info and .biz, when ICANN renewed, standardized and updated the respective registries’ Registry Agreements.

After the decision was made to scrap .org price caps, despite huge public outrage, Namecheap rounded up its lawyers almost immediately.

The caps decision led to the ulimtately unsuccessful attempt by Ethos Capital to acquire Public Interest Registry, which runs .org.

Namecheap’s new lawsuit wants the judge to issue “an order directing ICANN to comply with the recommendations of the IRP Panel”.

That means ICANN’s board would be told to consider approaching PIR and .info registry Identity Digital to talk about reintroducing price caps, to hire the economist, and to modify its procedures to avoid any future transparency missteps.

ICANN accused of power grab over $271 million auction fund

ICANN has acted outside of its powers by ignoring community policy recommendations and leaving its $271 million gTLD auction windfall open to being frittered away on lawyers, according to community members.

The Intellectual Property Constituency of the GNSO has filed a formal Request for Reconsideration over a board resolution passed at ICANN 78 last month in Hamburg, and other constituencies may add their names to it shortly.

The row concerns the huge cash pile ICANN was left sitting on following the auction of 17 new gTLD contracts between 2014 and 2016, which raised $240 million (as of July, around $271 million after investment returns and ICANN helping itself to a portion to fund its operations reserve).

It was decided that the money should be used to fund a grant program for worthy causes, with organizations able to apply for up to $500,000 during discrete rounds, the first of which is due to open next year with a $10 million pot. Around $220 million is believed to be earmarked for the grant program over its lifetime.

But the Cross Community Working Group for Auction Proceeds (CCWG-AP) that came up with the rules of the program was concerned that unsuccessful applicants, or others chagrined by ICANN’s grant allocations, might challenge decisions using ICANN’s accountability mechanisms.

This would cause money earmarked for worthy causes to be spaffed away on lawyers, which the CCWG-AP wanted to avoid, so it recommended that ICANN modify its fundamental bylaws to exclude the grant program from mechanisms such as the Independent Review Process, which usually incurs high six-figure or seven-figure legal fees.

ICANN seemed to accept this recommendation — formally approving it in June last year — until ICANN 78, when the board approved a surprise U-turn on this so-called Recommendation 7.

The board said it was changing its mind because it had found “alternative ways” to achieve the same objective, “including ways that do not require modification to ICANN’s core Bylaws on accountability”. The resolution stated:

As a result, the Board is updating its action on Recommendation 7 to reflect that ICANN org should implement this Recommendation 7 directly through the use of applicant terms and conditions rather than through a change to ICANN’s Fundamental Bylaws.

This left some community members — and at least one ICANN director — scratching their heads. Sure, you might be able to ban grant applicants from using the IRP in the program’s terms and conditions, but that wouldn’t stop third parties such as an applicant’s competitors from filing an IRP and causing legal spaffery.

The board was well aware of these concerns when it passed the resolution last month. Directors pointed out in Hamburg that ICANN is still pursuing the bylaws amendment route, but has removed it as a dependency for the first grant round going ahead.

This left some community members nonplussed — it wasn’t clear whether ICANN planned to go ahead with the program ignoring community recommendations, or not. The reassuring words of directors didn’t seem to tally with the language of the resolution.

So the IPC took the initiative and unironically invoked an accountability mechanism — the RfR — to get ICANN to change its mind again. I gather the request was filed as a precaution within the 30-day filing window due to the lack of clarity on ICANN’s direction.

The RfR states:

the impetus behind the Bylaws change was to prevent anyone from challenging grant decisions, including challenges from parties not in contractual privity with ICANN. The Board’s hasty solution would only prevent contracting grant applicants from challenging decisions; it would not in any way affect challenges by anyone else – including anyone who wished to challenge the award of a grant. The grant program could be tied in knots by disgruntled parties, competitive organizations or anyone else who wished to delay or prevent ICANN from carrying out any decision to grant funds. This is exactly what the CCWG-AP sought to prevent

The IPC says that by bypassing the bylaws amendment process, which involves community consent, the ICANN board is basically giving itself the unilateral right to turn off its bylaws-mandated accountability mechanisms when it sees fit. A power grab.

It wants the Hamburg resolution reversed.

Discussing the RfR a few days before it was filed, other members of the GNSO Council suggested that their constituencies might sign on as fellow complainants if and when it is amended.

RfRs are handled by ICANN’s Board Accountability Mechanisms Committee, which does not currently have a publicly scheduled upcoming meeting.