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ICANN made over $500k in secret lawyer payments over [REDACTED] legal dispute

Kevin Murphy, November 17, 2020, Domain Policy

ICANN has approved a payout of over half a million dollars to outside lawyers for work on a legal dispute it does not want you to know about.

The board of directors a week ago approved the disbursement of a “[Redacted – Privileged & Confidential]” sum to undisclosed parties in relation to “extensive activity in [Redacted – Privileged & Confidential]”.

Under ICANN policy, the fact that board approval was required means that the amount being paid is at least $500,000. The redacted resolution also authorizes additional payments up to $499,999.

ICANN isn’t providing any hints about what the payments concern, other than that it’s a legal dispute of some kind. The resolution states:

When required, ICANN must engage outside legal counsel to help prepare for and defend against all types of disputes that are brought against ICANN. When those disputes become highly contentious they often require significant involvement during a certain time period by outside counsel and that significant amount of time also results in significant fees and related expenses.

The words “related expenses” may be telling. We may not just be talking about lawyers’ fees here.

ICANN also does not state when the expenses were incurred, other than to note that the org’s budget for fiscal 2020, which ended June 30, “contemplated” the need for such payments.

So we’re talking about a legal issue that ICANN was aware of before May 2019, when the FY20 budget was approved, possibly as far back as December 2018, when earlier versions of that budget were published.

Known legal disputes that were active back then and have seen activity in the last few months include the Afilias Independent Review Process complaint about the .web auction and DotConnectAfrica’s court appeal over its .africa loss.

But both of those cases are matters of public record. ICANN even regularly publishes legal documentation on both. They’re not secret.

The only cases I’m aware of that ICANN has actively tried to keep secret involve allegations of sexual discrimination and harassment made against at least one former senior staffer. One such lawsuit was filed late February 2019.

But the hundreds of thousands doled out by ICANN last week could be related to just about anything.

ICANN’s bylaws give the board a broad brush when it comes to redacting information from published resolutions:

any actions relating to personnel or employment matters, legal matters (to the extent the Board determines it is necessary or appropriate to protect the interests of ICANN), matters that ICANN is prohibited by law or contract from disclosing publicly, and other matters that the Board determines, by a three-quarters (3/4) vote of Directors present at the meeting and voting, are not appropriate for public distribution

Usually, when ICANN redacts information, it’s related to personnel matters such as management bonuses.

Whatever it was ICANN just spent your money on, ICANN ain’t saying.

Does ICANN have a race problem?

Kevin Murphy, June 29, 2020, Domain Policy

In the wake of the killing of George Floyd, pretty much every corporation and institution in the US, and many elsewhere, have felt the need to make statements or enact changes in order to show how non-racist they are, and it seems ICANN is now no exception.

The org issued a statement from CEO Göran Marby late last week in which he denounced racism and said ICANN was committed to establishing a set of “guiding principles” to govern “diversity and inclusion”.

I found the statement rather odd. Does ICANN have a racism problem that needs addressing?

I don’t think it does. At least, I’ve never even heard so much as a rumor about such behavior, never mind a confirmed case.

I’ve been scratching my head to think of any examples of ICANN being accused of racism, and the only one I can come up with is a minor controversy 10 years ago when an early draft of the new gTLD Applicant Guidebook banned “terrorism”.

Some Muslim community members complained that the word could be perceived as “racist” and it was eventually removed.

Around the same time, a handful of community members (as well as yours truly) were accused by the head of unsuccessful .africa applicant DotConnectAfrica of being part of a racist conspiracy against the company, but to the best of my recollection we never invited ICANN staff to our meetings.

But that’s basically it.

ICANN already has diversity baked into its power hierarchies. Members of the board of directors and other committees have to be geographically diverse, which will usually lead to racial diversity, for example.

A great many of its senior leaders have been (at least under some definitions) “people of color”. There doesn’t appear to be a glass ceiling.

It’s also got its Expected Standards of Behavior, a system of codified politeness used in community interactions, which explicitly forbids racial discrimination.

The broader community is global, has no ethnic majority, and is self-selecting. Anyone with the means can show up to a public meeting, dial into a remote meeting, or join a working group, regardless of race or origin.

Statistics show that whenever an ICANN meeting is held in Africa or Asia, the largest groupings of participants are African or Asian.

Of course, maybe with such diversity comes problems. There are words that are considered offensive in some parts of the world that are perfectly acceptable in others, for example, but I’ve never heard of any instances of this kind of culture clash.

But is there actual racism going on at ICANN HQ? Marby’s post says:

We will open a facilitated dialogue to support our employees, to ensure that racial bias and discrimination, or bias of any kind, have no place in our workforce. We need to be comfortable having uncomfortable conversations so that we can address the unconscious and conscious ways in which systemic racism is perpetuated. We need to listen more to Black people and people of color to learn about how these issues impact them each and every day. And we need to continue to take meaningful actions to address inequality.

That suggests that either ICANN is aware of some sort of systemic racial bias among its staff, or that it wants to hunt it down and snuff it out before it becomes a bigger issue.

Or they could just be empty words designed to pay lip service to this stuff.

Sorry, you still can’t sue ICANN, two-faced .africa bidder told

Kevin Murphy, September 9, 2019, Domain Policy

Failed .africa gTLD applicant DotConnectAfrica appears to have lost its lawsuit against ICANN.

A California judge has said he will throw out the portions of DCA’s suit that had not already been thrown out two years ago, on the grounds that DCA was talking out of both sides of its mouth.

DCA applied for .africa in 2012 but lost out to rival applicant ZA Central Registry because ZACR had the backing of African governments and DCA did not.

It filed an Independent Review Process complaint against ICANN in 2013 and won in 2015, with the IRP panel finding that ICANN broke its own bylaws by paying undue deference to Governmental Advisory Committee advice.

It also emerged that ICANN had ghost-written letter of government support on behalf of the African Union, which looked very dodgy.

DCA then sued ICANN in 2016 on 11 counts ranging from fraud to breach of contract to negligence.

The Los Angeles Superior Court decided in 2017 that five of those charges were covered by the “covenant not to sue”, a broad waiver that all new gTLD applicants had to sign up to.

But the remaining six, relating to ICANN’s alleged fraud, were allowed to go ahead.

ICANN relied in its defense on a principle called “judicial estoppel”, where a judge is allowed to throw out a plaintiff’s arguments if it can be shown that it had previously relied on diametrically opposed arguments to win an earlier case.

The judge has now found that estoppel applies here, because DCA fought and won the IRP in part by repeatedly claiming that it was not allowed to sue in a proper court.

It had made this argument on at least seven occasions during the IRP, Judge Robert Broadbelt found. He wrote in his August 22 ruling (pdf):

DCA’s successfully taking the first position in the IRP proceeding and gaining significant advantages in that proceeding as a result thereof, and then taking the second position that its totally inconsistent in this lawsuit, presents egregious circumstances that would result in a miscarriage of justice if the court does not apply the doctrine of judicial estoppel to bar DCA from taking the second position in this lawsuit. The court therefore exercises its discretion to find in favor of ICANN, and against DCA, on ICANN’s affirmative defense of judicial estoppel and to bar DCA from bringing or maintaining its claims against ICANN alleged in the [First Amended Complaint] in this lawsuit.

In other words, ICANN’s won.

The case is not yet over, however. DCA still has an opportunity to object to the ruling, and there’s a hearing scheduled for December.

“Just give up!” ICANN tells its most stubborn new gTLD applicant

Kevin Murphy, April 8, 2019, Domain Policy

ICANN has urged the company that wants to run .internet as new gTLD to just give up and go away.

The India-based company, Nameshop, actually applied for .idn — to stand for “internationalized domain name” — back in the 2012 application round.

It failed the Geographic Names Review portion of the application process because IDN is the International Standards Organization’s 3166-1 three-letter code for Indonesia, and those were all banned.

While one might question the logic of applying for a Latin-script string to represent IDNs, overlooking the ISO banned list was not an incredibly stupid move.

Even a company with Google’s brainpower resources overlooked this paragraph of the Applicant Guidebook and applied for three 3166-1 restricted strings: .and, .are and .est.

But rather than withdraw its .idn bid, like Google did with its failed applications, Nameshop decided to ask ICANN to change its applied-for string to .internet.

There was a small amount of precedent for this. ICANN had permitted a few applicants to correct typos in their applied-for strings, enabling DotConnectAfrica for example to correct its nutty application for “.dotafrica” to its intended “.africa”.

But swapping out .idn for .internet was obviously not a simple correction but rather looked a complete upgrade of its addressable market. Nobody else had applied for .internet, and Nameshop was well aware of this, so Nameshop’s bid would have been a shoo-in.

To allow the change would have opened the floodgates for every applicant that found itself in a tricky contention set to completely change their desired strings to something cheaper or more achievable.

But Nameshop principal Sivasubramanian Muthusamy did not take no for an answer. He’s been nagging ICANN to change its mind ever since.

There’s a lengthy, rather slick timeline of his lobbying efforts published on the Nameshop web site.

He filed a Request for Reconsideration back in 2013, which was swiftly rejected by the ICANN board of directors.

In July 2017, he wrote to ICANN to complain that Nameshop’s string change request should be treated the same as any other:

It seems that if ICANN can allow string changes from a relatively undesirable name to a more desireable name based on misspelling, then ICANN should allow a change from a desireable name in three characters(IDN) to longer name in eight characters (Internet) based on confusion with geographical names

Meetings with ICANN staff, the Ombudsman, the Governmental Advisory Committee and others to discuss his predicament several times over the last several years have proved fruitless.

Finally, today ICANN has published a letter (pdf) it sent to Muthusamy on Friday, urging him to ditch his Quixotic quest and get his money back. Christine Willett, VP of gTLD operations, wrote:

Given we are unable to take further action on Nameshop’s application, we encourage you to withdraw the application for a full refund of Nameshop’s application fee.

I doubt this is the first time ICANN has urged Nameshop to take its money and run, but it seems ICANN is now finally sick of talking about the issue.

Willett added that ICANN staff and directors “politely decline” his request for further in-person meetings to discuss the application, and encouraged him to apply for his desired string in the next application round, whenever that may be.

ICANN blocks .islam after government veto

Kevin Murphy, October 8, 2018, Domain Policy

After six years, ICANN has finally killed off the applications for the new gTLDs .islam and .halal, due to objections from several governments.

It has also rejected the application for .persiangulf from the same applicant.

The decisions were made by the ICANN board of directors last Wednesday. The resolutions were published Friday night.

The board said: “it is apparent that the vast majority of the Muslim community (more than 1.6 billion members) object to the applications for .HALAL and .ISLAM.”

This actually means that the Organization of Islamic Cooperation, the 57-nation treaty group with a combined 1.6 billion nominal Muslim citizens, objected to the applications.

Several governments with large Muslim populations — including the UAE, Malaysia, Turkey, India and Iran — had also individually told ICANN on the record that they were not happy.

The view from these governments seemed to be that if there’s going to be a .islam, it should be run under the umbrella of a group such as the OIC, rather than some random tuppenny ha’penny gTLD registry.

In Christianity, the comparable gTLD .catholic is run by an affiliate of the world’s oldest pedophile ring, while .bible is being run as a propaganda tool by a group of sexually repressed, homophobic American evangelicals.

The ICANN board said its decision to reject .islam and .halal was in tune with its “core values” to protect the “public interest”.

The decision was based “on its consideration of and commitment to ICANN’s Mission and core values set forth in the Bylaws, including ensuring that this decision is in the best interest of the Internet community and that it respects the concerns raised by the majority of the community most impacted by the proposed .HALAL and .ISLAM gTLDs”.

It’s been avoiding making this decision since at least December 2013.

But it has now voted that the two applications “should not proceed”. It does not appear to have banned organizations from applying for the strings in subsequent application rounds.

The applicant for .islam and .halal was Turkey-based Asia Green IT System. It applications have been “on-hold” since the GAC issued non-consensus advice against them back in April 2013.

The OIC filed Community Objections against both gTLDs with the International Chamber of Commerce, but failed on both counts.

Having failed to see any progress, in December 2015, AGIT filed an Independent Review Process appeal against its treatment by ICANN, and won.

The November 2017 IRP decision held that the “on-hold” status was a “new policy”, unilaterally put in place by ICANN Org, that unfairly condemned AGIT’s applications to indefinite limbo.

The panel ordered ICANN to make its damn mind up one way or the other and pay about $270,000 in costs.

While rejecting the applications may not seem unreasonable, it’s an important example of a minority group of governments getting an essential veto over a gTLD.

Under the rules of the 2012 application round, consensus GAC advice against an application is enough to kill it stone dead.

But the GAC had merely said (pdf):

The GAC recognizes that Religious terms are sensitive issues. Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal. The GAC members concerned have noted that the applications for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed.

That’s non-consensus advice, which is expected to initiate bilateral engagement with ICANN’s board before a decision is made.

In the case of .persiangulf, also applied for by AGIT and also now rejected, the GAC didn’t even give non-consensus advice.

In fact, in its July 2013 Durban communique (pdf) is explicitly stated it “does not object to them proceeding”.

This appears to have been a not atypical GAC screw-up. The minutes of the Durban meeting, published months later, showed that the Gulf Cooperation Council states had in fact objected — there’s a bit of a dispute in that part of the world about whether it’s the “Persian Gulf” or “Arabian Gulf” — so the GAC would have been within its rights to publish non-consensus advice.

This all came out when the GCC filed its own IRP against ICANN, which it won.

The IRP panel in that case ordered ICANN to outright reject .persiangulf. Two years later, it now has.

While the three gTLDs in question are now going into “Will Not Proceed” status, that may not be the end of the story. One “Will Not Proceed” applicant, DotConnectAfrica, has taken ICANN to court in the US over its .africa application.

After slow launch, .africa looks to add hundreds of resellers

Kevin Murphy, September 1, 2017, Domain Registrars

ZA Central Registry is opening up .africa and its South African city gTLDs to potentially hundreds of new registrars via a new proxy program.

The company today announced that its new registrar AF Proxy Services has received ICANN accreditation, which should open up .africa, .joburg, .capetown and .durban to its existing .za channel.

ZACR is the ccTLD registry for South Africa and as such it already has almost 500 partners accredited to sell .za names. But most of these resellers are not also ICANN accredited, so they cannot sell gTLD domains.

The AF Proxy service is intended to give these existing resellers the ability to sell ZACR’s four gTLDs without having to seek out an ICANN accreditation themselves.

“Effectively, all users of the AF Proxy service become resellers of the Proxy Registrar which is an elegant technical solution aimed at boosting new gTLD domain name registrations,” ZACR CEO Lucky Masilela said in a press release.

While reseller networks are of course a staple of the industry and registries acting as retail registrars is fairly common nowadays, this new ZACR business model is unusual.

According to ZACR’s web site, it has 489 accredited .za registrars active today, with 52 more in testing and a whopping 792 more in the application process.

Depending on uptake of the proxy service, that could bring the number of potential .africa resellers to over 1,300.

And they’re probably needed.

The .africa gTLD went into general availability in July — after five years of expensive legal and quasi-legal challenges from rival applicant DotConnectAfrica — but has so far managed to put just 8,600 names in its zone file.

That’s no doubt disappointing for TLD serving a population of 1.2 billion and which had been expected to see substantial domain investor activity from overseas, particularly China.

Blah blah ICANN blah .africa blah delegated blah blah…

Kevin Murphy, February 15, 2017, Domain Registries

Today blah blah ZA Central Registry blah blah .africa blah delegated blah.

ICANN blah blah root blah. Blah blah ZACR blah nic.africa.

Blah blah five years blah blah contention blah lawsuit blah blah DotConnectAfrica blah. Blah blah Bekele blah IRP blah.

ICANN blah blah Governmental Advisory Committee blah blah blah African Union blah blah blah.

Blah blah Geographic Names Panel blah blah controversy blah blah blah blah lawsuit blah blah blah leg to stand on.

Blah racist blah blah conspiracy blah blah blah… nutty. Blah.

Blah reporting blah damned blah story blah forever blah blah bored blah blah blah blah.

Blah blah blah.

.africa to finally go live after judge denies injunction

Kevin Murphy, February 10, 2017, Domain Policy

A Los Angeles court has rejected a demand for a preliminary injunction preventing ICANN delegating .africa, meaning the new gTLD can go live soon.

Judge Howard Halm ruled February 3, in documents published last night, that the “covenant not to sue” signed by every new gTLD applicant is enforceable and that Africans are being harmed as long as .africa is stuck in legal limbo.

The ruling comes two and a half years after ZA Central Registry, the successful of the two .africa applicants, signed its Registry Agreement with ICANN.

Rival applicant DotConnectAfrica, rejected because it has no African government support, is suing ICANN for fraud, alleging that it failed to follow its own rules and unfairly favored ZACR from the outset.

Unfortunately, the ruling does not address the merits of these claims. It merely says that DCA is unlikely to win its suit due to the covenant it signed.

Halm based his decision on the precedent in Ruby Glen v ICANN, the Donuts lawsuit that seeks to stop ICANN awarding .web to Verisign. The judge in that case ruled last November that Donuts signed away its right to sue.

An earlier judge in the DCA v ICANN case had ruled — based at least in part on a misunderstanding of the facts — that the covenant was unenforceable, but that decision now seems to have been brushed aside.

Halm was not convinced that DCA would suffer irreparable harm if ZACR got given .africa, writing:

The .Africa gTLD can be re-delegated to DCA in the event DCA prevails in this litigation… Further, it appears that any interim harm to DCA can be remedied by monetary damages

He balanced this against the harm of NOT delegating .africa:

The public interest also weighs in favor of denying the injunction because the delay in the delegation of the .Africa gTLD is depriving the people of Africa of having their own unique gTLD.

So what now?

ICANN said in a statement: “In accordance with the terms of its Registry Agreement with ZACR for .AFRICA, ICANN will now follow its normal processes towards delegation.”

As of this morning, ZACR’s .africa bid is officially still marked as “On Hold” by ICANN, though this is likely to change shortly.

Assuming ZACR has already completed pre-delegation testing, delegation itself could be less than a week away.

If DCA’s record is anything to go by, it seems unlikely that this latest setback will be enough to get it to abandon its cause.

Its usual MO whenever it receives an adverse decision or criticism is to double down and start screaming about conspiracies.

While the injunction was denied, the lawsuit itself has not been thrown out, so there’s still plenty of time for more of that.

You can read Halm’s ruling here (pdf).

DCA files for ANOTHER .africa injunction

Kevin Murphy, January 11, 2017, Domain Registries

DotConnectAfrica is continuing its legal attempt to prevent the .africa gTLD from being delegated to a competitor supported by African governments.

The recalcitrant applicant has filed for another temporary restraining order and preliminary injunction that would prevent ICANN handing .africa to the successful applicant, ZA Central Registry, according to ZACR.

DCA’s last application for an injunction was refused by a California judge in December, but last week it renewed its efforts to stymie the long-delayed geo.

ZACR said on its web site yesterday:

On January 4, 2017, DCA filed an ex parte (emergency) temporary restraining order (“TRO”) asking the Court to prevent ICANN from delegating .Africa to ZACR. The Court denied DCA’s ex parte request for a TRO on the grounds that there was no exigency that required an immediate ruling. The Court further clarified that the prior order denying DCA’s preliminary injunction motion was based upon all arguments submitted by ICANN and DCA (thereby rejecting DCA’s contention in its ex parte papers that the ruling did not include ZACR’s arguments). However, the Court agreed to consider DCA’s new arguments as grounds for a new motion for a preliminary injunction. DCA was given until January 6, 2017 to file its motion. ICANN and ZACR shall file opposition papers by January 18, 2017. DCA will then be given an opportunity to file a reply.

The court is scheduled to hear arguments for and against the injunction January 31, ZACR said.

In the meantime, .africa remains in limbo.

.africa could go live after court refuses injunction

Kevin Murphy, January 2, 2017, Domain Policy

DotConnectAfrica’s attempt to have ICANN legally blocked from delegating the .africa gTLD to rival applicant ZACR has been denied.

The ruling by a Los Angeles court, following a December 22 hearing, means ICANN could put .africa in the root, under ZACR’s control, even before the case comes to trial.

A court document (pdf) states:

The plaintiff is seeking to enjoin defendant Internet Corporation for Assigned Names and Numbers (ICANN) from issuing the .Africa generic top level domain (gTLD) until this case has been resolved…

The plaintiff’s motion for the imposition of a Preliminary Injunction is denied, based on the reasoning expressed in the oral and written arguments of defense counsel.

ICANN was just days away from delegating .africa last April when it was hit by a shock preliminary injunction by a California judge who later admitted he hadn’t fully understood the case.

My understanding is that the latest ruling means ICANN may no longer be subject to that injunction, but ICANN was off for the Christmas holidays last week and unable to comment.

“Sanity prevails and dotAfrica is now one (big) step closer to becoming a reality!” ZACR executive director Neil Dundas wrote on Facebook. He declined to comment further.

Even if ICANN no longer has its hands tied legally, it may decide to wait until the trial is over before delegating .africa anyway.

But its lawyers had argued that there was no need for an injunction, saying that .africa could be re-delegated to DCA should ICANN lose at trial.

DCA case centers on its claims that ICANN treated it unfairly, breaking the terms of the Applicant Guidebook, by awarding .africa to ZACR.

ZACR has support from African governments, as required by the Guidebook, whereas DCA does not.

But DCA argues that a long-since revoked support letter from the African Union should still count, based on the well-known principle of jurisprudence the playground “no take-backs”.

The parties are due to return to court January 23 to agree upon dates for the trial.