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ICANN lawyers slam “fire him” story “blogger”

Kevin Murphy, August 15, 2016, Domain Policy

ICANN lawyers have launched an extraordinary attack on a “blogger” who recently wrote an article headlined “ICANN’s general counsel should lose his job over this”.

Early Friday, ICANN’s board of directors issued its response to the recent Independent Review Process case in which new gTLD applicant Dot Registry managed to show that the board had breached its transparency and accountability bylaws.

The board resolution did not say what is going to happen to Dot Registry’s four new gTLD applications, due to lack of guidance from the IRP panel.

But it did contain a surprising retaliation against Chris Williams, a reporter for online news site The Register, referring to “factual inaccuracies that have been reported in online blogged reports”.

(Before going any further, some disclosure: I freelanced for The Register for several months about five years ago, when Williams was the copy editor I sometimes had to work with. I also worked directly under its current group editor for about five years at a different publication in the early-mid 2000s.)

In the rationale accompanying its resolution last week, the board said:

the Board also notes that there have been online blogged reports about what the [IRP] Final Declaration actually says, yet many of the items reported on have been factual inaccuracies

I immediately grew worried that the resolution was having a pop at this site. But it actually refers to The Register, a news site with millions of readers that, despite its tabloid style, is not usually described as a “blog”.

The board ordered the simultaneous release of their staff-prepared briefing notes (pdf) for the meeting at which the resolution was passed, which contain an 800-word rebuttal of Williams’ August 3 article “Simply not credible: The extraordinary verdict against the body that hopes to run the internet”.

The article covers the Dot Registry IRP decision in a tone that is harshly critical of ICANN.

It is particularly critical of ICANN’s legal team and specifically general counsel John Jeffrey and notes that he makes a tonne of cash due to his regular, generous pay rises.

I compared each point in the rebuttal to the original article and I think ICANN is generally on fairly safe ground in some of what it says are inaccuracies.

In other cases, the rebuttal instead takes issue with the opinion of a third party quoted in the piece, or with a different, but in my view fair, characterization of the IRP declaration.

It seems the Reg article did incorrectly conflate “ICANN staff” and the “ICANN legal team” in at least one instance, as the ICANN rebuttal claims.

It also does in fact quote sections of “the [IRP] Panel’s recitation of Dot Registry’s claims as if they are the Panel’s own finding” as the rebuttal says it does.

But the actual findings of the panel were arguably much harsher than the text the Reg quoted.

So why is the ICANN board of directors passing a resolution addressing the veracity of a news report rather than the real concerns raised by the IRP declaration?

Column yards of horseshit are written about ICANN on a daily basis — I’m probably responsible for an inch or two myself — so why has ICANN zeroed in on this particular piece?

Could it be because Williams’ follow-up piece, August 4, leads with Dot Registry CEO Shaul Jolles calling for the head of Jeffrey? Jolles is quoted as saying:

ICANN’s general counsel should lose his job for this. The advice that he gives, everything was processed through him. It’s shocking.

There’s a rich irony at work here.

The main takeaway from the IRP’s declaration was that the ICANN board sometimes rubber-stamps resolutions drafted by ICANN staff without doing its due diligence.

The Reg then reported that fact.

In response, ICANN staff drafted a resolution designed to shoot the messenger, deflecting attention from the IRP’s findings, which the board then approved without amendment.

If somebody over at ICANN is chagrined about inaccurate reporting, I can’t help but feel that the best way to deal with that would be to request a correction or publish a rebuttal in the form of a blog post or some other kind of statement.

Using the very method under scrutiny — staff drafts, board approves — to issue a rebuttal simply serves to highlight the failings outlined by the IRP panel.

Compounding this, the only reason we’re able to see the full rebuttal today is that the board approved a (staff-drafted) resolution authorizing the concurrent publishing of staff briefing materials.

Usually, briefing materials are published alongside formal minutes when they are approved many weeks later.

If the ICANN board is able to publish briefing materials just a couple of days after passing its resolutions, why on Earth does it not do so as a matter of course?

Did any member of the ICANN board raise her or his hand to ask why these materials had to be published with such haste?

Can ICANN only be transparent in a timely fashion when its lawyers have been criticized in the press?

Next new gTLD round could start sooner than expected

Kevin Murphy, August 11, 2016, Domain Policy

The ICANN board of directors is wondering whether the next new gTLD application round should kick off sooner than expected.

Chair Steve Crocker reached out to the Generic Names Supporting Organization this week to ask whether the next round could start before all GNSO policy work has been completed.

Or, he asked, are there any “critical issues” that need to be resolved before ICANN starts accepting more applications.

Akram Atallah, head of ICANN’s Global Domains Division, said in May that 2020 is the earliest the next round could feasibly begin, but Crocker’s letter this week (pdf) suggests that that date could be brought forward.

Crocker asked “whether a future application process could proceed while policy work continues”.

There are a number of reviews that ICANN has committed to carry about before the next round starts.

There’s a consumer choice, competition and trust survey to be completed, for example, and a review of trademark protection mechanisms.

Atallah said in may that these would likely be complete by the end of 2017.

But the GNSO is also conducting policy work designed to highlight flaws and inefficiencies in the current 2012 and recommend changes and improvements.

It’s this so-called GNSO Policy Development Process (PDP) Working Group on New gTLD Subsequent Procedures (or NewgTLD-WG) that Crocker is interested in. He wrote:

assuming all other review activities are completed, it would be helpful to understand whether the GNSO believes that the entirety of the current Subsequent Procedures PDP must be completed prior to advancing a new application process under the current policy recommendations. The Board is cognizant that it may be difficult to provide a firm answer at this stage of the process as the reviews are still underway and the PDP is in its initial stages of work, but if any consideration has been given in relation to whether a future application process could proceed while policy work continues and be iteratively applied to the process for allocating new gTLDs, or that a set of critical issues could be identified to be addressed prior to a new application process, the Board would welcome that input.

The current plan for the NewgTLD-WG is to wrap up two years from now, in the third quarter of 2018 (though this may be optimistic).

Members of the group seem to think that we’re looking at a post-2020 next round with 10,000 to 15,000 applications.

It’s difficult to imagine a second round (or fourth, if you’re a pedant) beginning a whole lot earlier than 2020, given the snail’s pace ICANN and its community moves at.

The WG was chartered over half a year ago and the conversations going on are still at a depressingly high level.

Perhaps Crocker’s letter is an early indication that board will not be the significant drag factor on the process.

Centuries-old companies both fail community gTLD test

Kevin Murphy, August 11, 2016, Domain Policy

Two companies called Merck have separately failed ICANN Community Priority Evaluations, meaning the new gTLD .merck could be the first dot-brand to head to ICANN auction.

Merck KGaA applied for .merck for the Merck Group, a German chemicals company founded — staggeringly — in 1668, the same year Newton built the world’s first reflecting telescope.

Merck Registry Holdings Inc applied for the same string on behalf of Merck & Co, which was originally the US subsidiary of the German outfit. The US firm was seized by the US government and subsequently became independent during World War I.

Despite the substantial pedigrees of these multi-billion dollar businesses, neither were able to muster up the required 14/16 points to be considered a “Community” under ICANN CPE standards.

The German firm scored 11 points, the American 9.

The main failing in both evaluations, which were conducted by the Economist Intelligence Unit, was the existence of the other.

Both applicants defined their communities as their own companies and lost points because “.merck” did not uniquely identify all legitimate users of the string.

Both panels marked the applications down for “over-reaching substantially beyond the community” by not including the rival company in its community definition.

The US company also lost a couple of points for failing to come up with a list of registration restrictions.

As neither company has passed CPE, the next step of the ICANN process would have them attempt to resolve the contention set privately. Failing that, they would go to an ICANN last-resort auction.

Another possibility, an increasingly favored choice among CPE losers, would be an interminable series of ICANN process appeals and lawsuits.

IRP panel crucifies ICANN for lack of transparency

Kevin Murphy, August 3, 2016, Domain Policy

ICANN has lost another Independent Review Process decision, with the panel stating some potentially alarming opinions about how much power ICANN staff has over its board and “independent” third-party contractors.

This time, the successful IRP complainant was Dot Registry LLC, the Kansas company that applied for the gTLDs .llc, .llp, and .inc as a “Community” applicant.

The company lost its Community Priority Evaluations back in 2014, scoring a miserable 5 of the possible 16 points, missing the 14-point winning line by miles.

The IRP panel has now found — by a two-to-one panelist majority — that these CPE decisions had extensive input by ICANN staff, despite the fact that they’re supposedly prepared by an independent third-party, the Economist Intelligence Unit.

It also found that the ICANN Board Governance Committee rejected Dot Registry’s subsequent Request for Reconsideration appeals without doing its due diligence.

The IRP panel said in essence that the BGC merely rubber-stamped RfR decisions prepared by legal staff:

apart from pro forma corporate minutes of the BGC meeting, no evidence at all exists to support a conclusion that the BGC did more than just accept without critical review the recommendations and draft decisions of ICANN staff.

ICANN had of course denied this interpretation of events, but refused to provide the IRP panel with any of the information the BGC had supposedly used in its decision-making, citing legal privilege.

The panel also had questions related to the relationship between the EIU and ICANN staff, pointing to extensive margin notes left on the draft CPE decisions by ICANN staff.

Remarkably, the EIU appears to have incorporated ICANN suggested text into its decisions, even when the facts may not have supported the text.

For example, the final CPE decision on .inc contained the sentence:

Research showed that firms are typically organized around specific industries, locales, and other criteria not related to the entities structure as an LLC

The panel concluded that this text had originated in ICANN’s margin notes:

Possibly something like… “based on our research we could not find any widespread evidence of LLCs from different sectors acting as a community”.

According to the IRP decision, there was no mention of any pertinent “research” in the record prior to ICANN’s note. It’s possible no such research existed.

It seems the ICANN legal team helps redraft supposedly independent CPE decisions to make them less likely to be thrown out on appeal, then drafts the very decisions that the compliant BGC later uses to throw out those eventual appeals.

The IRP panel by majority therefore found a lack of due diligence and transparency at the BGC, which means the ICANN board failed to act in accordance with its bylaws and articles of incorporation.

One of the three panelists dissented from the the majority view, appending a lengthy opinion to the majority declaration.

The IRP panel went beyond its mandate by improperly extending ICANN’s bylaws commitments beyond its board of directors, he wrote, calling the declaration “a thinly veiled rebuke of actions taken by the EIU and ICANN staff”

Just because ICANN submitted no evidence that the BGC acted independently rather than merely rubber-stamping staff decisions, that does not mean the BGC did not act independently, he wrote.

The dissenting view may carry some weight, given that the majority declaration does not give ICANN any guidance whatsoever on how it should proceed.

Dot Registry has specifically not asked for a rerun of the CPEs, and the panel didn’t give it one. Instead, it had asked the panel to simply declare that its applications should have passed CPE the first time around.

That bold demand was, naturally, declined.

But the panel offers no redress in its place either. ICANN has simply been told that the BGC’s decisions on Dot Registry’s RfRs broke the bylaws. What ICANN does with that information seems to be up to ICANN.

These gTLDs are almost certainly still heading to auction.

The documents for this IRP case can be found here.

Ombudsman trashes ICANN’s rejection of .gay “community”

Kevin Murphy, August 1, 2016, Domain Policy

ICANN’s outgoing Ombudsman fired a parting shot at his former employer last week with a scathing analysis of its rejection of .gay as a community gTLD.

ICANN should reject the decisions of two independent Economist Intelligence Unit panels, which found that Dotgay LLC’s application for .gay did not meet the strict definition of “community” under ICANN rules, LaHatte wrote.

“This is the time to recognise that even if the EIU evaluation did not achieve the appropriate number of points, that the community is real, does need protection and should be supported,” he wrote.

His recommendation appears on his personal blog, dated July 27, the same day his contract with ICANN expired. It has not appeared on the official ICANN Ombudsman blog.

The EIU is responsible for conducting Community Priority Evaluations for applicants who claim to be representing communities.

Its decisions have been unpredictable and to a degree inconsistent, but both times its panels looked at Dotgay’s .gay, they scored the application lower than the 14 out of 16 points required to pass the CPE.

Winning a CPE generally means you get the gTLD in question. Losing means you have to go to auction against competing applicants.

In the case of .gay, the other applicants are Top Level Design, Minds + Machines and Rightside.

Dotgay failed both times because its stated community — which includes straight people — does not match the string “gay”.

Nobody’s ever said that there’s no such thing as a gay community, they’ve just said there’s no such thing as a gay Community (big C) as defined by Dotgay LLC.

LaHatte’s recommendation does not delve into the nitty-gritty of the scoring process, but seems to criticize the system — and the flawed Request for Reconsideration system Dotgay has thrice unsuccessfully invoked — as “inadequate”. He wrote:

The role of the ombudsman is to deal with issues of fairness, and this encompasses issues such as respect for diversity and support for all parts of our community. Sometimes the mechanisms which we have put together to resolve challenges are simply inadequate…

But the issue that I want to emphasise in this recommendation is that it has always been open to ICANN to reject an EIU recommendation, especially when public interest considerations are involved. What is needed is to take a bold approach and demonstrate to the ICANN community, but also much more widely, to the world of Internet users, that ICANN has a commitment to principles of international law (see Article IV of the Bylaws), including human rights, fairness, and transparency.

The board will be very aware of the human rights initiatives undertaken in the light of the IANA transition and the careful evaluation of the accountability processes. But sometimes it is necessary to take a view which evaluates whether the decision taken corresponds with the bylaws and articles of incorporation. That view should be that ICANN supports the gay community and recognises that there is a community which requires protection and recognition, which has been marginalized, threatened and attacked, and which should be considered a genuine community notwithstanding the EIU recommendation.

He’s basically calling on ICANN’s board to cast aside the rules and previous practice in this particular instance and instead make a political statement, in my reading of the recommendation.

I don’t think ICANN will do that.

On a couple of occasions when Dotgay has suffered an ICANN-induced setback in the past, ICANN has put out statements reminding everyone that there will be a .gay, they only question is who runs it.

Because Dotgay filed a community application, it would be obliged to make .gay a restricted space. Its application talks about registrants having to be approved as eligible before they register.

But it also would have the strictest measures in place to address homophobia and harassment — something the other applicants may, but have not formally committed, to implement.