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Egyptian elected new GAC chair

Kevin Murphy, October 31, 2017, Domain Policy

Manal Ismail, Egypt’s representative to ICANN’s Governmental Advisory Committee, has been elected its new chair.

She will replace outgoing chair Thomas Schneider, a Swiss official, after the current ICANN 60 public meeting in Abu Dhabi wraps up later this week.

Ismail is director of international technical coordination at Egypt’s National Telecom Regulatory Authority, NTRA.

Schneider said he was stepping down from the GAC earlier this year, having received a promotion back home that will limit his availability for ICANN work.

The handover means that both the GAC and the ICANN board of directors will, from this Thursday, be chaired by Egyptians.

The ICANN board will on Thursday formally elect current vice chair Cherine Chalaby as Steve Crocker’s replacement.

Chalaby was born in Egypt, also holds British citizenship, and lives in the United States.

I believe it’s the first time both chair roles have been held by people of the same nationality.

“We own your name” government tells Amazon in explosive slapdown

Kevin Murphy, October 29, 2017, Domain Policy

Amazon suffered a blistering attack from South American governments over its controversial .amazon gTLD applications this weekend.

A Peruvian official today excoriated Amazon’s latest peace offering, telling the tech giant in no uncertain terms that the word “Amazon” is not its property and demanding an apology for the company’s alleged behavior during recent legal proceedings.

“We will be giving you permission to use a certain word, not the other way around,” she said. “We are the owners of the Amazonian region.”

Speaking for almost 10 minutes during a session at the ICANN 60 meeting in Abu Dhabi this afternoon, Peru’s representative to the Governmental Advisory Committee pulled rank and scolded Amazon like a naughty schoolchild.

She claimed that Amazon had been bad-mouthing Peru by saying former GAC reps had “lied to and manipulated” the rest of the GAC in order to get support for its objection. She then demanded an apology from the company for this.

She was speaking in support of the idea that the string “Amazon” belongs to the people of the Amazonas region, which covers as many as eight South American countries, rather than the American company, despite the fact that none of those countries use the English word to describe the region.

Her remarks drew applause from parts of the audience.

Amazon had showed up at the session — described by two GAC reps later as a “lion’s den” — to offer a “strong, agreed-upon compromise that addresses the needs of the governments”.

The proposed deal would see the GAC drop its objections to .amazon in exchange for certain safeguards.

Amazon is promising to reserve geographically and culturally sensitive words at the second level in .amazon.

The domain rainforest.amazon, its associate general counsel Dana Northcott said by way of example, would be never be used by anyone.

Affected governments would get to negotiate a list of such terms before .amazon went live and there’d be an ongoing consultation process for more such terms to be protected in future.

The company has also promised not to object to — and in fact to actively support with hard resources — any future applications for .amazonas or other local-language variants by the people of the region.

But Peru was not impressed, telling the company that not only is the English version of the name of the region not its property but also that it must show more respect to governments.

“No government is going to accept any impositions from you,” she said, before appealing to fellow GAC members that the issue represents a kind of existential threat.

“The core issue here… is our survival as governments in this pseudo-multi-stakeholder space that has been invented,” she said.

“They want us to believe this is a place where we have dignity but that is increasingly obvious that this is not the case,” she said. “We don’t have it. And that is because of companies like yours… Companies that persist in not respecting the governments and the people they represent.”

The Peruvian GAC rep, listed on the GAC web site as María Milagros Castañon Seoane but addressed only as “Peru” during the session, spoke in Spanish; I’ve been quoting the live interpretation provided by ICANN.

Her remarks, in my opinion, were at least partially an attempt to strengthen her side’s negotiating hand after an Independent Review Process panel this July spanked ICANN for giving too much deference to GAC advice.

The IRP panel decided that ICANN had killed the .amazon applications — in breach of its bylaws — due to a GAC objection that appeared on the face of the public record to be based on little more than governmental whim.

The panel essentially highlighted a clash between ICANN’s bylaws commitments to fairness and transparency and the fact that its New gTLD Applicant Guidebook rules gave the GAC a veto over any application for any reason with no obligation to explain itself.

It told ICANN to reopen the applications for consideration and “make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications”.

That was back in July. Earlier today, the ICANN board of directors in response to the IRP passed a resolution calling for the GAC to explain itself before ICANN 61 in March next year, resolving in part:

Resolved (2017.10.29.02), the Board asks the GAC if it has: (i) any information to provide to the Board as it relates to the “merits-based public policy reasons,” regarding the GAC’s advice that the Amazon applications should not proceed; or (ii) any other new or additional information to provide to the Board regarding the GAC’s advice that the Amazon applications should not proceed.

Other governments speaking today expressed doubt about whether the IRP ruling should have any jurisdiction over such GAC advice.

“It is not for any panelist to decided what is public policy, it is for the governments to decide,” Iran’s Kavouss Arasteh said.

During a later session today the GAC, talking among itself, made little progress in deciding how to formally respond to the ICANN board’s resolution.

A session between the GAC and the ICANN board on Tuesday is expected to be the next time the issue raises its increasingly ugly head.

ICANN shifts dates on five public meetings to avoid holidays

Kevin Murphy, October 25, 2017, Domain Policy

ICANN has changed the proposed dates of five out of nine forthcoming public meetings in order to avoid clashes with religious festivals and national holidays.

The meetings affected — ICANNs 70 through 78 — are all scheduled for 2021, 2022 and 2023 and naturally don’t have any venue selected yet, so nobody is going to have to change any travel plans.

The biggest shift will see the usual October meeting in 2022 moved a full month earlier to September due to a clash with the Jewish holiday Sukkot and its subsequent holy days.

Ramadan in 2023 will see the March meeting moved a week earlier.

Midsummer, something celebrated mainly in Sweden and neighboring countries, will see the June meetings in all three years moved back a week.

Interestingly, a clash with Midsummer was highlighted as a selling point of the Helsinki meeting a couple of years ago. ICANN’s latest CEO, a Swede, is no doubt more sensitive to the cultural significance of the holiday.

The changes were all made in response to comments from the At-Large Advisory Committee and the Non-Commercial Stakeholders Group.

The list of changes and rationale can be found here (pdf).

ICANN’s latest meeting, ICANN 60, kicks off in Abu Dhabi this weekend.

Amsterdam refuses to publish Whois records as GDPR row escalates

Kevin Murphy, October 23, 2017, Domain Policy

Two Dutch geo-gTLDs are refusing to provide public access to Whois records in what could be a sign of things to come for the whole industry under new European privacy law.

Both .amsterdam and .frl appear to be automatically applying privacy to registrant data and say they will only provide full Whois access to vetted individuals such as law enforcement officials.

ICANN has evidently slapped a breach notice on both registries, which are now complaining that the Whois provisions in their Registry Agreements are “null and void” under Dutch and European Union law.

FRLregistry and dotAmsterdam, based in the Netherlands, are the registries concerned. They’re basically under the same management and affiliated with the local registrar Mijndomein.

dotAmsterdam operates under the authority of the city government. .frl is an abbreviation of Friesland, a Dutch province.

Both companies’ official registry sites, which are virtually identical, do not offer links to Whois search. Instead, they offer a statement about their Whois privacy policy.

That policy states that Dutch and EU law “forbids that names, addresses, telephone numbers or e-mail addresses of Dutch private persons can be accessed and used freely over the internet by any person or organization”.

It goes on to state that any “private person” that registers a domain will have their private contact information replaced with a “privacy protected” message in Whois.

Legal entities such as companies do not count as “private persons”.

Under the standard ICANN Registry Agreement, all new gTLDs are obliged to provide public Whois access under section 2.5. According to correspondence from the lawyer for both .frl and .amsterdam, published by ICANN, the two registries have been told they are in breach.

It seems the breach notices have not yet escalated to the point at which ICANN publishes them on its web site. At least, they have not been published yet for some reason.

But the registries have lawyered up already, regardless.

A letter from Jetse Sprey of Versteeg Wigman Sprey to ICANN says that the registries are free to ignore section 2.5 of their RAs because it’s not compliant with the Dutch Data Protection Act and, perhaps more significantly, the EU General Data Protection Regulation.

The GDPR is perhaps the most pressing issue for ICANN at the moment.

It’s an EU law due to come into effect in May next year. It has the potential to completely rewrite the rules of Whois access for the entire industry, sidestepping the almost two decades of largely fruitless ICANN community discussions on the topic.

It covers any company that processes private data on EU citizens; breaching it can incur fines of up to €20 million or 4% of revenue, whichever is higher.

One of its key controversies is the idea that citizens should have the right to “consent” to their personal data being processed and that this consent cannot be “bundled” with access to the product or service on offer.

According to Sprey, because the Registry Agreement does not give registrants a way to register a domain without giving their consent to their Whois details being published, it violates the GDPR. Therefore, his clients are allowed to ignore that part of the RA.

These two gTLDs are the first I’m aware of to openly challenge ICANN so directly, but GDPR is a fiercely hot topic in the industry right now.

During a recent webinar, ICANN CEO Goran Marby expressed frustration that GDPR seems to have come about — under the watch of previous CEOs — without any input from the ICANN community, consideration in the EU legislative process of how it would affect Whois, or even any discussion within ICANN’s own Governmental Advisory Committee.

“We are seeing an increasing potential risk that the incoming GDPR regulation will mean a limited WHOIS system,” he said October 4. “We appreciate that for registers and registers, this regulation would impact how you will do your business going forward.”

ICANN has engaged EU legal experts and has reached out to data commissioners in the 28 EU member states for guidance, but Marby pointed out that full clarity on how GDPR affects the domain industry could be years away.

It seems possible there would have to be test cases, which could take five years or more, in affected EU states, he suggested.

ICANN is also engaging with the community in its attempt to figure out what to do about GDPR. One project has seen it attempt to gather Whois use cases from interested parties. Long-running community working groups are also looking at the issue.

But the domain industry has accused ICANN the organization of not doing enough fast enough.

Paul Diaz and Graeme Bunton, chairs of the Registries Stakeholder Group and Registrars Stakeholder Group respectively, have recently escalated the complaints over ICANN’s perceived inaction.

They told Marby in a letter that they need to have a solution in place in the next 60 days in order to give them time to implement it before the May 2018 GDPR deadline.

Complaining that ICANN is moving too slowly, the October 13 letter states:

The simple fact is that the requirements under GDPR and the requirements in our contracts with ICANN to collect, retain, display, and transfer personal data stand in conflict with each other.

GDPR presents a clear and present contractual compliance problem that must be resolved, regardless of whether new policy should be developed or existing policy adjusted. We simply cannot afford to wait any longer to start tackling this problem head-on.

For registries and registrars, the lack of clarity and the risk of breach notices are not the only problem. Many registrars make a bunch of cash out of privacy services; that may no longer be as viable a business if privacy for individuals is baked into the rules.

Other interests, such as the Intellectual Property Constituency (in favor of its own members’ continued access to Whois) and non-commercial users (in favor of a fundamental right to privacy) are also complaining that their voices are not being heard clearly enough.

The GDPR issue is likely to be one of the liveliest sources of discussion at ICANN 60, the public meeting that kicks off in Abu Dhabi this weekend.

UPDATE: This post was updated October 25 to add a sentence clarifying that companies are not “private persons”.

One in three women say they have seen sexism at ICANN

Kevin Murphy, October 12, 2017, Domain Policy

Almost a third of female members of the ICANN community say they have witnessed sexism in the community, according to the results of a recent survey.

Asked “Have you ever experienced or witnessed what you perceive to be sexism or gender bias within the ICANN community?”, 30% of women respondents said “Yes”.

Only 17% of men answered in the affirmative. Overall, 75% of respondents said they had not seen such biases in action.

The broad survey into gender balance at ICANN was carried out over a month in June and July with a web-based tool and got 584 responses.

Participants were self-selecting, and there were slightly more female respondents than male (going against the grain of usual participation data), so the results should probably not be considered completely scientific.

The survey did not offer its own definition of sexism, so respondents were able to use their own judgement.

Of those who said they’d seen sexism in the community, most said they’d seen it at ICANN’s regular public meetings. Over a third said they’d witnessed it on mailing lists.

The older the participant, the more likely it was that they had seen behavior they considered sexist.

ICANN suggests that this could be because behaviors have changed as ICANN has matured, or that younger people have different definitions of sexism than their older peers.

Of those who said they had witnessed sexism, only four people chose to report it through ICANN channels such as the Ombudsman. Three of those people were men.

Almost half said they “chose” not to report the behavior, while 41% said they were unsure how to go about reporting it.

Some people who chose to add additional color to their responses said that they had only heard about the reportable incident second-hand.

The survey also found that almost 60% of respondents believe that there are barriers to participating in the ICANN community.

Those people were given the opportunity to rank factors that could act as barriers. Cost came out in a strong lead, but gender was found to be just as much a barrier as language.

That may be not so much a critique of the community itself, but rather of the backwards attitudes to women in some of the countries in which ICANN hosts its meetings.

Only 9% of women respondents said they have personally experienced a gender-related barrier to participation. Cost, lack of time, knowledge and geography all came out ahead.

When it came to solutions, the survey found that almost three quarters of respondents supported voluntary targets to promote gender balance in the community.

However, fewer than half of respondents — still a rather high 41% — said there should be “mandatory” quotas of women.

Unsurprisingly, support for affirmative action along mandatory lines was much higher among women than men, and much higher among the younger crowd than the old-timers.

The full report and a rather pretty infographic can be downloaded in the UN language of your choosing from here.

Election season at ICANN

Kevin Murphy, October 4, 2017, Domain Policy

Two significant votes are coming up soon in the ICANN community, with the GNSO Council looking for a new chair and the ccNSO ready to select a new appointee for the ICANN board of directors.

The ccNSO election will see an actual contest for what is believed to be the first time, with at least two candidates fighting it out.

The GNSO vote is rather less exciting, with only one candidate running unopposed.

It seems Heather Forrest, an intellectual property lawyer, occasional new gTLD consultant, and professor at the University of Tasmania, will replace GoDaddy VP of policy James Bladel as Council chair a month from now.

Forrest, currently a vice-chair, was nominated by the Non-Contracted Parties House.

The Contracted Parties House (registries and registrars), evidently fine with Forrest taking over, decided not to field a candidate, so the November 1 vote will be a formality.

In the ccNSO world, the country-codes are electing somebody to take over from Mike Silber on the ICANN board, a rather more powerful position, when his term ends a year from now.

Nominations don’t close until a week from now, but so far there are two candidates: Nigel Roberts and Pierre Ouedraogo.

Roberts, nominated for the job by Puerto Rico, runs a collection of ccTLDs for the British Channel Islands.

Ouedraogo is from Burkina Faso but does not work for its ccTLD. He is a director of the Francophone Institute for Information and New Technologies. He was nominated by Kenya.

Both men are long-time participants in ICANN and the ccNSO.

Roberts, who currently sits on the ccNSO Council, tells me he believes it’s the first time there’s been a contested election for a ccNSO-appointed ICANN board seat since the current system of elections started in 2003.

Silber has been in the job for eight years and is term-limited so cannot stand again. The other ccNSO appointee, Chris Disspain, will occupy the other seat for another two years.

Chalaby named next ICANN chair

Kevin Murphy, September 26, 2017, Domain Policy

Cherine Chalaby is to be the next chair of ICANN.

In a case of burying the lede extreme even by ICANN standards, current chair Steve Crocker announced the news in the 11th paragraph of a blog post entitled “Chairman’s Blog: The Montevideo Workshop Wrap-Up” this evening.

Crocker wrote: “the Board had an opportunity to participate in the discussion of the Board’s future leadership, and have indicated unanimous support for the future election of Cherine Chalaby as the next Chair of the ICANN Board.”

No formal election has happened yet, but the board decided to come to a consensus on which way they will vote anyway.

Chris Disspain has been selected future vice-chair using the same informal process, Crocker wrote.

The actual raising of hands will take place during the board’s Annual General Meeting in Abu Dhabi at ICANN 60 in early November.

Chalaby was born in Egypt, also holds British citizenship, and lives in ICANN’s home town of Los Angeles.

He’s the first ICANN chair to come from the financial services world, having served a career at Accenture before joining Rasmala Investments.

He’s been a member of the ICANN board since the Nominating Committee selected him in December 2010 and was elected vice-chair a few years back.

His stint as chair will not be long. I believe he’s term-limited and will have to step aside at the end of 2019.

Crocker, an early internet pioneer, has been chair since 2011. No doubt ICANN is planning a big send-off for him at ICANN 60.

More delay for Amazon as ICANN punts rejected gTLD

Kevin Murphy, September 26, 2017, Domain Policy

Amazon is going to have to wait a bit longer to discover whether its 2012 application for the gTLD .amazon will remain rejected.

ICANN’s board of directors at the weekend discussed whether to revive the application in light of the recent Independent Review Process panel ruling that the bid had been kicked out for no good reason.

Instead of making a firm decision, or punting it to the Government Advisory Committee (as I had predicted), the board instead referred the matter to a subcommittee for further thought.

The newly constituted Board Accountability Mechanisms Committee, which has taken over key functions of the Board Governance Committee, has been asked to:

review and consider the Panel’s recommendation that the Board “promptly re-evaluate Amazon’s applications” and “make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications,” and to provide options for the Board to consider in addressing the Panel’s recommendation.

The notion of a “prompt” resolution appears to be subjective, but Amazon might not have much longer to wait for a firmer decision.

While the BAMC’s charter requires it to have meetings at least quarterly, if it follows the practice of its predecessor they will be far more frequent.

It’s possible Amazon could get an answer by the time of the public meeting in Abu Dhabi at the end of next month.

ICANN’s board did also resolve to immediately pay Amazon the $163,045.51 in fees the IRP panel said was owed.

The .amazon gTLD application, along with its Chinese and Japanese versions, was rejected by ICANN a few years ago purely on the basis of consensus GAC advice, led by the geographic name collisions concerns of Peru and Brazil.

However, the IRP panel found that the GAC advice appeared to based on not a great deal more than whim, and that the ICANN board should have at least checked whether there was a sound rationale to reject the bids before doing so.

Will ICANN punt on .amazon again?

Kevin Murphy, September 15, 2017, Domain Policy

Amazon is piling pressure onto ICANN to finally approve its five-year-old gTLD applications for .amazon, but it seems to me the e-commerce giant will have a while to wait yet.

The company sent a letter to ICANN leadership this week calling on it to act quickly on the July ruling of an Independent Review Process panel that found ICANN had breached its own bylaws when it rejected the .amazon and and Chinese and Japanese transliterations.

Amazon’s letter said:

Such action is necessary because there is no sovereign right under international or national law to the name “Amazon,” because there are no well-founded and substantiated public policy reasons to block our Applications, because we are committed to using the TLDs in a respectful manner, and because the Board should respect the IRP accountability mechanism.

ICANN had denied the three applications based on nothing more than the consensus advice of its Governmental Advisory Committee, which had been swayed by the arguments of primarily Brazil and Peru that there were public policy reasons to keep the gTLD available for possible future use by its own peoples.

The string “Amazon”, among its many uses, is of course the name of a river and a rain forest that covers much of the South American continent.

But the IRP panel decided that the ICANN board should have at least required the GAC to explain its public policy arguments, rather than just accepting its advice as a mandate from on-high.

Global Domains Division chief Akram Atallah had testified before the panel that consensus GAC advice sets a bar “too high for the Board to say no.”

But the governmental objections “do not appear to be based on well-founded public policy concerns that justify the denial of the applications” the IRP panelists wrote.

The panel, in a 2-to-1 ruling, instructed ICANN to reopen Amazon’s applications.

Since the July ruling, ICANN’s board has not discussed how to proceed, but it seems likely that the matter will come up at its Montevideo, Uruguay retreat later this month.

No agenda for this meeting has yet been published, but there will be an unprecedented public webcast of the full formal board meeting, September 23.

The Amazon letter specifically asks the ICANN board of directors to not refer the .amazon matter back to the GAC for further advice, but I think that’s probably the most likely outcome.

I say this largely because while ICANN’s bylaws specifically allow it to reject GAC advice, it has cravenly avoided such a confrontation for most of its history.

It has on occasion even willfully misinterpreted GAC advice in order to appear that it has accepted it when it has not.

The GAC, compliantly, regularly provides pieces of advice that its leaders have acknowledged are deliberately vague and open to interpretation (for a reason best known to the politicians themselves).

It seems to me the most likely next step in the .amazon case is for the board to ask the GAC to reaffirm or reconsider its objection, giving the committee the chance to save face — and avoid a lengthy mediation process — by providing the board with something less than a consensus objection.

If ICANN were to do this, my feeling is that the GAC at large would probably be minded to stick to its guns.

But it only takes one government to voice opposition to advice for it to lose its “consensus” status, making it politically much easier for ICANN to ignore.

Hypothetically, the US government could return to its somewhat protectionist pre-2014 position of blocking consensus on .amazon, but that might risk fanning the flames of anti-US sentiment.

While the US no longer has its unique role in overseeing ICANN’s IANA function, it still acts as the jurisdictional overlord for the legal organization, which some other governments still hate.

A less confrontational approach might be to abstain and to allow friendly third-party governments to roadblock consensus, perhaps by emphasizing the importance of ICANN being seen to accountable in the post-transition world.

Anyway, this is just my gut premonition on how this could play out, based on the track records of ICANN and the GAC.

If ICANN can be relied on for anything, it’s to never make a decision on something today if it can be put off until tomorrow.

Deutsch and Doria to join ICANN board

Kevin Murphy, September 4, 2017, Domain Policy

Veteran ICANN community members Avri Doria and Sarah Deutsch are to join ICANN’s board of directors in November.

Both have been selected by ICANN’s Nominating Committee to serve three-year terms starting at the end of the public meeting in Abu Dhabi, which wraps up November 3.

They replace current chair Steve Crocker, who is leaving after his maximum three terms on the board, and Asha Hemrajani, who is leaving after one term. Both take seats reserved for North Americans.

Doria, an independent consultant, is a 12-year member of the community and tireless working group volunteer, most closely associated with the Non-Commercial Users Constituency. Her clients include Public Interest Registry.

Deutsch is an intellectual property attorney perhaps best known as a 23-year employee of Verizon. She currently works at Mayer Brown in Washington DC.

Both new directors have been knocking about ICANN for ages in various leadership positions.

This contrasts with previous years, in which NomCom has gone outside of the community for board expertise.

NomCom also selected new members of the ccNSO, GNSO and ALAC, listed here.