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Judge blocks seizure of Iran’s ccTLD

Kevin Murphy, November 13, 2014, Domain Policy

ICANN has won a court battle, and avoided a major political incident, over an attempt by terrorism victims to seize ccTLDs belonging to Iran, Korea and Syria.

A District of Columbia judge ruled this week that while ccTLDs may be a form of “property” under the law, they’re not “attachable” property.

Attachment is a legal concept used when creditors attempt to seize assets belonging to debtors.

The ruling overturns a request by a group of terrorism survivors, led by attorney Nitsana Darshan-Leitner, to have .ir, .sy, .kp, سور, and ايران. transferred to them in lieu of payment of previous court rulings.

Darshan-Leitner has previously secured US court judgments amounting to hundreds of millions of dollars against the three nations. Because the nations have not paid these penalties, she’s been using the courts to seize state-owned assets in the US instead.

But US District Judge Royce Lamberth ruled (pdf) earlier this week:

the country code Top Level Domain names at issue may not be attached in satisfaction of plaintiffs’ judgments because they are not property subject to attachment under District of Columbia law.

However, he added in a footnote:

But the conclusion that ccTLDs may not be attached in satisfaction of a judgment under District of Columbia law does not mean that they cannot be property. It simply means that they are not attachable property within this statutory scheme.

Drawing on “sparse” case law, Lamberth’s rationale appears to be that domain names are not a product, they’re a service. He wrote:

The ccTLDs exist only as they are made operational by the ccTLD managers that administer the registries of second level domains within them and by the parties that cause the ccTLDs to be listed on the root zone file. A ccTLD, like a domain name, cannot be conceptualized apart from the services provided by these parties. The Court cannot order plaintiffs’ insertion into this arrangement.

The ruling, which may of course be challenged by the plaintiffs, helps ICANN and the US government avoid a huge political embarrassment at a time when the links between the two are being dissolved and relations with Iran are defrosting.

Ebola 1 – ICANN 0 as Marrakech dumped for Singapore

Kevin Murphy, November 4, 2014, Domain Policy

Ebola has claimed its first Moroccan victim, in the form of ICANN 52.

The organization confirmed overnight that its next public meeting will not be held in Marrakech next February after all.

Instead, the ICANN community will head to Singapore, and the now-familiar halls of the Raffles Convention Center.

ICANN had previously said it was reconsidering Marrakech due to the worry of African travel restrictions in light of the Ebola virus, which has infected over 13,000 people in West Africa.

While Morocco, thousands of kilometers away, has not recorded any cases, there’s concern that large international gatherings, such as the African Cup of Nations or ICANN 52, could import the disease.

ICANN did not mention Ebola in its announcement today, however.

Instead, it said that is relocating the meeting to Singapore due to the overworked community’s desire to stick to its three-meetings-per-year schedule.

It will head to Marrakech in early 2016 instead.

The Singapore meeting will be held on the same dates — February 8 to 12 — at a location that will be familiar to regular ICANN travelers. ICANNs 41 and 49 have been held there in the last few years.

For only the second time, ICANN tells the GAC to get stuffed

Kevin Murphy, November 3, 2014, Domain Policy

ICANN’s board of directors has decided to formally disagree with its Governmental Advisory Committee for what I believe is only the second time in the organization’s history.

In a letter to new GAC chair Thomas Schneider today, ICANN chair Steve Crocker took issue with the fact that the GAC recently advised the board to cut the GNSO from a policy-making decision.

The letter kick-starts a formal “Consultation Procedure” in which the board and GAC try to reconcile their differences.

It’s only the second time, I believe, that this kind of procedure — which has been alluded to in the ICANN bylaws since the early days of the organization — has been invoked by the board.

The first time was in 2010, when the board initiated a consultation with the GAC when they disagreed about approval of the .xxx gTLD.

It was all a bit slapdash back then, but the procedure has since been formalized somewhat into a seven-step process that Crocker outlined in an attachment to his letter (pdf) today.

The actual substance of the disagreement is a bit “inside baseball”, relating to the long-running (embarrassing, time-wasting) saga over protection for Red Cross/Red Crescent names in new gTLDs.

Back in June at the ICANN 50 public meeting in London, the GAC issued advice stating:

the protections due to the Red Cross and Red Crescent terms and names should not be subjected to, or conditioned upon, a policy development process

A Policy Development Process is the mechanism through which the multi-stakeholder GNSO creates new ICANN policies. Generally, a PDP takes a really long time.

The GNSO had already finished a PDP that granted protection to the names of the Red Cross and Red Crescent in multiple scripts across all new gTLDs, but the GAC suddenly decided earlier this year that it wanted the names of 189 national Red Cross organizations protected too.

And it wasn’t prepared to wait for another PDP to get it.

So, in its haste to get its changing RC/RC demands met by ICANN, the GAC basically told ICANN’s board to ignore the GNSO.

That was obviously totally uncool — a slap in the face for the rest of the ICANN community and a bit of an admission that the GAC doesn’t like to play nicely in a multi-stakeholder context.

But it would also be, Crocker told Schneider today, a violation of ICANN’s bylaws:

The Board has concerns about the advice in the London Communiqué because it appears to be inconsistent with the framework established in the Bylaws granting the GNSO authority to recommend consensus policies to the Board, and the Board to appropriately act upon policies developed through the bottom-up consensus policy developed by the GNSO.

Now that Crocker has formally initiated the Consultation Procedure, the process now calls for a series of written and face-to-face interactions that could last as long as six months.

While the GAC may not be getting the speedy resolution it so wanted, the ICANN board’s New gTLD Program Committee has nevertheless already voted to give the Red Cross and Red Crescent the additional protections the GAC wanted, albeit only on a temporary basis.

Oops! Cock-up reveals ICANN survey respondent emails

Kevin Murphy, November 1, 2014, Domain Policy

An ICANN contractor accidentally revealed the email addresses of almost 100 people who responded to a survey related to a review of the Generic Names Supporting Organization.

An invitation to participate in a follow-up survey was sent out to respondents today with all the email addresses in the To:, rather than BCC:, field.

Westlake Governance, which is conducting the survey for ICANN, quickly sent an apology:

We have been sending invitations in batches, and regret that we included your address in the only set of invitations that was copied inadvertently in the “To” line as addressee, rather than as a “Bcc.”

We sincerely apologise for this breach of our internal protocols and potentially of your privacy.

The misfire revealed that 15 out of the 98 listed respondents have @icann.org email addresses, suggesting roughly 15% of the responses came from ICANN staffers.

While the survey certainly anticipated responses from within the organization — one question gives “staff” as an option for the respondent to state their affiliation — some are not happy anyway.

Neustar vice president Jeff Neuman tweeted:

The massive, 93-question survey (pdf) was designed to kick-start the next cycle in ICANN’s interminable reviews of its policy-making bodies, in this case the GNSO.

The results of the survey will be used to inform a review of the GNSO’s structure, which could potentially re-balance power within the organization.

ICANN board bill tops $2 million

Kevin Murphy, November 1, 2014, Domain Policy

ICANN’s board of directors cost the organization over $2 million in pay and expenses in its fiscal 2014, a document released last night shows.

The total bill for the year ended June 30 was $2,000,609, up 16% on FY13’s $1,721,191 and up 27% on the FY12 figure.

The majority of the expenditure went on travel and other expenses. Just $538,983 went on compensation.

ICANN directors get $35,000 per year basic, plus another $5,000 for each board committee they chair. Board chair Steve Crocker gets $75,000 and accumulated $149,000 in FY2014 expenses.

Six directors chose to receive no compensation whatsoever, though they all racked up travel expenses.

The $2 million total does not include any contribution from CEO Fadi Chehade.

Chehade’s salary was $559,999. He also received $253,826 in bonuses and accumulated expenses totaling $519,421.

FY14 was of course the year in which Chehade and members of the board traveled extensively for outreach related to the IANA stewardship transition process and the NetMundial initiative.