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ICANN holds its ground on weaseled GAC advice

Kevin Murphy, September 11, 2014, Domain Policy

While many members of the community are getting upset about the plan to make it harder for ICANN’s board to overrule GAC advice, today we got a reminder that the board is not the GAC’s lapdog.

The New gTLD Program Committee is standing firm on the way it creatively reinterpreted Governmental Advisory Committee advice to make it less punishing on a few dozen new gTLD registries.

The NGPC passed a resolution on Monday approving an updated scorecard to send to the GAC. ICANN chair Steve Crocker delivered it to GAC chair Heather Dryden yesterday.

A “GAC scorecard” is a table of the GAC’s demands, taken from the formal advice it issues at the end of each public meeting, with the NGPC’s formal responses listed alongside.

The latest scorecard (pdf) addresses issues raised in the last five ICANN meetings, dating back to the Beijing meeting in April 2013.

The issues mainly relate to the GAC’s desire that certain new gTLDs, such as those related to regulated industries, be locked down much tighter than many of the actual applicants want.

One big point of contention has been the GAC’s demand that registrants in gTLDs such as .attorney, .bank and .doctor should be forced to provide a relevant licence or other credentials at point of sale.

The GAC’s exact words, from its Beijing communique (pdf), were:

At the time of registration, the registry operator must verify and validate the registrants’ authorisations, charters, licenses and/or other related credentials for participation in that sector.

However, when the NGPC came up with its first response, in November last year, it had substantially diluted the advice. The creative reinterpretation I mentioned earlier read:

Registry operators will include a provision in their Registry-Registrar Agreements that requires Registrars to include in their Registration Agreements a provision requiring a representation that the Registrant possesses any necessary authorisations, charters, licenses and/or other related credentials for participation in the sector associated with the Registry TLD string.

In other words, rather than presenting your medical licence to a registrar when buying a .doctor domain, registrants would merely assert they have such a licence on the understanding that they could lose their domain if they fail to present it on demand in future.

The GAC, which isn’t entirely stupid, spotted ICANN’s reimagining of the Beijing communique.

At the Singapore meeting this March, it issued a list of passive-aggressive questions (pdf) for the NGPC, noting that its Beijing advice had been “amended” by the board and wondering whether this would lead to “greater risks of fraud and deception” in new gTLDs.

ICANN’s response this week is quite lengthy.

The NGPC said it had “to balance many competing positions” when figuring out how to respond to the Beijing communique, and that it tried “to address all of the completing concerns in a way that respected the spirit and intent of the GAC’s advice.”

The committee gives a number of examples (starting on page 15 of this PDF) explaining why the GAC’s original demands would be unreasonably burdensome not only on registries and registrars but also on registrants.

Here’s one example:

consider a potential registrant that is a multinational insurance company seeking to register a domain name in the .insurance TLD. Suppose the multinational insurance company has locations in over 30 countries, including the United States and Kenya. If the potential registrant insurance company attempts to register a domain name in the .insurance TLD, would that trigger an obligation to verify and validate its credentials, licenses, charters, etc. in the location of its headquarters, or all of the places around the globe where it does business. Is it realistic for a Registry Operator or Registrar to have the knowledge and expertise to determine precisely what credentials or authorizations are required in every country around the world (and in every city, county or other political division if those political subdivisions also require credentials [e.g. in the United States, insurance is primarily regulated at the state level and require a license in each of the 50 states])?

The short version is that the NGPC isn’t budging on this particular issue.

Rather than backpedaling, it’s giving the GAC the reasons it disagreed with its advice and explaining how it attempted to at least comply with the spirit, if not the letter, of Beijing.

As far as I can tell, that seems to be the case in each of the 39 items in the new scorecard — explanation not capitulation. Read the full thing here.

Panel slaps ICANN in .africa case

Kevin Murphy, August 18, 2014, Domain Policy

A panel of arbitrators had some stern words for ICANN as it handed controversial .africa gTLD applicant DotConnectAfrica another win in its Independent Review Process case.

In a 33-page procedural ruling (pdf) published by ICANN late Friday, the IRP panel disagreed with ICANN’s lawyers on almost every argument they made, siding with DCA instead.

The panel strongly indicated that it believes ICANN has attempted to render the IRP toothless, after losing the first such case against ICM Registry a few years ago.

The ruling means that ICANN’s top executives and board may have to face hostile cross-examination by DCA lawyers, rather than simply filing written statements with the panel.

It also means that whatever the IRP panel ultimately decides will in all likelihood be binding on ICANN.

DCA filed the IRP with the International Center for Dispute resolution after ICANN, accepting Governmental Advisory Committee advice, rejected the company’s application for .africa.

The ICDR panel has not yet ruled on the merits of the case — personally, I don’t think DCA has a leg to stand on — but last week’s ruling is certainly embarrassing for ICANN.

On a number of counts, ICANN tried to wriggle out of its accountability responsibilities, the ruling suggests.

Primarily, ICANN lawyers had argued that the eventual outcome of the IRP case should be advisory, rather than binding, but the panel disagreed.

The panel noted that new gTLD applicants sign away their rights to sue when they apply for a gTLD, meaning IRP is their last form of appeal against rejection.

It also called into question ICANN’s ability to police itself without a binding decision from an independent third party, pointing to previously reported accountability problems (my emphasis):

The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.

Moreover, assuming for the sake of argument that it is acceptable for ICANN to adopt a remedial scheme with no teeth, the Panel is of the opinion that, at a minimum, the IRP should forthrightly explain and acknowledge that the process is merely advisory. This would at least let parties know before embarking on a potentially expensive process that a victory before the IRP panel may be ignored by ICANN.

The decision is the opposite of what the IRP panel found in the ICM Registry case, which was ruled to be “non-binding” in nature.

While deciding that its own eventual ruling will be precedential, the panel said it did not have to follow the precedent from the ICM case, due to changes made to the IRP procedure in the meantime.

ICANN had also argued against the idea of witnesses being cross-examined, but the panel again disagreed, saying that both parties will have the opportunity “to challenge and test the veracity of statements made by witnesses”.

The hearing will be conducted by video ink, which could reduce costs somewhat, but it’s not quite as streamlined as ICANN was looking for.

Not only will ICANN’s top people face a grilling by DCA’s lawyers, but ICANN’s lawyers will, it seems, get a chance to put DCA boss Sophia Bekele on the stand.

I’d pay good money for a ticket to that hearing.

Governments to get more power at ICANN

Kevin Murphy, August 18, 2014, Domain Policy

Governments are to get more power to influence ICANN’s board of directors.

Under a proposal launched late Friday, ICANN plans to make it harder for the board to reject the often-controversial advice of the Governmental Advisory Committee.

Today, the board is able to reject GAC advice with a simple majority vote, which triggers a consultation and reconciliation process.

Following the proposed changes to the ICANN bylaws, the threshold would be increased to a two-thirds majority.

The change is to be made following the recommendations of the Board-GAC Recommendations Implementation Working Group, made up of members of the board and the GAC.

The new rule would bring the GAC into line with the multistakeholder Generic Names Supporting Organization. The ICANN board also needs a two-thirds vote to reject a formal GNSO recommendation.

The differences between the GAC and the GNSO include the lack of detailed industry awareness GAC members regularly demonstrate during their public meetings, and the fact that GAC advice regularly comprises deliberately vague negotiated language that ICANN’s board has a hard time interpreting.

That disconnect may improve in future due to the recent creation of a GAC-GNSO liaison position, designed to keep the GAC up to date with policy goings-on between the thrice-yearly ICANN meetings.

The proposed bylaws change is open for public comment, but appears to be a fait accompli; the board has already said it will use the higher voting threshold if called to make a decision on GAC advice prior to its formal adoption.

Dublin picked for ICANN 54

Kevin Murphy, August 5, 2014, Domain Policy

ICANN had selected Dublin to play host to its 54th public meeting, which will be held in October next year.

According to a blog post from Michele Neylon, CEO of Irish registrar Blacknight, the venue will be the imaginatively named The Convention Centre, Dublin.

The primary sponsor will be INEX, the local internet exchange, he reports.

It will be interesting to see if the Irish government bothers to show up. It’s not a member of the GAC and Neylon has frequently criticized it for taking no interest in ICANN affairs.

The meeting will be held from 18 to 22 October, 2015.

Despite Ireland having only one accredited registrar, Dublin houses the nominal headquarters for a big chunk of the registry side of the industry, largely for tax purposes.

Afilias has been there for over a decade and recently Rightside, the Demand Media spin-off, also relocated its HQ there. A number of smaller new gTLD applicants founded in other countries are also “based” in Dublin.

ICANN still hasn’t named the city for ICANN 53, 2015’s mid-year meeting. I assume it will be in either Asia or Latin America. ICANN 51 is in Los Angeles this October, 52 is in Marrakech next February.

Personally, I’m looking forward to visiting Dublin. Despite what a startling number of you (even people who’ve known me for years!) seem to think, I’m not Irish and I’ve never been to Ireland.

Two more years! Chehade stays at ICANN with $100,000 pay raise

Kevin Murphy, August 5, 2014, Domain Policy

ICANN CEO Fadi Chehade has had his contract renewed for an extra two years with a new pay package worth up to $100,000 more than he was previously getting.

The ICANN board of directors last week approved an extension of his contract, which had not been due to expire until July next year, to June 30, 2017.

Effectively immediately, he’ll receive a new salary of $630,000 a year, with a performance-related bonus of up to $270,000 per year. That’s up 12.5% from his original salary of $560,000 and $240,000 bonus.

ICANN described the compensation as “comparable to similar positions”.

Despite the hefty bump, Chehade is still on a smaller package than his immediate predecessor, Rod Beckstrom, who was on a base salary of $750,000 with $195,000 in bonuses.

By renewing his contract a year early, ICANN avoids the kind of leadership speculation that dogged Beckstrom’s final year in the corner office.

“As we noted in the Board resolution, taking this action will help ensure the stability in leadership that is important for ICANN. It also shows the support and confidence that the Board has in Fadi,” ICANN chair Steve Crocker said in a statement.