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Burr to replace Tonkin on ICANN board

Kevin Murphy, April 19, 2016, Domain Policy

ICANN lifer Becky Burr is to replace Bruce Tonkin on the ICANN board of directors when his term expires in November.

She’ll take the seat reserved for the Contracted Parties House of the Generic Names Supporting Organization, following a vote by registries and registrars a few weeks ago.

Tonkin, CTO of Aussie registrar Melbourne IT, has held the seat for the last nine years. He’s limited to three consecutive three-year terms under ICANN bylaws.

Burr, a lawyer by trade, is currently chief privacy officer at TLD registry Neustar, a position she has held since 2012.

Before that, she was a partner at the law firm Wilmer Hale.

But way back in 1998, in a senior role at the US National Telecommunications and Information Administration, she was one of the key people responsible for ICANN’s creation under the Clinton administration.

It’s open season on ICANN as judge rules new gTLD applicants CAN sue

Kevin Murphy, April 13, 2016, Domain Policy

DotConnectAfrica has won a California court ruling that will allow it to continue suing ICANN over its twice-rejected .africa gTLD application.

District judge Gary Klausner ruled yesterday that the litigation waiver all applicants had to sign when they applied may be unenforceable.

“The Court finds substantial questions as to the Release, weighing toward its unenforceability,” he wrote (pdf).

California law says that such waivers cannot stop people being sued for fraud, and fraud is what DCA is alleging, he explained.

DCA alleges that ICANN intended to deny DCA’s application after the IRP proceeding under any pretext and without a legitimate reason.

The evidence suggests that ICANN intended to deny DCA’s application based on pretext. Defendants have not introduced any controverting facts. As such, the Court finds serious questions regarding the enforceability of the Release due to California Civil Code § 1668.

The judge granted DCA’s request for a preliminary injunction that will prevent it from delegating .africa to successful applicant ZACR.

ZACR has the backing of the African Union Commission and, per ICANN rules, over 60% of the governments in Africa.

DCA applied for .africa with no government support, but with an AUC letter of support than had already been retracted. The company claims that the AUC was not allowed to withdraw its endorsement under ICANN rules.

But it doesn’t seem to matter what the governments of Africa want. Klausner wrote:

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

Sorry Africa, no gTLD for you yet!

The case continues…

ICANN refuses to play Ted Cruz’s game

Kevin Murphy, April 8, 2016, Domain Policy

ICANN has blown off US senator Ted Cruz by declining to answer a bunch of framed questions about its engagement with China.

In a letter (pdf) to Cruz and fellow senators Michael Lee and James Lankford, ICANN chair Steve Crocker testily explains that ICANN has offices and relationships all over the world, given the nature of its mandate.

There’s a suggestion that ICANN’s board resents the “insinuation” that talking to China means it’s ready to be captured by it or implement its censorship policies.

Crocker wrote:

ICANN does not endorse the views of any particular stakeholder, regardless of the organization’s engagement efforts, the composition of its advisory committees, and where it holds its meetings. In this sense, ICANN’s engagement with China as a global Internet stakeholder does not suggest any level of support for the nation’s government or its policies. Similarly, no endorsement of such matters could reasonably be inferred from the operations of the United States’ largest technology firms operating in China, including Cisco, Dell, HP, IBM, Intel, LinkedIn, Microsoft, Qualcomm and Uber. These firms, like ICANN, do not endorse the policies, laws, and regulations of China simply by operating there. As long as the U.S. Government has a policy of engagement with China, U.S. firms operate there without the insinuation that doing so makes them complicit in China’s censorship.

The letter was written in response to a bullet-pointed list of a few dozen question Cruz has posed in letters over the last couple of months.

The Cruz missives were a fairly obvious fishing expedition, with the senators apparently looking for sticks to beat ICANN with in the form of evidence that the organization is too friendly with the dreaded Chinese.

Some on the right wing of American politics seem to see the transition of ICANN/IANA partially away from US government oversight as a wedge issue they can use to show Obama is happily selling the ‘Murican constitution to China.

But Crocker ducks most of Cruz’s questions, preferring instead to present an alternative narrative.

He does not, for example, give answers to simple factual questions related to former CEO Fadi Chehade’s joining as co-chair of a committee of the China-led World Internet Conference.

Instead, he refers Cruz to a previous letter from Chehade, and notes that Chehade is no longer with ICANN.

He does not answer anything related to XYZ.com’s proposals related to selling .xyz domain names in China, which Cruz reckons could be used to censor the people of Hong Kong.

Neither does he confirm that ICANN pays government-affiliated CNNIC for collocated office space in Beijing, which wasn’t disclosed until it came out at a press conference last month.

I imagine Cruz, in receipt of Crocker’s letter, is feeling much the same as I do when an interviewee waffles in response to simple questions.

Pissed off.

I doubt this exchange is over.

Cruz keeps up pressure on ICANN brass

Kevin Murphy, April 6, 2016, Domain Policy

US presidential wannabe Sen. Ted Cruz has sent ICANN’s chair another nasty letter, demanding to know why he hasn’t yet responded to a laundry list of questions about former CEO Fadi Chehade’s relationship with the Chinese government.

The letter, also signed by fellow Republican senators Mike Lee and James Lankford, expresses “dismay” over the lack of response from Steve Crocker.

Cruz et al have been posing awkward questions to ICANN’s top brass since it emerged in December that Chehade had taken an unpaid position on an internet governance advisory committee run by China.

The senators say they’re worried that the US relinquishing its oversight of the IANA functions will give governments with poor freedom of expression records too much control over the internet.

A more likely explanation is that the IANA transition is an Obama initiative, and if Obama single-handedly saved a bunch of kids from a burning orphanage Cruz & Co would blame him for contributing to over-population.

That’s more or less the sentiment Chehade expressed at ICANN 55 last month, when he said:

And you know that this [Cruz] letter is not driven by anyone really worried about the transition. This is someone really worried about politics. So let’s not bring politics into the transition… Let’s resist bringing the politics of our lovely capital into this process… I think everyone knows this is political, even those in his own party… We will answer all these questions… And we will respond to the questions fully, to the Senators’ full satisfaction.

The new letter calls Chehade out for this statement, saying he “disparaged” what they call an “oversight request”.

An actual Congressional oversight hearing, focusing on the transition, a couple of weeks ago had absolutely no fireworks whatsoever.

It seems that the Republican-led committee actually responsible for internet matters, which does not include Cruz as a member, isn’t particularly upset about the IANA transition.

Nevertheless, the new Cruz letter re-poses a whole list of questions about Chehade’s involvement in China and Crocker and the ICANN board’s response to it.

The questions were originally asked March 3. ICANN had evidently said it would respond by March 18 but has not.

Cruz’s hand in the Republican primaries against front-runner Donald Trump has been strengthened in recent days, increasing the possibility that he could become US president next January.

“Cheese sandwich” comment blamed for sexual harassment complaint

Kevin Murphy, March 30, 2016, Domain Policy

ICANN’s first formal case of sexual harassment has been closed with no official finding by the Ombudsman.

Ombudsman Chris LaHatte today said he was unable to establish the facts of the alleged incident, which is said to have taken place during a coffee break at the ICANN 55 meeting in Marrkech, March 6.

LaHatte said that the complainant’s decision to publicly name the man she says harassed her had “compromised” his investigation and that the alleged actions of the man “cannot be considered serious”.

It also emerged publicly for the first time that the interaction that led to the complaint was a brief conversation about sandwiches.

LaHatte’s report on the incident says:

The allegation was that she had a relatively brief discussion with a man, which she found derogatory and which she considered was sexual harassment. The description was that he leaned towards her and took her ICANN identification tag. There was a general discussion about the food, and she said that he made the comment, “you can go make me a cheese sandwich”

But the complainant told DI a slightly different version of events that she said is more accurate:

[The man] approached me, pulled at my name tag, examined it and dropped it. A little later, he lifted my name tag and flipped it back and forth, asking me “Where are you from?”, leaned in, lecherously looked at me and then said, “do you know how to make a cheese sandwich?” I was taken aback and responded angrily with “Yes, that is why I came here, to make you cheese sandwiches.” He went on to throw another lecherous look my way and said, “Well, I love veg sandwiches.”

According to LaHatte, the man in question flatly denies that the incident even took place.

The complainant says the incident can be defined as sexual harassment under the UN Convention on the Elimination of all Forms of Discrimination Against Women, Indian law (she is Indian), and the ICANN corporate policy against sexual harassment among its staff.

Neither party is a member of ICANN staff.

LaHatte says in his report that he has not considered jurisdiction or matters of definition, given that he was unable to even establish the facts of the incident.

In this complaint, the matters alleged cannot be considered serious by any standard. If in fact the action and statement were made, it may have been a lapse of good manners and insensitive to gender. Such issues need to be taken in proportion, and best practice is not to debate this in a public forum where the issues are not yet clear…

However any chance of discussing the comments has been compromised by the decision to identify the other party before my investigation could be completed, and for the parties to have had a full opportunity to consider the alternative versions. The other party has been publically named without an opportunity to make any comment or denial of the incident. It is also part of my role as the ombudsman to ensure that standards of procedural fairness are met, and the premature publication regrettably does not meet the standards of natural justice, because the parties have a right to be heard before this occurred.

LaHatte names the complainant (who waived her right to confidentiality) but not the man (who didn’t) in his report.

The man has apparently considered legal action over his public naming.