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ICANN sets deadline to sort out Olympic shambles

Kevin Murphy, September 17, 2012, Domain Policy

ICANN’s board of directors has set itself a deadline to come to a decision on special new gTLD protections for the International Olympic Committee and Red Cross.

It’s looking rather like the IOC, Red Cross and Red Crescent are going to get more of the concessions they’ve been asking for for the last few years, including protection at the second level.

In a resolution passed last week, the ICANN board urged the Generic Names Supporting Organization to make recommendations before January 31 next year, and indicated that it would take matters into its own hands if GNSO consensus cannot be found.

Resolved, the Board thanks the GNSO for its continued attention and ongoing work on this topic, and requests that the GNSO continue its work on a policy recommendation on second-level protections for the IOC and Red Cross/Red Crescent names on an expedited basis.

Resolved (NG2012.09.13.01), if it is not possible to conclude the policy work prior to 31 January 2013, the Board requests that the GNSO Council advise the Board by no later than that date if it is aware of any reason, such as concerns with the global public interest or the security or stability of the DNS, that the Board should take into account in making its decision about whether to include second level protections for the IOC and Red Cross/Red Crescent names

The GNSO has a working group looking at the problem, which is currently deciding whether to recommend starting a formal Policy Development Process.

Given that new gTLDs are expected to start launching in less than a year, and given that PDPs take forever to wrap up, if they ever do, it’s also trying to decide whether to recommend that the IOC/RC/RC marks should be protected in the interim.

Exact matches of the Olympic and Red Cross names, as well as a limited number of translations, would be “reserved” or otherwise removed from sale by each new gTLD registry.

The ICANN board appears to be leaning towards granting these interim protections. In last week’s resolution, it stated:

the Board favors a conservative approach, that restrictions on second-level registration can be lifted at a later time, but restrictions cannot be applied retroactively after domain names are registered.

The IOC/RC/RC debate has been going on since June 2011, when the ICANN board gave the organizations temporary top-level protection in new gTLDs and then passed the hot potato to the GNSO.

The GNSO working group tasked with sorting through the resulting policy mess was subsequently hindered by procedural posturing and acrimony at the Council level and an unreceptive board.

There’s a parallel argument going on at the moment with intergovernmental organizations demanding the same or greater protection, too. Expect IGOs to react with further (mock?) outrage if the IOC/RC/RC get special treatment.

Recently unredacted ICANN board briefing documents reignited the IGO debate last week.

Fadi Chehade starts at ICANN today, immediately shakes up senior management

Kevin Murphy, September 14, 2012, Domain Policy

ICANN’s new CEO started work today, two weeks ahead of his original schedule, and immediately made several big changes to the senior management team.

In what can only be described as a ballsy move, Fadi Chehadé has already recruited two of his erstwhile rivals for the CEO job into newly created senior positions.

Other senior executives have also been promoted, a move that Chehadé hopes will send a message about his priorities.

He outlined his changes in an interview with DI.

Two big new hires

Seasoned public relations executive Sally Costerton has been hired as chief stakeholder engagement officer, while Egypt’s former minister of communications Tarek Kamel is the new senior adviser for government affairs. Both are new positions.

Both had put themselves forward as candidates to replace departing CEO Rod Beckstrom earlier this year and both were shortlisted by ICANN’s executive search team before they settled on Chehadé.

Costerton, described last year as “arguably the most senior woman in the UK PR consultancy business” is the British former CEO of the EMEA arm of Hill & Knowlton, a major PR agency.

While Kamel’s technical and internet governance credentials are sound, he’s a potentially controversial hire.

An engineer by training, he’s spent most of his career involved in telecommunications and internet regulatory matters.

Along with his government duties, he’s participated in the Internet Society, the Internet Governance Forum, and has been involved with ICANN since the very beginning, speaking at its two Cairo meetings.

But he’s best-known most recently for being Egypt’s minister of IT under Hosni Mubarak’s presidency, up until the 2011 Egyptian revolution.

Basically, he was in charge when the internet got turned off.

The move to shut down internet services during the early days of the revolution attracted personal appeals to Kamel from former ICANNer Andrew McLaughlin and vocal community member Khaled Fattal.

While I can see Kamel’s appointment creating headlines in the coming days (think “ICANN hires man who turned off the internet”), Chehadé insists that his actions during the revolution were “near heroism”.

“He did not turn off the internet,” Chehadé told DI. “As I’ve spent quite a bit of time understanding the facts and circumstances surrounding what did take place in Egypt, it turns out that’s a wrong fact.”

“Tarek was put under an enormous amount of personal risk for himself, for his family,” Chehadé said. “Once I understood the facts I’m very confident that Tarek was a very positive force in the events that took place during this tumultuous time in Egypt.”

“I now am very clear on the frankly near-heroism that he has put on the table in order to ensure the people of Egypt got their services back as quickly as possible,” he said.

Promotions for Serad and Pritz

Kurt Pritz, who’s currently senior vice president of stakeholder relations and acting director of the new gTLD program, is getting promoted to a C-level spot, reporting to Chehadé.

Pritz, with his encyclopedic knowledge of the new gTLD program and willingness to get beaten up by the community on a regular basis, is not somebody you want to risk leaving ICANN at this critical juncture.

He’ll be chief of strategy from now on.

Maguy Serad, who was hired as senior director of contractual compliance in March 2011, has been promoted to vice president of contractual compliance, effective today, reporting directly to Chehadé.

Chehadé said that he wants Serad’s promotion to send a message to the community about the importance of the compliance function, something he discussed during his speech in Prague this June.

“I will be frankly bringing a lot more weight and a lot more independent management from my office to the compliance function,” he said. “This is important both in substance and as well as in sending a clear message of the importance of this area to the community.”

“I’m doing it on the first day to send that message clearly.”

Other changes

With Barbara Ann Clay resigning as vice president of communications a couple of weeks ago, her function has been filled on an interim basis by Jim Trengrove, who’s reporting to Costerton.

Elad Levinson, who is no longer vice president of organizational effectiveness, is not being immediately replaced.

Chehadé said that these two departures did not happen on his watch and offered no additional details.

Akram Atallah, who has been keeping the CEO’s chair warm since Beckstrom left in early July, will resume his former role as chief operating officer from today.

His position is being expanded to include the operations side of the new gTLD program, registry and registrar services, and security, Chehadé said.

“Whistleblower” accuses Nominet of trying to dodge freedom of information law

Kevin Murphy, September 11, 2012, Domain Policy

Nominet, the .uk registry, tried to evade the Freedom Of Information Act by using private email addresses to communicate with the British government, according to emails leaked by a disgruntled former executive.

Copies of the emails provided to DI by former policy director Emily Taylor appear to show that Nominet and the Department for Business, Enterprise and Regulatory Reform worked secretly in 2008 to invite government regulatory oversight of the .uk namespace.

Back then, Nominet’s elected board of directors was seen as being in danger of being taken over by domainers who were hostile to Nominet’s management and the rest of its board.

The company was ultimately restructured following an independent review, and Parliament passed legislation that enables the government to take over .uk if it appears to be in danger of capture.

The party line to date has been that the review was commissioned in October 2008, only after BERR wrote to Nominet to express concerns about its governance problems.

That position is looking increasingly open to question, however.

As I reported for The Register last month, an employment tribunal seemed to agree with Taylor that Nominet had approached BERR to discuss this so-called “Plan G” first.

The latest leaked emails, assuming they’re genuine, also make the Nominet position appear less believable.

This is the text of an email apparently sent from the personal email account of BERR civil servant Geoff Smith to the personal email account of Nominet senior policy adviser Martin Boyle:

Martin

Thanks. It was helpful to talk earlier. I have had a look at your mark up and the additional point by Emily. All good stuff but – as I said – I think the heart of our letter has to be a set of reasonable and intelligent questions that a senior civil servant, not familiar with the inner workings of the company, might ask. As I said earlier, if it needs translation from the Mandarin, then it has failed. Equally, if it reads like a Nominet management position paper on BERR letterhead then it has also failed. I will look seriously at your amendments and try and produce a version for David’s signature over the next two days.

It feels wonderful to work free from fear of FOI !!

Geoff

The email is dated October 8, 2008, a week before the BERR letter (pdf) that kicked off the independent governance review.

The “fear of FOI” is of course a reference to the Freedom Of Information Act, which enables British citizens to request government documentation including emails.

By using personal email accounts, Nominet and BERR would have been able to keep their negotiations out of reach of the FOIA.

The emails, again assuming they’re genuine, also show that Mark Carvell, senior advisor at BERR and longstanding UK representative on ICANN’s Governmental Advisory Committee, was using his personal email account to communicate with Nominet executives during the same period.

In one email, Boyle encourages Carvell and Smith to delete emails in anticipation of a FOI request.

Sent: Fri, 31 October, 2008 18:55:18
Subject: FW: [nom-steer] Save Nom-steer!

Geoff, Mark

This e-mail (below) – posted on nom-steer – makes me think that a FoI is just around the corner!

Most obvious would be the e-mail from me asking when we might expect the letter, but Pauline used this as the mail to reply to with the signed letter from David.

You might wish to trawl over your mails – in and out – to do a bit of pruning and suggest to Pauline that a couple might need to be deleted, too.

I’ve spoken to Tom and he is aware, too.

Martin Boyle

Attached is a forwarded email from domainer Andrew Bennett, then a member of Nominet’s Policy Advisory Board, which appears to show Bennett researching relationships between the company and BERR.

There’s no evidence that Smith or Carvell did delete any emails.

BERR has changed names a couple of times under successive governments, and is now the Department of Business, Innovation and Skills. Carvell is now at the Department for Culture, Media and Sport.

Taylor has provided her documents to Nominet’s local MP, Andrew Smith, who has referred the matter to the Head of the Home Civil Service and the chair of the Culture, Media and Sport Select Committee.

Trying to avoid FOI is frowned upon.

Last year, the Information Commissioner’s Office said that “information held in private email accounts can be subject to Freedom of Information law if it relates to official business”.

In addition to the FOIA claims, Taylor alleges that there is “an inappropriately close relationship between government officials in DCMS, BIS, and possibly Ofcom, and Nominet.”

Nominet told DI today that it is looking into the matter but declined to comment further.

Last month, when Taylor’s employment tribunal documents became public, the company issued a statement in which it denied instigating the government’s request for an independent review, saying:

This is not the case. Two major organisations (an ISP and a major British trade body) had already been in contact with BERR prior to any discussions between Nominet and the Government. Again, Nominet took actions focussed on supporting the ongoing trust in .uk and that we believed supported the goals of our membership as a whole. As you would expect of an organisation responsible for a piece of critical UK Internet infrastructure, we maintain a constant dialogue with the Government – but all conversations on this matter post-date the initial raising of concerns by stakeholders.

Taylor claims, however, that the ISP and the trade body (BT and the Confederation of British Industry) approached BERR at the behest of herself and other Nominet executives.

As previously reported, Taylor resigned from her position at Nominet in 2009, not long after returning to work following a period of stress-related sick leave.

An employment tribunal found last year that she had been constructively dismissed — that is, essentially forced out — by Nominet after she filed a grievance against her colleagues and they grew to distrust her. She’s currently an independent consultant.

Secret ICANN briefing fuels IGO new gTLDs debate

Kevin Murphy, September 10, 2012, Domain Policy

The Universal Postal Union, newly installed .post registry manager, has launched a withering attack on ICANN for protecting some intergovernmental organizations and not others.

Its salvo follows the release of briefing materials — previously redacted — that ICANN’s board was given when it approved the new gTLD program at the Singapore meeting in June 2011.

The UPU says that the documents show that ICANN engaged in “ex post facto attempts at justifying legally-flawed decisions” when it decided to give extra protection to the Olympics and Red Cross/Red Crescent movements.

As you may recall, these protections were granted by the ICANN board when the program was approved, following lobbying of the Governmental Advisory Committee by both organizations.

In the current round, nobody was allowed to apply for gTLDs such as .redcross or .olympic, or translations in dozens of languages. There are also ongoing talks about extending this protection to the second level.

Some have argued that this would lead to a “slippery slope” that would resurrect the problematic Globally Protected Marks List, something ICANN and the GAC have denied.

They have maintained that the IOC/RC/RC movements are unique — their marks are protected by international treaty and many national laws — and no other groups qualify.

Other IGOs disagree.

Almost 40 IGOs, including the United Nations and International Telecommunications Union, are lobbying for an additional 1,108 strings to be given the same protection as the Olympics.

If they get what they want, four applied-for gTLDs could be rejected outright and dozens of others would be put at risk of failing string similarity reviews.

According to the UPU’s latest letter, ICANN’s newly disclosed rationale for giving only the IOC/RC/RC organizations special privileges was based on a flawed legal analysis:

most of the recommendations contained in documents such as the Unredacted Paper seem to reflect, in an unambiguous way, ex post facto attempts at justifying legally-flawed decisions in order to narrow even further the necessary eligibility “criteria” for protection of certain strings, apparently so that only two organizations would merit receiving such safeguards under the new gTLD process.

In other words, according to the UPU and others, ICANN found itself in a position in June 2011 where it had to throw the GAC a few bones in order to push the new gTLD program out of the door, so it tried to grant the IOC/RC/RC protections in such a way that the floodgates were not opened to other organizations.

You can read the unredacted ICANN briefing materials here. The UPU letter, which deconstructs the document, is here.

It’s worth noting that the Applicant Guidebook already gives IGOs the explicit right to file Legal Rights Objections against new gTLD applications, even if they don’t have trademark protection.

Big brands ask US for published list of known cybersquatters, other stuff

Kevin Murphy, September 6, 2012, Domain Policy

A public, published list of repeat cybersquatters was among the demands that the trademark lobby took to a meeting with the US government in Washington DC yesterday.

The summit, hosted by the Department of Commerce, was the latest stage in the US government’s response to the campaign for more new gTLD rights protection mechanisms kicked off by the Association of National Advertisers a little over a year ago.

About 30 big brand owners, along with several trade associations and campaign groups, took part.

The Internet Commerce Association somehow managed to blag an invitation too, and was the only representative of domain registrants, according to a blog post by ICA counsel Phil Corwin.

The companies, which included tech companies such as Microsoft, Facebook, AOL, Yahoo and eBay and offline brand owners such as Nike, Coca-Cola, Time Warner and News Corp, met in early June to formulate a set of recommendations to take to Commerce.

These recommendations are outlined in an August 29 letter (pdf), a copy of which DI has obtained.

Notably, the companies asked for a published list of “bad actors” who have repeatedly lost Uniform Rapid Suspension cases. The letter states:

Recidivist bad actors should be tracked via a list of common Respondents and that list should be published and publicly available.

However, we understand that this request is a low-priority item, discussed only briefly yesterday, and that Commerce representatives did not immediately embrace it.

The bulk of the discussions related to tweaks trademark owners want to see in the Trademark Claims service — which alerts them and the registrant when somebody tries to register a potentially infringing domain name — and the URS.

The brand owners want Trademark Claims, which new gTLD registries are only obliged to offer for the first 60 days of general availability, extended for a longer period, possibly up to three years.

On the face of it, this is among the most reasonable longstanding demands from the IP crowd, but ICANN has resisted it to date as it’s worried about creating a monopoly in the pre-existing market for trademark monitoring services.

If the Trademark Clearinghouse is alerting you every time somebody registers a domain name with your brand in it, why pay MarkMonitor or Melbourne IT for the same service?

The letter also says that Trademark Claims should cover brand+keyword registrations, and domains containing registered trademarks, rather than just exact matches.

The worrisome aspect of this request is that there’s quite a high risk of false positives due to run-on words, very short trademarks, acronyms and dictionary words.

Non-commercial ICANN stakeholders dislike this due to the possibility of a chilling effect on free speech, while registries and registrars don’t like anything that puts unnecessary obstacles in the registration path.

With URS, the trademark owners want a full loser-pays system, though they acknowledge that it could raise the filing fee, which is something they don’t want.

To keep costs down, they want a lower filing fee for cases where the registrant does not respond and a URS panelist is not appointed, which seems like a reasonable idea.

The idea of ICANN (and, ultimately, registrants) subsidizing URS fees has also been put forward.

Finally, the trademark owners want registries to implement defensive blocking systems with one-time fees, modeled on the Sunrise B process that ICM Registry used with the launch of .xxx.

Some of the ideas — such as lower filing fees for uncontested URS cases — seem fairly reasonable and I can see them gaining traction.

Others, such as the brand+keyword protections, seem harder to implement and less likely to pass through ICANN unchallenged.

So what happens next? According to ICA’s Corwin:

For their part, the hosts of the meeting [Commerce] listened politely but did not to endorse any of the suggestions, although they did commit to follow-up interagency discussions. It was pointed out that some of the proposals have been raised before and went nowhere within ICANN, and questions were raised about what process would be utilized to place them before the broader ICANN community and its Board. It was also indicated that the U.S. would be reluctant to undertake any unilateral communications on these matters to ICANN’s Board.

Given this reluctance, I wouldn’t be surprised to see some of these ideas bubbling up through the Governmental Advisory Committee instead, as ideas from the US trademark lobby are wont to do.

As with every ICANN meeting, expect to see further discussions in Toronto next month.