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Ombudsman probing secretive Trademark Clearinghouse meetings

Kevin Murphy, December 12, 2012, Domain Policy

ICANN Ombudsman Chris LaHatte is investigating ICANN’s recent closed-door Trademark Clearinghouse talks, and wants feedback from community members.

In a brief blog post this evening, LaHatte wrote:

I have received a complaint about the process used in the recent Trademark Clearinghouse meetings where decisions were made on the way forward. The complaint in summary says that the decisions were made without full consultation from some contituencies. I have of course not formed any view on this, and need input from people who participated and were pleased with the process, or from others who feel they were excluded. Such submissions can be made to me at ombudsman@icann.org, or on this blog. as comments.

The complaint refers to meetings in Brussels and Los Angeles recently, convened by CEO Fadi Chehade to discuss proposals jointly submitted by the Intellectual Property Constituency and Business Constituency.

The IPC and BC continue to call for stronger trademark protections in the new gTLD program, and the talks were designed to see if any changes could be made to the TMCH that would fulfill these requests.

The two meetings ultimately saw ICANN come up with a “strawman proposal” for giving the IPC/BC some of what they wanted, which is currently open for public comment.

However, the meetings were invitation-only and, unusually for ICANN, not webcast live. Attendees at the LA meeting also say that they were asked by ICANN not to tweet or blog about the talks.

While the LA meeting was apparently recorded, to the best of my knowledge the audio has not yet been released.

While LaHatte did not of course name the person who complained about these meetings, I’d hazard a guess they are from the non-commercial side of the house, members of which have already complained that they were vastly outnumbered by IP interests.

(UPDATE: I was correct. The complaint was filed by Maria Farrell of the Non-Commercial Users Constituency)

Former GNSO Council chair Stephane Van Gelder (from the Registrar Constituency) also recently wrote a guest post for DI in which he questioned the possible circumvention of ICANN’s established bottom-up policy-making processes.

There’s also substantial concern in other constituencies that ICANN is trying to appease the trademark lobby for political reasons, attempting to force through their desired changes to the new gTLD program under the guise of tweaks to “implementation” detail.

Chehade has asked the GNSO Council for “policy guidance” on the TMCH strawman proposals, which seems to be already stirring up passions on the Council ahead of its December 20 meeting.

The question of what is “implementation” and what is “policy” is a meme that we will be returning to before long, without doubt.

Ombudsman asks DCA to simmer down after .africa conflict of interest complaint

Kevin Murphy, December 10, 2012, Domain Policy

ICANN’s Ombudsman dismissed a complaint from DotConnectAfrica about alleged conflicts of interest on ICANN’s board of directors, but scolded DCA for its “intemperate” blog posts.

DCA complained in October that two members of the board — Mike Silber and Chris Disspain — have conflicts of interest in relation to the contested .africa gTLD.

DCA has applied for .africa without notable government support, whereas South African registry Uniforum has applied with formal backing from most African governments.

According to DCA’s complaint, as described by Ombudsman Chris LaHatte in a new blog post, Disspain and Silber somehow have conflicts of interest related to this contention set.

Silber is treasurer of ZADNA, the South African domain name authority, which oversees .za policy and ergo Uniforum’s ccTLD business, which is arguably a close connection to the .africa applicant.

Disspain is CEO of auDA, which oversees policy for Australia’s .au ccTLD and therefore has a relationship with AusRegistry, a major back-end provider for new gTLD applicants.

It’s not at all obvious what the alleged conflict of interest related to .africa is in Disspain’s case.

When LaHatte asked DCA executive director Sophia Bekele to explain the precise nature of the conflicts, he did not receive any information beyond identification of these two employment connections, both of which are already fully disclosed by ICANN.

Both men are members of the board’s New gTLD Program Committee, which wields the board’s power over the new gTLD program and is designed to comprise only non-conflicted directors.

LaHatte blogged that he was unable to find any discussion of .africa in any board or committee meeting minutes — because ICANN has not discussed any individual gTLD applications yet — and was therefore unable to find any unfair treatment of DCA.

Dealing with unfair treatment is of course the Ombudsman’s job. LaHatte concluded:

I consider that no disqualifying conflict of interest, or indeed any conflict of interest at all, is present in the actions of both Chris Disspain and Mike Silber. It is likely this complaint has led to increased awareness of the possibilities of conflict of interest, which the Board will carefully consider in terms of the existing policy about conflict, when the issue arises. I consider this should continue to be a matter for consideration in gTLD decision making by the Board.

But the Ombudsman also, it seems, had some concerns about the nature of DCA’s lobbying campaign over the last several months, which has been as vitriolic has it has been scattershot.

As previously noted, some of its allegations against its .africa rival have been baffling.

LaHatte clearly picked up on the tone of the debate also, blogging:

There has been considerable amount of discussion on blogs, Twitter and other sites and in comments on the ICANN website in relation to the new .africa gTLDs applications. Regrettably much of the discussion has been intemperate.

An aspect of this application has been the unfortunate tone of much of the debate on various websites blogs and other places. During the course of this investigation I discussed this with Sophia Bekele (at the Toronto meeting) and suggested that perhaps a less aggressive approach would be appropriate. She readily agreed to this.

The discussion and debate continues to be fairly vigorous, but I would suggest to the competing parties for .africa that they should pay attention to the ICANN rules about respectful communication.

As Uniforum has said little, and DCA a lot, I can also assume that the blog posts being referred to are DCA’s.

The company has for several months regularly posted often incomprehensible allegations on its blog, usually in multicolored text with liberal use of italics and bold.

Bekele was also last week rumbled using a fake identity on a mailing list to support DCA’s position.

.africa gTLD applicant caught using fake identity

Kevin Murphy, December 4, 2012, Domain Policy

DotConnectAfrica executive director Sophia Bekele has been rumbled using a fake identity to post to an ICANN mailing list, but says she did so due to “hatred” from other posters.

Members of the AfrICANN list discovered this week that a poster going by the name of “Lerato Ma” had Bekele’s name in her email headers.

Over several months, “Ma” had frequently defended DCA, which is locked in a bitter contention battle over the .africa gTLD.

Bekele told DI that she had been forced to used a pseudonym due to the hostility she’s experienced on the list when posting under her real name.

“The open display of hatred, aggression and personal anonymity [sic] towards my person and DCA is compelling me to post under Lerato Ma,” she said in an email.

“There is nothing to hide, it is just to protect myself from all that aggression,” she added. “It is not an important issues for us.”

AfrICANN is not an official ICANN mailing list, nor does it have any power. It’s hosted by Afrinic, the African IP address registry, and is used to discuss issues related to ICANN in Africa.

Unlike most ICANN mailing lists, which operate under a code of acceptable behavior, it has a fairly rough-and-tumble tone to it. Bekele and DCA are sometimes mocked by name.

ITU chief offers hand of friendship to ICANN

Kevin Murphy, December 3, 2012, Domain Policy

Are ICANN and the International Telecommunications Union going to start playing nicely?

That’s the message coming out of the ITU’s World Conference on International Telecommunications in Dubai this morning, when ITU secretary general Hamadoun Toure said the two organizations are “complementary”.

Addressing his “good friend”, ICANN CEO Fadi Chehade, during the WCIT opening ceremony, Toure said:

I have invited Fadi to recognize here the impact of ICANN on the development of Internet, and I’ve said this, this morning in our heads of delegations meeting that I believe we should be reaching out and them accepting here means that they are on the same road.

I think if you help us, we can walk the talk and I believe I can count on you and the words that I received when I heard of the acceptance of Fadi Chehade’ to this meeting was a testimony of everyone here, believing that it’s time to start working together to be complementary and to work together. And I believe we have started the first step of that.

Chehade himself addressed delegates during the opening ceremony too, speaking partly in Arabic, his first language.

WCIT was widely feared by certain countries — notably the US — due to concerns that some governments would try to assert authority over ICANN’s internet governance functions.

That fear seems to have been calmed in recent weeks, but the substantive policy work at WCIT, which runs until December 13, will be the real test of the ITU’s relationship with ICANN.

If the GNSO is irrelevant, ICANN itself is at risk [Guest Post]

Stéphane Van Gelder, December 1, 2012, Domain Policy

The weeks since October’s Toronto ICANN meeting have seen some extraordinary (and, if you care about the multi-stakeholder model, rather worrying), activity.

First, there were the two by-invitation-only meetings organised in November at ICANN CEO Fadi Chehadé’s behest to iron out the Trademark Clearinghouse (TMCH).

The TMCH is one of the Rights Protection Mechanisms (RPMs) being put in place to protect people with prior rights such as trademarks from the risk of seeing them hijacked as a spate of new gTLDs come online.

The first meeting in Brussels served as a warning sign that policy developed by the many might be renegotiated at the last minute by a few. The follow-up meeting in Los Angeles seemed to confirm this.

Two groups, the Intellectual Property Constituency (IPC) and the Business Constituency (BC), met with the CEO to discuss changing the TMCH scheme. And although others were allowed in the room, they were clearly told not to tell the outside world about the details of the discussions.

Chehadé came out of the meeting with a strawman proposal for changes to the TMCH that includes changes suggested by the IPC and the BC. Changes that, depending upon which side of the table you’re sitting on, look either very much like policy changes or harmless implementation tweaks.

Making the GNSO irrelevant

So perhaps ICANN leadership should be given the benefit of the doubt. Clearly Chehadé is trying to balance the (legitimate) needs of the IP community to defend their existing rights with the (necessary) requirement to uphold the multi stakeholder policy development model.

But then the ICANN Board took another swipe at the model.

It decided to provide specific protection for the International Olympic Committee (IOC), the Red Cross (RC), and other Intergovernmental Organisations (IGOs) in the new gTLD program. This means that gTLD registries will have to add lengthy lists of protected terms to the “exclusion zone” of domain names that cannot be registered in their TLDs.

RPMs and the IOC/RC and IGO processes have all been worked on by the Generic Names Supporting Organisation (GNSO). ICANN’s policy making body for gTLDs groups together all interested parties, from internet users to registries, in a true multi-stakeholder environment.

It is the epitome of the ICANN model: rule-based, hard to understand, at times slow or indecisive, so reliant on pro-bono volunteer commitment that crucial details are sometimes overlooked… But ultimately fair: everyone has a say in the final decision, not just those with the most money or the loudest voice.

The original new gTLD program policy came from the GNSO. The program’s RPMs were then worked on for months by GNSO groups. The GNSO currently has a group working on the IOC/RC issue and is starting work on IGO policy development.

But neither Chehadé, in the TMCH situation, or the Board with the IOC/RC and IGO protections, can be bothered to wait.

So they’ve waded in, making what look very much like top-down decisions, and defending them with a soupcon of hypocrisy by saying it’s for the common good. Yet on the very day the GNSO Chair was writing to the Board to provide an update on the GNSO’s IOC/RC/IGO related work, the Board’s new gTLD committee was passing resolutions side-stepping that work.

The next day, on November 27, 2012, new gTLD committee Chair Cherine Chalaby wrote:

The Committee’s 26 November 2012 resolution is consistent with its 13 September 2012 resolution and approves temporary restrictions in the first round of new gTLDs for registration of RCRC and IOC names at the second level which will be in place until such a time as a policy is adopted that may required further action on the part of the Board.

Continuing on the same line, Chalaby added:

The second resolution provides for interim protection of names which qualify for .int registration and, for IGOs which request such special protection from ICANN by 28 February 2013. (…) The Committee adopted both resolutions at this time in deference to geopolitical concerns and specific GAC advice, to reassure the impacted stakeholders in the community, acknowledge and encourage the continuing work of the GNSO Council, and take an action consistent with its 13 September 2012 resolution.

A soothing “sleep on” message to both the community and the GNSO that the bottom-up policy development process is safe and sound, as long as no-one minds ICANN leadership cutting across it and making the crucial decisions.

Red alert!

Chehadé’s drive to get personally involved and help solve issues is paved with good intentions. In the real world, i.e. the one most of us live and work in, a hands-on approach by the boss generally has few downsides. But in the ICANN microverse, it is fraught with danger.

So is the Board deciding that it knows better than its community and cannot afford to wait for them to “get it”?

These latest episodes should have alarm bells ringing on the executive floor of ICANN Towers.

ICANN only works if it is truly about all interested parties getting together and working through due process to reach consensus decisions. Yes, this process is sometimes lengthy and extremely frustrating. But it is what sets ICANN apart from other governance organisations and make it so well suited to the internet’s warp-speed evolution.

Turn your back on it, act like there are valid circumstances which call for this ideology to be pushed aside, and you may as well hand the technical coordination of the internet’s naming and numbering system to the UN. Simple as that.

This is a guest post written by Stéphane Van Gelder, strategy director for NetNames. He has served as chair of the GNSO Council and is currently a member of ICANN’s Nominating Committee.