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Cops seize 132 domains in Cyber Monday crackdown

Kevin Murphy, November 26, 2012, Domain Policy

Law enforcement agencies in the US and Europe have shut down 132 domain names in order to stop the selling of counterfeit merchandise online.

According to the US Immigration and Customs Enforcement agency, the now-annual Cyber Monday crackdown included domain names in the .eu, .be, .dk, .fr, .ro and .uk ccTLDs.

Law enforcement from those countries were involved, via Europol, in their respective local seizures, while ICE nabbed 101 domains in generic TLDs whose registries are based in the US.

One person was also arrested, and ICE plans to seize $175,000 in ill-gotten gains sent to a PayPal account connected with the sites.

It’s the third year in a row that ICE has led an operation of this kind before “Cyber Monday”, which in recent years has become the most popular day of the year for e-commerce deals.

The operation started when ICE and Europol “received leads from various trademark holders regarding the infringing websites”, ICE said in a press release.

ICANN may have got lucky with a URS vendor

Kevin Murphy, November 25, 2012, Domain Policy

ICANN may have found a vendor willing to provide Uniform Rapid Suspension services for new gTLDs at $500 or less per case, without having to rewrite the policy to do so.

Last month, Olof Nordling, director of services relations at ICANN, gave the GNSO Council a heads-up that the URS policy may have to be tweaked if ICANN were to hit its fee targets.

But last week, following the receipt of several responses to a URS vendor Request For Information, Nordling seems to have retracted the request.

In a message to Council chair Jonathan Robinson, he wrote:

The deadline for responses to the URS RFI has passed and I’m happy to inform you that we have received several responses which we are now evaluating. Moreover, my first impression is that the situation looks quite promising, both in terms of adherence to the URS text and regarding the target fee. This also means that there is less of an urgency than I previously thought to convene a drafting team (and I’m glad to have been proven wrong in that regard!). There may still be details where such a drafting team can provide useful guidance and I will get back to you with further updates on this and other URS matters as we advance with the evaluations.

The target fee for URS has always been $300 to $500 per case, between a fifth and a third of the fee UDRP providers charge.

Following an initial, private consultation with UDRP providers WIPO and the the National Arbitration Forum, ICANN concluded that that it would miss that target unless the URS was simplified.

But some GNSO members called for a formal, open RFP, in order to figure out just how good a price vendors were willing to offer when they were faced with actual competition.

It seems to have worked.

During a session on URS at the Toronto meeting last month, incumbents WIPO and NAF were joined by a new would-be arbitration forum going by the name of Intersponsive.

Represented by IP lawyers Paul McGrady and Brad Bertoglio, the new company claimed it would be able to hit the price target due to software and process efficiencies.

NAF also said it would be able to hit targets for most URS cases, but pointed out that the poorly-described policy would create complex edge cases that would be more expensive to handle.

WIPO, for its part, said a cheaper URS would only be possible if registrants automatically lost the cases if they failed to respond to complaints.

This angered big domainers represented by the Internet Commerce Association and free speech advocates in the GNSO, who feared a simpler URS meant fewer registrant rights.

It’s not yet known which vendors are in with a shot of winning the URS contract, but if ICANN has found a reasonably priced provider, that would be pretty good news for registrants and IP owners.

GAC Early Warnings confirmed for today. Here’s what I expect to see

Kevin Murphy, November 20, 2012, Domain Policy

ICANN’s Governmental Advisory Committee is ready to send out its Early Warnings on new gTLD applications today as scheduled, ICANN has confirmed.

The Early Warnings, which highlight applications that individual GAC members have problems with, are expected to be sent by the GAC to applicants and published by ICANN later.

Because the warnings are expected to be issued by individual governments, rather than the GAC as a whole, we could wind up seeing hundreds, due to multiple governments objecting to the same applications.

However, some governments may have decided to be conservative for precisely the same reason.

Governments won’t be able to hide behind the cloak of “GAC Advice”, as they did when .xxx was up for approval last year; the names of the governments will be on the warnings.

That’s not to say there won’t necessarily be safety in numbers. It’s possible that some warnings will be explicitly supported by multiple governments, potentially complicating applicant responses.

But which countries will provide warnings?

I’d be surprised if the US, as arguably the most vocal GAC player, does not issue some. Likewise, the regulation-happy European Commission could be a key objector.

It’s also my understanding that Australia has a raft of concerns about various applications, and has been leading much of the back-room discussion among GAC members.

Going out on a limb slightly, I’m expecting to see the warnings from Western nations concentrating largely on regulated industries, IP protection and defensive registrations.

We’re likely to see warnings about .bank and .sucks, for examples, from these governments. To a certain extent, any non-Community applications that could be seen as representing an industry could be at risk.

On the “morality” front, indications from ICANN’s public comment period are that Saudi Arabia has a great many problems with strings that represent religious concepts, and with strings that appear to endorse behavior inconsistent with Islamic law, such as alcohol and gambling.

But last time I checked Saudi Arabia was not a member of the GAC. It remains to be seen whether similar concerns will be raised by other governments that are members.

The one Early Warning we can guarantee to emerge is against .patagonia, the application from a US clothing retailer that shares its name with a region of South America.

The Argentinian government has explicitly said it will issue a warning against this bid, and I expect it to garner significant support from other GAC members.

The GAC Early Warnings stand to cause significant headaches for applicants, many of which are gearing up for a four-day US Thanksgiving weekend.

After receiving a warning, applicants have just 21 days to decide whether to withdraw their bid — receiving an 80% refund of their $185,000 application fee — or risk a formal GAC Advice objection next year.

But that’s not even half of the problem.

The GAC has indicated that it wants to be able to, effectively, negotiate with new gTLD applicants over the details of their applications after issuing its warnings.

At the Toronto meeting last month, the GAC asked ICANN to explain:

the extent to which applicants will be able to modify their applications as a result of early warnings.

[and]

how ICANN will ensure that any commitments made by applicants, in their applications or as a result of any subsequent changes, will be overseen and enforced by ICANN.

ICANN has not yet responded to these inquiries and it does not expect to do so until Thursday.

The fact is that ICANN has for a long time said that it does not intend to allow any applicant to make any material changes to their applications after submission. This was to avoid gaming.

It has since relaxed that view somewhat, by introducing a change request mechanism that has so far processed about 30 changes, some of which (such as .dotafrica and .banque) were highly material.

Whether ICANN will extend this process to allow applicants to significantly alter their applications in order to calm the fears of governments remains to be seen.

Whatever happens this even, many new gTLD applicants are entering unknown territory.

ICANN asks: just what the hell is Whois for anyway?

Kevin Murphy, November 19, 2012, Domain Policy

It’s back to basics time at ICANN, with the launch today of a massive effort to take a fresh look at Whois.

This could be a biggie.

“We’re going to go back to the fundamentals and ask: what problems are being addressed by Whois, who’s using it and what are they using it for?” ICANN chair Steve Crocker told DI.

The ICANN board of directors earlier this month passed a resolution, published today, that calls for:

a new effort to redefine the purpose of collecting, maintaining and providing access to gTLD registration data, and consider safeguards for protecting data, as a foundation for new gTLD policy and contractual negotiations

This is bare-bones, fundamental stuff, likely to encompass pretty much every controversial issue to hit Whois over the years.

Crocker noted that the use of Whois, originally designed to help people locate the operators of large multi-user computing services, has changed over the years.

Is Whois now there to help law enforcement track down crooks? Is it there to help intellectual property owners enforce their rights? Should it help domainers verify who they’re transacting with?

Should published Whois records always be complete and accurate? Is there a right to privacy in Whois?

These are the some of the big questions that ICANN has tried and failed to grapple with over the last decade, and Crocker said that now is the time to answer them.

“My own feeling is that this must not suffer from the endless delays it has in the past, but at the same time it’s essential that we get it right rather than get it done quickly,” he said.

The new board resolution didn’t appear of thin air, however.

It’s a response to the recommendations of the Whois Policy Review Team, which earlier this year called for ICANN to make a Whois a strategic priority.

The review team itself was set up to comply with ICANN’s Affirmation of Commitments with the US Department of Commerce, one of ICANN’s core documents and part of the basis of its legitimacy.

But the AoC may presuppose certain outcomes of any root-and-branch Whois reform, calling as it does for a Whois policy that “meets the legitimate needs of law enforcement and promotes consumer trust”.

Crocker said that doesn’t necessarily rule out a big rethink about the way Whois data is accessed.

“Today, all of the information in Whois is published for the public,” he said. “Anyone can get at it, it doesn’t matter if you’re competitor or friend or law enforcement, you can get access.”

“A point of discussion could be: would it make sense to make different levels of access to information available to different people?” he added.

As an analogy, he pointed to car license plates. If you’re a cop and you see a suspicious vehicle you can trace the owner, but if you’ve just taken a fancy to the driver it’s harder to get their number.

Crocker noted that he’s not presupposing any outcomes of the review.

As well as calling for the review, the board’s latest resolution also calls for existing Whois rules, such as they are, to continue to be strictly adhered to. The resolution:

directs the CEO to continue to fully enforce existing consensus policy and contractual conditions relating to the collection, access and accuracy of gTLD registration data

This second prong of the approach is no doubt designed in part to remind contracted parties that just because Whois is open for review it doesn’t mean they can start ignoring compliance notices.

However, it’s going to be interesting to see how Whois reform plays into open discussions such as the renegotiation of the Registrar Accreditation Agreement.

The big stumbling blocks in the RAA talks right now relate directly to Whois verification, so registrars might be able to start arguing that agreeing to ICANN’s demands might preempt the review.

But Crocker doesn’t think that should happen.

“An examination of the fundamentals of Whois should not serve as as way of stalling or pulling back on the current system,” he said.

It’s not entirely clear what the next steps are for the Whois review.

There will be a board-mandated GNSO Policy Development Process somewhere down the line, but not until CEO Fadi Chehade has conducted some kind of outreach and information-gathering, it seems.

How long this will take is not known, but I get the impression the board wants to move relatively quickly. The PDP, I would guess, will take a couple of years at least.

Chehade said in his opening address during the Toronto meeting last month that long-standing disagreements over the purpose of Whois should be relatively “easy” to resolve.

Let’s see if he’s correct. I wouldn’t put money on it.

Why is ICANN’s Ombudsman trying to take down a drink-drive mugshot?

Kevin Murphy, November 19, 2012, Domain Policy

Apparently there wasn’t already enough confusion about ICANN’s role in internet governance.

ICANN’s independent Ombudsman, Chris LaHatte, seems to be getting involved in content-related arguments between netizens and web site operators, according to a new case report posted on his blog.

LaHatte recently received a complaint from an internet user about the web site Busted Mugshots, a search engine for US criminal records.

The complainant was a professional who in his younger days had been pulled over for drink-driving and photographed by police, but never charged or convicted of any offense.

Busted Mugshots had apparently tried to charge him a fee and demanded to see non-existent court acquittal documents in order to remove his photograph from the site.

I’m assuming the individual in question complained to the Ombudsman because he has no idea what powers ICANN has or what the ICANN Ombudsman’s role is.

ICANN, for avoidance of doubt, has no powers over the content of web sites, and the Ombudsman’s job is to investigate complaints about ICANN’s actions or decisions.

Yet LaHatte, perplexingly, got involved anyway.

According to his case notes he contacted Busted Mugshots to point out that it was very unfair to keep the complainant’s photo up, but met with the same response as the complainant.

I’ve no doubt that LaHatte’s heart was in the right place here, and he says he pointed out at all times that he has no jurisdiction over web content, but I can’t help but worry that this doesn’t help ICANN’s image.

You only need to lurk on a Twitter search for “icann” for a day or two — or read some non-industry media coverage for that matter — to know that lots of people out there don’t know what ICANN does.

Many regular internet users mistakenly believe the organization is the internet’s government or police force, and ICANN has done a pretty poor job over the years of correcting misconceptions.

While I’m sure no one would challenge LaHatte’s right to complain about the contents of web sites as a private citizen, I don’t think the Ombudsman should be seen to be involving himself in this kind of dispute.