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Economist would sue ICANN if it publishes private emails

Kevin Murphy, February 14, 2018, Domain Policy

The Economist Intelligence Unit has threatened to sue ICANN if it publishes emails related to its evaluations of “community” gTLDs.

That’s according to a document published by ICANN this week, in which the organization refused to reveal any more information about a controversial probe into the Community Priority Evaluations the EIU conducted on its behalf.

EIU “threatened litigation” should ICANN publish emails sent between the two parties, the document states.

New gTLD applicant DotMusic, which failed its CPE for .music but years later continues to fight for the decision to be overturned, filed a Documentary Information Disclosure Policy request with ICANN a month ago.

DIDP is ICANN’s equivalent of a Freedom of Information Act.

DotMusic’s request among many other items sought the release of over 100,000 emails, many sent between ICANN and the EIU, that ICANN had provided to FTI Consulting during FTI’s investigation into whether the CPEs were fair, consistent and absent ICANN meddling.

But in its response this week, ICANN pointed out that its contract with EIU, its “CPE Provider”, has confidentiality clauses:

ICANN organization endeavored to obtain consent from the CPE Provider to disclose certain information relating to the CPE Process Review, but the CPE Provider has not agreed to ICANN organization’s request, and has threatened litigation should ICANN organization breach its contractual confidentiality obligations. ICANN organization’s contractual commitments must be weighed against its other commitments, including transparency. The commitment to transparency does not outweigh all other commitments to require ICANN organization to breach its contract with the CPE Provider.

DotMusic’s DIDP sought the release of 19 batches of information, which it hopes would bolster its case that both the EIU’s original reviews and FTI’s subsequent investigation were flawed, but all requests were denied by ICANN on various grounds.

In more than one instance, ICANN claims attorney-client privilege under California law, as it was actually ICANN’s longstanding law firm Jones Day, rather than ICANN itself, that contracted with FTI.

The FTI report cleared ICANN of all impropriety and said the EIU’s CPE process had been consistent across each of the gTLD applications it looked at.

The full DIDP request and response can be found here.

ICANN has yet to make a decision on .music, along with .gay, .hotel, .cpa, and .merck, all of which were affected by the CPE reviews.

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Hundreds of words and acronyms banned from .au, domains frozen

Kevin Murphy, February 8, 2018, Domain Policy

auDA has added hundreds of words, phrases and acronyms to its list of strings that are banned in .au and locked domains containing those strings.

There were only about 40 strings on the old banned list; now it’s closer to 300.

auDA has added to the list the names of brands protected by direct legislation, such as “Australian Motorcycle Grand Prix” and “Australian Defence Force Reserves”.

Also, phrases such as “What a Great Place for the Great Race” and “Commonwealth games Bronze”.

But what will be most concerning for non-cybersquatter .au registrants will be the acronyms and dictionary words that have been added.

These include the word “university” and acronyms such as “ran”, “adi” and “ara”, which could quite easily appear as substrings of legitimate words such as “grandma”, “radio” and “karate”.

Registrants of domains that exactly match the newly banned strings will find themselves unable to renew those domains, according to an auDA FAQ:

All words, phrases or acronyms on the list at Schedule A have been blocked from registration at the Registry. If you believe that you should be able to renew the domain name, you will need to demonstrate to your Registrar and auDA that you have Ministerial consent to use the domain name or your use of the domain name does not attract the restriction.

If there’s only a partial, substring match, registrants won’t be able to transfer the domain to a different registrant, according to the FAQ:

auDA has placed a lock on domain names that contain words, phrases or acronyms which appear on the list in Schedule A to prevent the transfer of these names to third parties. auDA will remove the lock where registrants can provide the requisite consent, or demonstrate that the use of the domain name does not attract the restriction.

The list was expanded following an auDA policy review that looked at what words are protected under Australian legislation.

The review itself acknowledged that the banned list is a bit of a blunt instrument, as in many cases it’s not the string that is banned but rather the use of the string.

Presumably, if you own “karate.com.au” it will be fairly straightforward to show you’re not infringing the rights of the Australian Regular Army.

The registry’s advice to registrants who believe their names are affected is to lawyer up:

Registrants are encouraged to check whether their domain name/s contain any words, abbreviations, acronyms or phrases appearing on the Schedule. If a name appears on the Schedule, registrants should seek independent legal advice on appropriate action. auDA cannot provide legal advice.

The new list of banned words can be found here. I’ve taken a screen capture of the old list from Google’s cache of January 20, here.

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Full $185,000 refunds offered to risky new gTLD applicants

Kevin Murphy, February 8, 2018, Domain Policy

ICANN is to offer applicants for three new gTLDs identified as too risky to go live full refunds of their application fees.

Its board of directors acknowledged at its weekend retreat that it has no intention of delegating .corp, .home and .mail, and that each applicant should be able to get their entire $185,000 application fee back.

The applicants will have to withdraw their applications in order to get the refund.

Ordinarily, withdrawing an application would only qualify the applicants for a partial refund.

The ICANN board said in its resolution that it “does not intend to delegate the strings .CORP, .HOME, and .MAIL in the 2012 round of the New gTLD Program”.

It added that “the applicants were not aware before the application window that the strings .CORP, .HOME, and .MAIL would be identified as high-risk, and that the delegations of such high-risk strings would be deferred indefinitely.”

The three strings are considered risky because they already receive vast amounts of “name collision” traffic, largely from DNS queries that leak out from private networks.

There’s a concern that delegating any of them would create a big security risk in terms of confidential data leakage and stuff just generally breaking.

It’s been six years since the last new gTLD application window was open, and some applicants for the strings abandoned their bids years ago.

There are five remaining .corp applicants (and one withdrawal), five for .mail (two withdrawals) and ten for .home (one withdrawal).

The refunds will be taken from ICANN’s separate new gTLD program budget so presumably will not have an impact on its current operating budget woes.

The board noted that technically it did not have to give full refunds, under the terms of the Applicant Guidebook, but that it was doing so in the interest of “fairness”.

This may come as little comfort to applicants whose money has been tied up in limbo for the last six years.

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Famous Four chair pumps $5.4 million into AlpNames to settle COO lawsuit

Kevin Murphy, February 8, 2018, Domain Registrars

Famous Four Media chair Iain Roache has bought out his former COO’s stake in AlpNames, its affiliated registrar, settling a lawsuit between the two men.

He’s acquired Charles Melvin’s 20% stake in the company for £3.9 million ($5.4 million), according to a press release.

A spokesperson confirmed that the deal settles a lawsuit in the companies’ home territory of Gibraltar, which we reported on in December.

Roache said in the press release that he has a plan to grow AlpNames into a “Tier 1 registrar”:

“I’ve got a 10 year strategic plan, which includes significant additional investment, to set the business up for future growth and success,” he said. “We’re going to bring the competition to the incumbents!”

AlpNames is basically the registrar arm of Famous Four, over the last few years supporting the gTLD portfolio registry’s strategy of selling domains in the sub-$1 range and racking up huge market share as a result.

But it’s on a bit of a slide, volume-wise, right now, as hundreds of thousands of junk domains are allowed to expire.

According to today’s press release, AlpNames has 794,000 gTLD domains under management. That’s a far cry from its peak of 3.1 million just under a year ago.

Seller Melvin, according to the press release, “has decided to pursue other interests outside of the domain name industry”.

It appears he left his COO job at Famous Four some time last year, and then sued Roache and CEO Geir Rasmussen (also an AlpNames investor) over a financial matter. Previous attempts to buy him out were rebuffed.

Last October, the Gibraltar court ruled that the defendants has supplied the court with “forged documents” in the form of inaccurately dated invoices between the registry and AlpNames.

The pair insisted to the court that the documents were an honest mistake and their lawyer told DI that there was no “forgery” in the usual sense of the word.

But it appears that Melvin’s split from the companies was less than friendly and the £3.9 million buyout should probably be viewed in that light.

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Why are you doing that Whois search? DENIC wants to know

Kevin Murphy, February 6, 2018, Domain Registries

In a taste of what might be coming under EU privacy legislation, DENIC wants you to jump through some new hoops before it lets you see Whois data.

When doing a Whois query on its web site today, the German ccTLD registry first asks you to answer the question: “How do you justify your legitimate interest in accessing the whois data?”

It’s a multiple-choice question, with an extra field for typing in your reasons for doing the query.

Possible answers include “because you think that the use of the domain raises a legal problem”, which appears to be for trademark lawyers, and “because you want to collect information about the domain holder for business purposes”, which appears to be for domainers.

Denic whois

There’s no wrong answer that will deny you access to the Whois record you want to see, but users are warned that their use of Whois data is only to be for “legitimate purposes”, under pain of legal action.

A DENIC spokesperson told DI that the new system was introduced today “for statistical reasons”

“Its aim is just to get a better idea of the DENIC whois usage pattern and of the extent to which different user groups are utilising the extended service,” she said.

The move should be viewed in the context of the incoming General Data Protection Regulation, an EU privacy law that becomes fully implemented in May this year.

While there’s been a lot of focus on how this will effect ICANN and its harem of contracted gTLDs, it’s easy to forget that it affects ccTLDs just as much.

By conducting this mandatory survey of real Whois users, DENIC will presumably be able to gather some useful data that will inform how it stays GDPR-compliant after May.

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