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Would an ICANN ethics policy break the law?

Kevin Murphy, October 3, 2011, Domain Policy

Calls for a new ethics policy to prevent a “revolving door” between ICANN and the domain name industry stepped up today, with the Association of National Advertisers entering the debate.

But would such a policy be illegal in ICANN’s home state of California?

The ANA and others wrote to ICANN today, in response to a public comment period on the question of whether ICANN should revise its conflicts of interest policy.

ICANN had asked whether the policy should be changed in order to let its board of directors vote to give themselves a salary. They’re currently all unpaid except the chair.

But the responses so far have instead largely focused on the perceived need to stop directors (and to a lesser extent staff) from taking lucrative industry jobs after they quit.

That was perhaps inevitable given the recent mainstream media coverage of former ICANN chair Peter Dengate Thrush, who took a high-paying job with new gTLD applicant Minds + Machines just a few weeks after helping to push through approval of the gTLD program.

The ANA’s president, Bob Liodice, wrote:

There is, at a minimum, legitimate reason for concern that the lack of adequate conflict of interest policies have led to the development of a growing perception that Mr. Thrush (and perhaps other senior staff who recently have left ICANN) may have let future career prospects influence their official duties.

(The other senior staffer he refers to could only be Craig Schwartz, the former chief gTLD registry liaison, who quit ICANN to join a likely .bank applicant in June.

While there are good reasons that Dengate Thrush’s move looks extremely fishy to outsiders, I’ve yet to hear any compelling arguments that Schwartz, who I don’t think had any high-level policy-making power anyway, did anything wrong.)

The ANA is of course the ring-leader of the ongoing campaign to get ICANN to rethink the new gTLD program in its entirety.

Liodice’s letter goes on to outline a number of suggestions, posed as questions, as to how ICANN could improve its conflict of interest policy, such as:

should ICANN consider reasonable restrictions or a moratorium on post‐service employment of ICANN staff by, or the contracting of such staff members with, parties under contract to ICANN, or whose businesses are materially affected by any decision made by the Board during the staff member’s tenure?

In other words: should ICANN staff be banned from joining registrars and registries after they leave?

In two other letters to ICANN today, Coalition for Online Accountability, International Trademark Association and American IP Law Association (collectively) and the French government make similar calls for future employment restrictions, albeit only for ICANN directors rather than staff.

But here’s another question: if the community asked ICANN to institute a revolving-door prevention policy, could it legally do so? A bit of digging suggests it might be tough.

According to the minutes of an August 15 meeting of ICANN’s Board Governance Committee:

The BGC discussed that as a private sector organization, ICANN is limited in its ability to place restrictions on future employment, though there are many things that ICANN can do to address these concerns, such as continued strict adherence and enforcement of confidentiality provisions.

The matter was also discussed by the full board at its retreat last month, and is on the agenda for the public meeting in Dakar, Senegal, at the end of October.

While ICANN does have pseudo-regulatory power (all enforced through contract) it is at the end of the day a California corporation, which is bound by California law.

And in California, it may not be legal to unreasonably restrict employees’ future job opportunities.

I’m not a lawyer, and this may not be applicable to ICANN for any number of reasons, but consider how California law deals with so-called “non-compete clauses” in employment contracts.

The text “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void” is on the California statute books.

And in 2008, the California Supreme Court interpreted this rather strictly, ruling that “non-competition agreements are invalid under section 16600 in California even if narrowly drawn”.

So could ICANN legally prevent staff or directors from jumping into the for-profit sector when they please? Is there any point in the community even debating the subject?

At this point, any members of the California Bar reading this are welcome to throw their $0.02 into the comments section below.

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US and EU could see power diluted in ICANN

Kevin Murphy, October 1, 2011, Domain Policy

A proposed shakeup of how ICANN divides the world into geographic regions could shift power away from US and European Union citizens.

Working group recommendations just finalized after over two years of discussion would see dozens of countries join the European and North American regions.

If adopted by ICANN, the proposals could potentially reduce the number of Western European and American faces on the ICANN board of directors.

ICANN currently recognizes five regions: North America, Latin America/Caribbean, Europe, Africa and Asia/Pacific. Under its bylaws, each region needs to have at least one seat on the board, and no region may have more than five.

After two years of deliberations, the volunteer Geographic Regions Review Working Group has now recommended that the five regions stay, but that many countries should be shuffled between regions to more accurately describe their location.

The North America group currently comprises just the US and Canada, along with a small number of US overseas territories. Mexico inexplicably counts as Latin America.

If the working group’s proposals are adopted, North America would lose territories such as Guam and American Samoa and gain more than 20 Caribbean and North Atlantic island nations, such as Jamaica, Barbados and the Cayman Islands.

The net result of this would be that when new ICANN directors are selected, the North American pool of candidates could be much more geographically and culturally diverse.

Europe’s boundaries would also be redrawn to encompass nations in the Middle East, which are currently assigned to the Asia/Pacific group.

Nations such as Iran, Saudi Arabia and Israel would join Europe, as would former Soviet states such as Georgia, Tajikistan and Armenia. In total, Europe would get 24 new countries.

Some former colonial territories currently assigned to Europe due to their political heritage rather than their actual location would be shuffled into a more geographically appropriate region.

The British-owned Falklands would move to Latin America, for example, while French Polynesia and the British Indian Ocean Territory would join the Asia/Pacific region.

Again, a result of this reshuffle is that a region currently dominated by EU and other Western European states would have to be shared by a more diverse group of stakeholders.

Many of the moves make a lot of sense. In the current set-up, for example, the largely Greek-speaking EU nation Cyprus is in the same “geographic region” as Australia, some 9,000 miles away.

The new borders have been recommended to match the way the regions are currently handled by the five Regional Internet Registries, which allocate IP addresses to network operators.

The working group, in deciding to use the RIRs’ jurisdiction as a baseline, wrote in its report (pdf):

Fundamentally, ICANN is a technical organization and so aligning regions with the technical “infrastructure” of the numbering resource allocation system seems logical and defensible.

If adopted without modification, a total of 62 countries and territories would move to new regions, but many of these are the result of assigning territories to their geographic region rather than to the region of their mother country

The decision to stick at five regions will come as a blow to Arab states and some island nations, which had lobbied for new regions to be created to reflect their interests.

The working group has also recommended that any country or territory that wants to stick with its existing region is entitled to do so, but that once they do they’re locked into that decision for 10 years.

ICANN has opened the proposals to a longer-than-usual period of public comment, starting today and ending December 19, presumably in order to give the Governmental Advisory Committee and its members plenty of time to prepare reactions.

It seems unlikely we’ll see any formal adoption of the recommendations before the Costa Rica ICANN meeting in March 2012 at the earliest.

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First video of ICANN’s new gTLDs outreach

Kevin Murphy, September 30, 2011, Domain Policy

Here’s what I believe is the first publicly available video from ICANN’s ongoing new top-level domains marketing road-trip, which kicked off earlier this month.

CEO Rod Beckstrom, along with a small entourage of ICANN staffers, attended a breakfast panel discussion of new gTLDs at the London offices of PR company Edelman on September 20.

Also on the panel, moderated by Edelman’s Jonathan Hargreaves, were: Lesley Cowley, CEO of .uk registry Nominet; Lorna Gradden, director of brand-focused registrar Com Laude; and me.

There were roughly 75 people in the audience, which I’ve heard is somewhat more than showed up to similar ICANN panels in Berlin and Paris later in the week.

I know from conversations after the camera stopped rolling that a decent number of attendees were from outside the domain name industry – potential applicants – but the questions you’ll hear on the video pretty much all come from those with a closer interest in the new gTLD program.

As I’ve been reporting, ICANN is taking a softly-softly approach to outreach, saying it’s trying to “educate not advocate”, which is also evident in this video.

My main takeaway – and the story I would have written had I been in the audience taking notes rather than on the panel not – is that some of the recommendations of the JAS working group on new gTLD developing-world applicant support appear to be stillborn.

In the meantime, here’s all 68 minutes of the video.

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Even without Al Gore, don’t count Minds + Machines out of the .eco race

Kevin Murphy, September 29, 2011, Domain Registries

Minds + Machines may have lost the support of Al Gore for its .eco bid, but it should not necessarily be dismissed as a contender for the .eco top-level domain.

The Guardian today reported that the former US vice president’s Alliance for Climate Protection campaign has dropped its support for the M+M-backed Dot Eco LLC .eco bid.

It noted that the other public .eco applicant, Big Room, is backed by former Russian premier Mikhail Gorbachev, and it made some tenuous Cold War allusions accordingly:

The global power struggle, with echoes of the cold war, is over control of the new .eco internet domain which could be up and running by 2013.

But the Guardian has learned that Gore’s group has quietly dropped its plan, leaving the door open for Big Room to act as the registry for the new domain.

The reality is of course not quite as exciting, at least not to a general readership. Big Room in fact quickly distanced itself from the hyperbole in a blog post today.

Gore’s group did in fact stop supporting M+M’s .eco bid earlier this year. The site previously dedicated to the project, SupportDotEco.com, went dark for a while before being redirected to M+M in June.

It seems that the once-public M+M .eco project may now be a regular will-they-won’t-they bid.

So while The Guardian fairly reported that Gore is no longer in the running for .eco, that does not necessarily mean Big Room is a shoo-in either.

As I’ve previously commented, publicly announcing a gTLD application means absolutely nothing.

Big Room may secure .eco. M+M may. Any one of a number of potential candidates could win the contract.

Big Room, which has secured support from many organizations in the environmental community, intends to file its bid with as a self-designated “community” application.

Such a designation can enable applicants for contested gTLDs to avoid an auction, if they can score 14 out of a possible 16 points against the very strict criteria set by ICANN.

Big Room has spent a great deal of time building up support and setting proposed policies governing how .eco will be managed. It has some potentially innovative ideas about how to promote corporate responsibility using domain names.

“I hope people don’t try to hold the community hostage about this, I think our community been very transparent about their intentions,” said Big Room co-founder Trevor Bowden. “If this thing goes to auction, this community has no voice whatever. If they have no voice then the potential of .eco will be diminished.”

Minds + Machines, on the other hand, is on-record saying that it does not believe that .eco could possibly qualify as a community bid.

In July, CEO Antony Van Couvering published a piece on CircleID estimating that, with just nine points out of the 14 required to pass a Community Priority Evaluation, it would not.

It seems that “community” backing, even from an environmentalist as high-profile as Al Gore, may not be part of the M+M .eco application strategy.

With M+M parent Top Level Domain Holdings funded sufficiently to apply for gTLDs into double figures, I would not be at all surprised if .eco is among its target strings.

UPDATE (30/9/11): TLDH has confirmed that Dot Eco LLC will apply for .eco. The characteristically blunt press release also has a few choice words about gTLD applications backed by “celebrities”.

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German toilet provider has Best. Domain. Ever.

Kevin Murphy, September 29, 2011, Gossip

A few of us attending the newdomains.org conference in Munich this week spotted what is possibly the most inadvertently funny domain name in the history of the internet.

We found this advertised in the men’s room at Oktoberfest:

ass-container.de

It would be funny enough merely seeing that domain on a poster in a public toilet, but what makes it perfect is that the company it advertised, ASS GmbH, is in the business of providing portable toilets for large events.

Mike Berkens of TheDomains has photographic evidence of the poster itself (I don’t usually take a camera to the toilet with me) but in the absence of that photo, here’s a capture from the firm’s site.

Ass Container

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