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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.

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Straw man proposed to settle trademark deadlock at secretive ICANN meeting

Kevin Murphy, November 19, 2012, Domain Policy

Trademark interests seem to have scored significant concessions in their ongoing battle for stronger rights protection mechanisms in new gTLDs, following a second closed-doors ICANN meeting.

Following a two-day discussion of the Trademark Clearinghouse in Los Angeles late last week, ICANN CEO Fadi Chehade has published a “straw man” proposal for further discussions.

The straw man — if it is ultimately adopted — would grant the Intellectual Property Constituency and Business Constituency some of the things they recently asked for.

Crucially, they’d get the right to add keywords to the trademarks they list in the Trademark Clearinghouse, making them eligible for the Trademark Claims service.

There would be a test — a UDRP or court win concerning the string in question — for inclusion, and a limit of 50 brand+keywords or misspellings per trademark in the Clearinghouse.

The idea here is to help brand owners quickly respond to the registration of — but not preemptively block — domains such as “brand-industry.tld” or “brand-password-reset.tld”.

The Trademark Claims service would be extended from 60 to 90 days, under the straw man model.

Chehade’s blog post also outlines a “Claims 2” process that would run for six to 12 months after the launch of each new gTLD and would require trademark owners to pay an additional fee.

This Claims 2 service would not necessarily give registrants the same information about trademarks related to the domains they want to registry. Why not is anyone’s guess.

Here’s how Chehade described it:

Rights holders will have the option to pay an additional fee for inclusion of a Clearinghouse record in a “Claims 2″ service where, for an additional 6-12 months, anyone attempting to register a domain name matching the record would be shown a Claims notice indicating that the name matches a record in the Clearinghouse (but not necessarily displaying the actual Claims data). This notice will also provide a description of the rights and responsibilities of the registrant and will incorporate a form of educational add-on to help propagate information on the role of trademarks and develop more informed consumers in the registration process.

I’ve long been of the opinion that Trademark Claims service will not prevent most cybersquatting (determined bad actors will click through the notices as easily as you or I click through a software license agreement) and “Claims 2” appears to be a diluted version of the same lip service.

Claims 2 and the extension of the Clearinghouse to brand+keyword strings appears to be a step in the right direction for trademark owners, but I can’t see the changes substantially reducing their costs.

There’s also already opposition to the ideas from the Non-Commercial Stakeholders Group, according to this analysis of the straw man from NCSG chair Robin Gross.

The LA meeting rejected the notion of a preemptive cross-TLD trademark block list along the lines of the ICM Registry’s Sunrise B for .xxx, which is among the IPC/BC proposals.

The only change to Sunrise proposed in the straw man model is a mandatory 30-day notice period before the mandatory 30-day Sunrise kicks off, to give brand owners time to prepare.

In summary, the straw man proposal appears to create some marginal benefit for trademark owners at the expense of some additional cost and complexity for registries and registrars.

It would also create an entirely new rights protection mechanism — Claims 2 — out of whole cloth.

While no firm decisions appear to have been made in LA, it’s impossible for us to know for sure what went down because the meeting was held behind closed doors.

ICANN even enforced a Twitter ban, according to some attendees.

The meeting was the second private, invitation-only TMCH discussion in recent weeks.

While we understand there were remote participation opportunities for invited guests unable to attend in person, there was no opportunity to passively listen in to the call.

DI was told by ICANN there was no way for us to follow the talks remotely.

According to a number of attendees on Twitter, participants were also asked by ICANN not to tweet about the substance of the discussions, after complaints from trademark interests present.

The same attendees said that ICANN plans to publish a transcript of the meeting, but this has not yet appeared.

Considering that the issues under discussion will help to shape the structure of the domain name industry for many years to come, the lack of transparency on display is utterly baffling.

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Pritz’s conflict of interest was with ARI

Kevin Murphy, November 18, 2012, Domain Registries

Former ICANN chief strategy officer Kurt Pritz had a conflict of interest related to back-end registry provider ARI Registry Services, DI can reveal.

Pritz resigned last week after disclosing the potential conflict to CEO Fadi Chehade, leading to a great deal of industry speculation about the specific nature of the problem.

Chehade revealed to attendees at an unrelated community meeting at ICANN headquarters in Los Angeles last Thursday that the conflict was of a “personal” nature.

Since then, I’ve managed to uncover the basic facts of the story – more than enough to confirm that it’s a personal issue and to establish that there do not appear to be any financial conflicts.

So I’ve decided not to report the full details, other than to say the conflict relates to ARI Registry Services, a major provider of back-end registry services for new gTLD applicants.

Pritz, as senior vice president for stakeholder relations and then chief strategy officer, was for a long time the key ICANN executive overseeing the new gTLD program.

I understand that the conflict was voluntarily disclosed by Pritz.

He also appears to have been held to at least as high a standard of ethics as ICANN’s own board of directors.

While ICANN clearly determined that there was a risk of a perception of a conflict of interest, I’ve discovered no reason to believe there was any actual wrongdoing by ICANN, ARI or Pritz.

The recent public record does not appear to reveal any instances of Pritz giving any special treatment to ARI. If anything, I believe the evidence would most likely lead to the opposite conclusion.

For example, during recent Trademark Clearinghouse implementation talks, Pritz was staunchly opposed to key aspects of a community solution co-developed by ARI.

As reported last month, these talks were notable for Pritz’s attempts to block some important parts of the community proposal, despite aggressive lobbying by ARI executives.

In short, I don’t think there’s a conspiracy here.

It’s my belief that Pritz’s resignation is the result of an unfortunate set of circumstances occurring at an organization that is – understandably – hyper-sensitive to negative perceptions about its integrity.

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New gTLD guru Kurt Pritz quits ICANN over conflict of interest

Kevin Murphy, November 15, 2012, Domain Policy

ICANN’s recently promoted chief strategy officer Kurt Pritz has resigned, citing a conflict of interest.

The shocking news came in a message from CEO Fadi Chehade, posted this afternoon to the ICANN web site.

Here is the message in its entirety:

To the ICANN Community,

Regretfully, I have accepted the resignation of Kurt Pritz, who has served most recently as ICANN’s Chief Strategy Officer.

Kurt has submitted his resignation because of a recently identified conflict of interest, which he immediately communicated to ICANN. After analyzing this conflict of interest, we decided that a change in Kurt’s role within ICANN would be appropriate. Kurt decided to resign his position and role as an officer of ICANN, to best serve the interests of the organization. Kurt will be engaged as a subject matter expert where needed, but will have no access to new gTLD applicant information nor will he play a role in the new gTLD program.

I have already put in place a plan for the reassignment of all of Kurt’s management responsibilities.

I would like to thank Kurt for his many years of service and commitment to ICANN and our community.

Respectfully,
Fadi

No further details were provided.

Pritz was until recently senior vice president for stakeholder relations. He was elevated to the newly created C-level position when Chehade joined ICANN in October.

He’s been ICANN’s point man for the new gTLD program for years, and his departure will be a huge loss to the organization.

His resignation follows that of new gTLD program manager Michael Salazar, who took the fall for the aborted Digital Archery fiasco this June, and comes shortly after Chehade’s incoming management shake-up.

UPDATE: Pritz, in an email to DI, declined to comment and referred questions to ICANN.

UPDATE 2: ICANN has so far declined to elaborate on the reasons for Pritz’s resignation, saying it is a “personnel matter”.

However, according to multiple sources attending an unrelated meeting at ICANN’s headquarters in Los Angeles today (discussing the Trademark Clearinghouse), a couple of hours ago Chehade disclosed that Pritz’s conflict was of a “personal”, rather than professional, nature.

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GNSO gives thumbs down to Olympic trademark protections in shock vote

Kevin Murphy, November 15, 2012, Domain Policy

ICANN’s GNSO Council voted against providing special brand protection to the Olympics and Red Cross today, in a shock vote that swung on a trademark lawyer’s conflict of interest.

A motion before the Council today would have temporarily protected the words “Olympic”, “Red Cross” and “Red Crescent” in various languages in all newly approved gTLDs.

The protections would be at the second level, in addition to the top-level blocks already in place.

The motion merely needed to secure a simple majority in both of the GNSO houses to pass, but it failed to do so despite having the unanimous support of registries and registrars.

Remarkably, the motion secured 100% support in the contracted parties house (registries and registrars) but only managed to scrape 46.2% of the vote in the non-contracted parties house, just one vote shy of a majority.

While the Non-Commercial Users Constituency predictably voted against the extra protections, it was an unnecessary abstention by an Intellectual Property Constituency representative that made the difference.

Trademark lawyer Brian Winterfeldt explained that he was abstaining — which essentially counts as a “no” vote — because the American Red Cross is his client so he had a conflict of interest.

The second IPC representative, newcomer Petter Rindforth, accidentally abstained also, before changing his vote to “yes” after it was explained that abstention was not an official constituency position.

Another member of the non-contracted parties house was absent from the meeting, potentially costing the motion another vote.

Half an hour later, when the Council had switched its attention to other business, Winterfeldt realized that his conflict of interest didn’t actually bar him from voting and asked if he could switch to a “yes”, kicking off a lengthy procedural debate about whether the vote should be re-opened.

In-at-the-deep-end Council chair Jonathan Robinson, in his first full meeting since taking over from Stephane Van Gelder last month, eventually concluded that because some councilors had already left the meeting it would be inappropriate to reopen the vote.

So the decision stands, for now at least: no special protections at the second level for the Olympics or Red Cross.

The Council is due to meet again December 20, when it may choose to revisit the issue. If it does, proponents of the motion had better hope the NCUC doesn’t request a deferral.

If today’s “no” vote is still in effect January 31, the ICANN board of directors may feel obliged to overrule the GNSO in order to approve the second-level reservations.

This wouldn’t look great for the vaunted bottom-up decision-making process, but the board is under a lot of pressure from the Governmental Advisory Committee to protect these two organizations, and it has already said that it favors temporary protections.

I suspect that the damage done today is not to the Olympics or Red Cross, which will probably get what they’ve been lobbying for for the last few years, but to the GNSO Council, which seems to have kicked off its new year on a divisive and embarrassingly bureaucratic note.

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