Whois verification rules coming this year

No more Donald Duck in the Whois?

Registrars could be obliged to verify their customers’ identities when they sell domain names under new rules proposed for later this year, according to ICANN president Rod Beckstrom.

He told National Telecommunications and Information Administration boss Larry Strickling today that the new provisions could make it into the new Registrar Accreditation Agreement by March.

Beckstrom wrote:

ICANN expects that the RAA will incorporate – for the first time – Registrar commitments to verify WHOIS data. ICANN is actively considering incentives for Registrars to adopt the anticipated amendments to the RAA prior to the rollout of the first TLD in 2013.

The RAA is currently being renegotiated by ICANN and the registrar community, following governmental outrage about the RAA at its meeting in Dakar last October.

If new Whois rules are added to the RAA, it will be up to registrars to decide whether to implement them immediately or wait until their existing ICANN contracts expire — hence the need for “incentives”.

Documents ICANN has been posting following its RAA meetings have been less than illuminating, so the letter to Strickling today is the first public insight into what the new contract may contain.

Whois verification, which is often found at the top of the wish-lists of intellectual property and law enforcement communities, is of course hugely controversial.

Civil rights advocates believe that checking registrant identities will infringe on rights to privacy and free speech, while not helping to prevent crime. Actual criminals will of course not hand over their true identities when registering domain names.

The process of verifying Whois data may also wind up making domain names more expensive, due to the costs registrars will incur implementing or subscribing to automated verification systems.

Nevertheless, the anti-new-gTLDs campaign in Washington DC led by the Association of National Advertisers recently led to Whois – a separate issue – being placed firmly on the new gTLDs agenda.

The chairman of the Federal Trade Commission, as well as Strickling, both wrote to ICANN to express concern about the lack of progress on strengthening Whois over the last few years.

Beckstrom’s letter to Strickling can be read here. His reply to FTC chairman Leibowitz – which also schools him in why new gTLDs probably won’t increase fraud – can be read here.

ANA’s modest proposal: let us take over the new gTLD program or we’ll sue

The Association of National Advertisers has offered ICANN a risible last-minute “solution” to the outrage it has created over the new generic top-level domains program.

The ANA wants ICANN to create a temporary “Do Not Sell” list to protect trademark owners and intergovernmental organizations during the first application round, which begins Thursday.

While the first round is open, the ANA itself wants to takes over policy development for the program.

This is its “Proposed Way Forward” in full:

1. ICANN will proceed with its plan to begin accepting applications for new TLDs on January 12, as scheduled;

2. Concurrently, all NGOs, IGOs and commercial stakeholders concerned about protecting their brands will be given the opportunity to have those brands registered, without cost, on a temporary “Do Not Sell” list to be maintained by ICANN during the first application round (any interested party which does not want to have its brands on the Do Not Sell list and would rather apply for a TLD would be free to do so).

We will assemble a team from the interested constituencies to work with ICANN leadership during the first application round. If this group achieves consensus with respect to any proposals, those proposals will be voted on by the Board.

At the end of the first application round, should the parties continue to disagree, all parties will be free to pursue their legal and equitable rights without prejudice.

The alternative to adopting this proposal, ANA president Bob Liodice said in a letter to ICANN today, is “destructive and costly litigation”.

ICANN’s response should be provided “IMMEDIATELY”, Liodice wrote.

I can’t see him getting the answer he wants.

First, the ANA still seems to be worried about top-level cybersquatting, which any sane person can see is extremely unlikely to happen under the new gTLD program’s existing policies.

Second, it’s asking for ICANN to give anyone with a trademark the right to block a string matching that trademark at the top-level.

This may appear reasonable if you think a trademark is something like “Coca-Cola” or “Gucci” or “Google”.

But as soon as you realize that pretty much every word – “music”, “blog”, “web”, “London”, “Paris” – is trademarked, the idea of a Do Not Sell list becomes clearly ludicrous.

It would be a recipe for banning all gTLDs from the first application round.

Third, ICANN already has a mechanism for letting interested stakeholders achieve consensus on new trademark protection policies.

It’s called ICANN, and you don’t need to threaten litigation to participate. You just show up.

You can read the entire laughable ANA proposal here.

Congressmen ask for new gTLDs delay

ICANN should consider delaying the launch of its new top-level domains program, a number of US lawmakers said at a House of Representatives committee hearing today.

If the Senate’s hearing on new gTLDs last week could be characterized as a “win” for ICANN, today’s House meeting probably went in favor of its adversaries in the Association of National Advertisers.

“I don’t think it’s ready for prime time,” Rep. Anna Eshoo said during the Energy & Commerce Committee hearing. “I suggest that it is delayed until consensus is developed among relevant stakeholders.”

That’s exactly what the ANA and the Coalition for Responsible Internet Domain Oversight wanted to hear, and her views were echoed by several other Congresspeople, using similar language.

ICANN’s senior vice president Kurt Pritz, who was put forward to defend the new gTLD program in Washington DC for the second consecutive week, disagreed.

“This process has not been rushed, it’s been seven years in the making,” he said. “All the issues have been discussed and no new issues have been raised.”

National Telecommunications and Information Administration associate administrator Fiona Alexander, there to defend the ICANN process if not its results, observed that “consensus” does not necessarily always mean “unanimity”.

The hearing also heard from Josh Bourne of the Coalition Against Domain Name Abuse, a long-time critic of ICANN and new gTLDs.

CADNA has recently taken a more pragmatic view of the program, coinciding with sister group Fairwinds Partners’ decision to emerge as a new gTLD consultancy.

Bourne therefore found himself not only defending the program but also praising .xxx, saying that its novel trademark protection mechanisms should be mandatory in new gTLDs.

CADNA’s main demand nowadays is for clarity into the dates of subsequent application rounds, which Bourne said would relieve the “condition of scarcity” that the uncertainty has created.

Bourne also said that Congress could fight fraud by revising the the 12-year-old US Anticybersquatting Consumer Protection Act.

Also on the panel as an opponent of the program was Anjali Hansen, an IP attorney with the Better Business Bureau, who came to complain about the cost of defending the “BBB” trademark.

Hansen’s testimony was essentially worthless. When she was not complaining about fraudsters infringing copyright on BBB’s logo (obviously irrelevant in the context of domains) she seemed to be claiming that the Better Business Bureau has exclusive rights to the string “BBB”.

As Pritz noted later, there are 50 registered trademarks for “BBB” – I’ve counted about 18 live ones in the US alone – and any one of those trademark owners would be able to object to .bbb.

There was also substantial confusion about the state of the program. Congressmen conflated separate controversies in order to support the view that new gTLDs should be delayed.

As I’ve noted before, there’s a worrying lack of detail on certain outstanding issues – such as continuity funding requirements – but Congressmen had evidently been fed different talking points and therefore peppered Pritz with questions about the state of ICANN’s negotiations to amend the Registrar Accreditation Agreement, an unrelated matter.

If two themes could be said to have emerged from the hearing, and last week’s Senate hearing, often expressed by the same Congressmen or witnesses, I’d say they were:

First, ICANN should make it harder for criminals to abuse new gTLDs.

Second, ICANN should make it cheaper and easier to obtain new gTLDs.

I would point out that a certain degree of doublethink is required to hold both positions true, but to do so would imply that the necessary singlethink had been done already.

Companies that both support and oppose new gTLDs

NetChoice, which has spent the last few years publicly expressing a skeptical view of ICANN’s new top-level domains program, has today come out explicitly in its support.

“While not perfect, ICANN’s plan to expand the domain space is a critical step forward for the Internet,” NetChoice executive director Steve DelBianco said in a press release.

“Managed properly, the new gTLD program should increase competition, expand user choice, and make the Internet far more useful to hundreds of millions of users worldwide who read and write in alphabets other than Latin,” he said.

This puts a number of companies in the interesting situation of simultaneously opposing and supporting the new gTLDs program, at least if you track which associations they belong to.

Take eBay, for example.

eBay is a member of NetChoice, but it’s also a member of the anti-expansion Association of National Advertisers, according to the organizations’ respective web sites.

It’s also a member of the Interactive Advertising Bureau, which opposes new gTLDs and is a founder member of the Coalition for Responsible Internet Domain Oversight, which was founded by the ANA and also opposes new gTLDs.

Yahoo, Expedia and Facebook are all members of the IAB, which opposes the expansion, and NetChoice, which doesn’t.

The Screen Actors Guild, which has openly opposed new gTLDs, is also inexplicably listed as a member of the Electronic Retailing Association, which in turn is a member of NetChoice.

News Corp is a member of NetChoice, which supports new gTLDs, while many of its Fox-branded subsidiaries are members of the IAB, which is a member of CRIDO, which opposes new gTLDs.

Intel is a member of the ANA, which opposes the program. It’s also a member of the Association of Competitive Technology, which is in turn a member of NetChoice, which supports it.

Very confusing, isn’t it?

Almost makes you think that, regardless of which side you’re on, hiding behind a coalition just makes your point of view seem less valid.

Notes from the Senate new gTLDs hearing

The US Senate’s Commerce Committee held a hearing into ICANN’s new generic top-level domain program today, following pressure from the Association of National Advertisers.

It must have been a busy day on Capitol Hill. Not only was the hearing delayed by 45 minutes, but when it did begin only four or five Senators showed up to speak.

Committee chair Sen. Jay Rockefeller put his head through the door just long enough to deliver a prepared statement, leaving Sen. Amy Klobuchar to lead the rest of the hearing.

It was a relatively subdued and hurried affair that heard for the most part some extremely well-worn arguments about the potential benefits and risks of new gTLDs.

Nevertheless, the hearing did generate a few headline moments. These are my first impressions.

Rockefeller in pro-gTLD shocker

Given that the hearing was called at the behest of ICANN’s critics, it was slightly surprising that the Committee’s chairman gave a generally pro-expansion statement.

Sen. Rockefeller said he was generally in favor of new gTLDs, believing them to be pro-competition and pro-innovation, but suggested that the roll-out should be slower and more cautious.

“I think we’ll have to get used to .hotel, I think we’ll have to get used to .auto,” he said.

“If ICANN is determined to move forward, it should do so slowly and cautiously,” he said. “The potential for fraud, consumer confusion, and cybersquatting is massive and argues for a phased in implementation. Scaling back the initial round of new top level domains introduced in 2013 may be a prudent approach.”

ICANN expects about 1,000 applications

Senior vice president Kurt Pritz gave the latest ICANN guesstimate about how many new gTLD applications it expects to receive in the first round.

That number is 500 to 1,000, maybe a little more but “not thousands”, he said, noting that the estimate was completely based on hearsay.

New ICANN conflict of interest rules

ICANN’s board of directors evidently voted to restrict their post-ICANN employment opportunities at the board meeting earlier today, if Pritz’s testimony is an accurate guide.

He said that directors will not be able to work for any new gTLD operator that they have voted to approve for 12 months after they leave ICANN.

Cheaper application fees for worthy applicants

Again scooping the publication of today’s ICANN board meeting resolutions, Pritz revealed that application fees are going to be reduced from $185,000 to $47,000 for needy applicants.

This suggests heavily that ICANN figured out a way to accommodate the recommendations of the Joint Applicant Support working group, which proposed a number of measures aimed at reducing the financial burden for applicants in developing nations.

There was no word from Pritz about which organizations or nations will be eligible for the reduction, however.

The ANA compares senators to Disney characters

At one point, the ANA’s Dan Jaffe wheeled out a slide bearing a picture of Donald Duck and Mickey Mouse, to illustrate the problem of inaccurate Whois information.

He was addressing Sen. Maria Cantwell and Sen. Kelly Ayotte, both of whom asked questions about fraud and both of whom use Whois privacy services on their official campaign web sites.

I found this immensely amusing.

Dyson speaks for the little guy (if he has a trademark)

Former ICANN chair Esther Dyson said in her opening testimony that she was the only person at the hearing there to represent public opinion, rather than that of big business.

She then went on to complain, with a straight face, about all the trademark enforcement headaches big business will have to deal with in a world of hundreds of new gTLDs.

She’s particularly miffed, as a director of a company called Meetup, that ICM Registry has reserved meetup.xxx as a premium domain name.

Meetup will probably sue whoever buys the name for trademark infringement, she indicated.

Way to stick it to The Man, Esther!

Wither IDNs?

Non-Latin-script gTLDs were not discussed in any depth during the hearing, meriting only one or two mentions.

That’s unusual, given that IDN gTLDs are the one benefit of the ICANN program that not even intellectual property interests have dared to argue against.

Next steps

The ANA and the YMCA want somebody to put a stop to the new gTLD program, or to at least delay it.

Dyson suggested that for the US to unilaterally intervene might be a bad idea, politically.

When asked whether the Department of Commerce would be able to stay ICANN’s hand, Commerce representative Fiona Alexander ducked the question.

With a handful of exceptions, nobody on the Senate committee seemed to care enough about the subject to show up and ask questions.

I think this probably counts as a win for the pro-expansion camp.

There is however another hearing, this time before the House Energy and Commerce Committee, next week. If recent history is any guide, we’re likely to be in for more of the same.