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US House passes anti-ICANN bill

Kevin Murphy, May 27, 2014, Domain Policy

The US House of Representatives has passed the DOTCOM Act, which would prevent the Department of Commerce from walking away from its oversight of the DNS root zone.

The bill was approved as an amendment to a defense authorization act, with a 245-177 vote that reportedly saw 17 Democrats vote in line with their Republican opponents.

The DOTCOM Act has nothing whatsoever to do with .com. Rather, it’s a response to the National Telecommunications and Information Administration’s plan to relinquish its role in root zone management.

The bill as passed (pdf) would prevent NTIA from agreeing to any multistakeholder community-created IANA transition proposal until the Government Accountability Office had issued a study on the proposal.

The GAO would have one year from the point ICANN submits the proposal to come up with this report.

That means that if ICANN and NTIA want to stick to their September 2015 target date for the transition, either the ICANN community would need to produce a proposal at unprecedented and unlikely speed or the GAO would need to take substantially less than a year to write its report.

I don’t think it’s an impossible target, but it’s certainly looking more likely that NTIA will have to exercise one of the two-year automatic renewal options in the current IANA contract.

That’s all assuming that a matching bill passes through the Democrat-controlled Senate and then receives a presidential signature, of course, which is not a certainty.

Assuming a bloc vote by the 47 Republican Senators, only four Democrats (or independents) would need to switch sides in order for the DOTCOM Act to become, barring an unlikely presidential veto, law.

To the best of my knowledge there is not currently a matching bill in the Senate.

Second US bill would block IANA transition

Kevin Murphy, April 3, 2014, Domain Policy

Another bill has been introduced into the US Congress related to the IANA transition process, and this one would actually be dangerous if passed.

Rep Mike Kelly introduced the Internet Stewardship Act (pdf) to make the IANA transition a matter that requires Congressional legislation.

The press release announcing the bill is longer than the bill itself, which says just this:

NTIA PROHIBITED FROM RELINQUISHING DNS RESPONSIBILITIES.

The Assistant Secretary of Commerce for Communications and Information may not relinquish or agree to relinquish the responsibilities of the National Telecommunications and Information Administration with respect to Internet domain name functions, including responsibility with respect to the authoritative root zone file, the Internet Assigned Numbers Authority functions, or the related root zone management functions, unless such relinquishment is permitted by a statute enacted after the date of the enactment of this Act.

In other words, if this bill is enacted then another bill would be required in order for the NTIA to remove itself from root zone oversight.

Try to imagine a bill relinquishing control over the “critical internet functions” getting majority support in any national legislature.

Try to imagine it getting support in a national legislature that has more than its fair share of flag-waving nationalists and gung-ho xenophobes.

Try to imagine the Republican party in Congress allowing the Obama administration, which it despises, to ‘give away the internet’ to Vladimir Putin and theocratic Arab states, which is what a lot of commentators irrationally seem to think is happening.

It Kelly’s bill is passed, ICANN may as well kiss goodbye to ideas of independence from US oversight for the foreseeable future.

Fortunately, the bill is just a bill right now.

ICANN fights the fear in Congressional hearing

Kevin Murphy, April 3, 2014, Domain Policy

A Congressional hearing yesterday addressed fears that the decision to cut ICANN loose from US governmental oversight would lead to the internet being seized by backwards regimes.

Long-term DI readers may recall that I’m usually quite snarky whenever a Congressional subcommittee convenes to pretend to be interested in ICANN — with the reason that they usually talk a lot of nonsense.

But this time the majority of the House Subcommittee on Communications and Technology seemed genuinely interested, surprisingly clueful, and relatively low on hyperbolic fearmongering.

The hearing was arranged due to the National Telecommunications and Information Administration’s March 14 decision to remove itself from the DNS root zone management triumvirate.

Whole cartloads of horse pucky have been wheeled out in response, exemplified by breathless editorials about how the world’s most repressive governments will immediately step in to fill the NTIA-shaped void.

It’s Obama’s policy of “appeasement”, designed to allow a shirtless Vladimir Putin to drive a tank directly into the root zone file, if you believe right-leaning American commentators.

There was some of that in yesterday’s hearing, but it was overshadowed by a discussion that seemed to be more interested in addressing genuine concerns and clearing up misconceptions.

Basically, Congressmen are afraid that if the NTIA leaves its role as steward of the DNS root zone, that will somehow lead to other governments taking over and internet freedoms being diminished.

How that fear manifested itself on the committee ranged from thoughtful and understandable expressions of concern and caution to wild-eyed, nonsensical, Putin-obsessed ranting.

It was the job of witnesses Larry Stricking of the NTIA, Fadi Chehade of ICANN and Ambassador David Gross, formerly of the Department of State, to reassure Congress that everything is going to be okay.

Rep. Scalise thinks Putin is magic

At the risk of being accused of sensationalism, I’m starting with the nut-job, but only to illustrate the misinformation ICANN and the NTIA have been dealing with for the last few weeks.

In a way, Rep. Steve Scalise’s portion of the hearing’s Q&A section is a microcosm of the dialogue that has been playing out in the media since the NTIA announcement.

Scalise was the guy on the committee who seems to believe that Russia and China possess the supernatural powers necessary to “take over the internet”. Red Magic, perhaps.

Here’s an exchange with Strickling and Chehade, which began when Scalise asked the panel to address concerns about authoritarian regimes taking over the internet:

STRICKLING: We won’t let that happen, number one.

SCALISE: What’s an assurance of that? It’s good to say we won’t let that happen, it’s nice to hear it, but nobody knows what’s gong to happen. You can’t tell me what’s going to happen. How do you know you won’t let it happen?

STRICKLING: I’m saying that we will not accept a proposal that has that as its outcome. Period. End of story. So it won’t happen. Second, nobody has yet explained to me the mechanism by which any of these individual governments could somehow seize control over the internet as a whole—

SCALISE: You really don’t think that Russia… Look, Russia and China have made it very clear what they want to do to suppress internet freedom. They’ve made it very clear—

STRICKLING: And they do it within their own countries—

SCALISE: At the end of the day y’all are going to come up with some sort of process if you’re going to transfer away, and I say IF — capital I, capital F — if you transfer it away you will come up with some sort of process. Do you really not thnk that Vladimir Putin, with all the other things he’s busy with right now, ain’t going to try to figure out some way to get control? It won’t be through the Russian government directly necessarily, but China and Russia have proven very resourceful at trying to figure out what that process so that they can manipulate it. You can do all the things you want to stop that from happening but at end of the day it comes out to where those countries have figured out a way, like they’ve figured out a lot of other ways too, to do something subversive that goes against all the intentions that we have. You can’t stop that.

STRICKLING: Well, Congressman, what do you think they could do that they can’t do today?

SCALISE: What do you really think…? Look at what Putin’s doing right now! The President just doesn’t seem to take this seriously what he’s doing through Eastern Europe. He’s trying to rebuild, get the old band back together, get the Soviet Union back together, right now before our very eyes. Secretary of State Kerry says the international community won’t accept this. They’re doing it! They don’t care what the international community thinks. They’re invading a country. So what would they do to get control of the internet if you threw something out there? These are real concerns that are being expressed. The other two panelists can touch on this as well.

CHEHADE: Thank you, Congressman. Let me be clear that at ICANN it is impossible for them today to do so. They’ve been trying for 15 years—

SCALISE: Exactly! Which is why it’s working.

CHEHADE: But it’s not because the US actually has the current stewardship role, it’s because of the multistakeholder model. It stops them. Where they will try to do what you’re suggesting is in the international intergovernmental organizations. They’ve been trying to do that there. We want to take away from them any argument that they still go to the UN and try to take over what ICANN does, by making sure that ICANN is free of one government control. To show them that ICANN believes in the multistakeholder model and this great country that created that model trusts it.

Chehade 1 – Scalise 0.

But did Scalise have a point, even accidentally? I’m going to cover that question in a separate post.

Rep Shimkus really wants you to support his bill

A recurring theme of the hearing was the Domain Openness Through Continued Oversight Matters (DOTCOM) Act, introduced by Rep. John Shimkus and others last week.

I called the bill “pointless” when it emerged, as all it does is delay any transition for a year until the US Government Accountability Office has conducted a study of the ramifications.

But there’s also a feeling that the Act would be a distraction at best and may cast more uncertainty than is necessary over the transition process at a critical time for internet governance.

Both Strickling and Chehade prevaricated when Shimkus asked them outright, repeatedly, if they were opposed to the GAO review.

Strickling said he “neither or supports or opposes” such a review but said he was “in favor of full discussion of these issues”.

Chehade, seemingly reluctant to tie himself to a one-government review said he did not have a view, but that he committed to full transparency in the issue.

The fact that Chehade had said that there was “no rush” to conclude the transition process was later used by Shimkus as a gotcha, when he pointed out that the Act’s one-year delay would not have an impact.

On a second panel, Carolina Rossini of the Internet Governance and Human Rights Program of the New American Foundation, gave perhaps a fuller explanation of why there’s caution about the bill.

My concern is that if we wait one year, if we block the transition now and wait one year until we have a report, that is the risk. And that’s the risk that we have non-democratic governments to actually make their voices even louder and manipulate the narrative both in NetMundial and in the [ITU] plenipot in November.

Shimkus said he’d concluded that Chehade and Strickling has “in essence supported the bill”, which I don’t think was necessarily a fair interpretation of what they said.

The two-and-a-half hour hearing had a couple of other diversions — Rep Blackburn going off on a crazy tangent about net neutrality and Rep Latta wasting everyone’s time to score points on behalf of a constituent, a .med gTLD applicant — but otherwise it was generally sane stuff.

The committee seemed to be fairly well-briefed on the subject before them. Most of the Congressmen expressed their concerns about the transition in sensible terms and seemed to take the answers on board.

Special recognition should also be given to Chehade, who won the slightly condescending praise and admiration of some of the committee when he choked up on an abridged version of his immigrant origin story.

He has an uncanny ability to speak to his audience at every occasion and he put it to excellent use yesterday.

Republicans introduce pointless ICANN bill

Kevin Murphy, March 28, 2014, Domain Policy

Three Republican Congressmen have introduced a bill that would prevent the US government removing itself from oversight of the DNS root zone.

For a year.

The inappropriately titled Domain Openness Through Continued Oversight Matters (DOTCOM) Act is designed to:

prohibit the National Telecommunications and Information Administration from relinquishing responsibility over the Internet domain name system until the Comptroller General of United States submits to Congress a report on the role of the NTIA with respect to such system.

Basically, the NTIA would be barred from walking away from root zone oversight until an analysis of the advantages and disadvantages of the transition was published, which would have to happen within a year.

The report would also have to include a definition of “multi-stakeholder”.

The three Republicans who introduced the bill — Representatives Todd Rokita, John Shimkus, and Marsha Blackburn — either have no idea what they’re talking about, or they’re being intellectually dishonest.

Blackburn said in a press release:

We can’t let the Internet turn into another Russian land grab. America shouldn’t surrender its leadership on the world stage to a “multistakeholder model” that’s controlled by foreign governments. It’s imperative that this administration reports to Congress before they can take any steps that would turn over control of the Internet.

Shimkus said:

In the month of March alone we’ve seen Russia block opposition websites, Turkey ban Twitter, China place new restrictions on online video, and a top Malaysian politician pledge to censor the Internet if he’s given the chance. This isn’t a theoretical debate. There are real authoritarian governments in the world today who have no tolerance for the free flow of information and ideas. What possible benefit could come from giving the Vladimir Putins of the world a new venue to push their anti-freedom agendas?

This is hysterical nonsense.

Not only has ICANN no intention of allowing the IANA function to be controlled by foreign governments, the NTIA has explicitly stated from the start that no governmental solution would be acceptable.

It’s also ironic that the only two governments to ever consider censoring the root zone were the European Commission and the United States, under the Republican Bush administration.

The current expectation, assuming community talks proceed as swiftly as hoped, is for stewardship of the IANA function to leave the NTIA’s hands when the current contract expires in October 2015.

Even if the DOTCOM (really?) Act were to be passed into US law this year, it shouldn’t have any serious impact on the timing of the root transition.

With that in mind, the three-page bill (pdf) looks quite a lot like an extended press release, rather than a serious attempt to keep the root in US hands.

Rockefeller slams .sucks as “predatory shakedown”

Kevin Murphy, March 12, 2014, Domain Policy

US Senator Jay Rockefeller today came out swinging against the proposed .sucks new gTLD, saying it looks like little more than a “predatory shakedown” by applicants.

In a letter to ICANN (pdf), Rockefeller has particular concern about Vox Populi, the .sucks applicant owned by Canadian group Momentous.

As we’ve previously reported, Vox Populi plans to charge trademark owners $25,000 a year for defensive registrations and has already started taking pre-registrations even though .sucks is still in contention.

Rockefeller told ICANN:

I view it as little more than a predatory shakedown scheme… A gTLD like “sucks” has little or no socially redeeming value and it reinforces many people’s fears that the purpose of the gTLD expansion is to enrich the domain name industry rather than benefit the broader community of internet users.

Unusually, I find myself in agreement with Rockefeller, who chairs the Senate’s Commerce, Science and Transportation Committee — Vox Populi’s plan does bring the domain industry into disrepute.

But it’s not the only applicant for .sucks. Top Level Spectrum and Donuts have also applied for the string.

While neither has revealed their proposed pricing, in Donuts’ case a blocking registration via its Domain Protected Marks List service will cost substantially less on a per-domain basis.

Rockefeller asks that ICANN keep his thoughts in mind when reviewing the application, and I’m sure ICANN will pay lip service to his concerns in response, but I don’t think the letter will have much impact.

A bigger question might be: does Rockefeller’s letter foreshadow more Congressional hearings into the new gTLD program?

The last one, which Rockefeller chaired (for about five minutes, before he buggered off to do more important stuff) was in December 2011, and they have tended to happen every couple of years.

Such a hearing would come at an inopportune moment for ICANN, which is trying to distance itself from the perception of US oversight in light of the Edward Snowden spying revelations.

It’s been setting up offices all over the world and championing the forthcoming NetMundial internet governance meeting, which is happening in Brazil next month.

Nutty DotConnectAfrica gives DI a good kicking

Kevin Murphy, March 2, 2013, Gossip

New gTLD applicant DotConnectAfrica is not happy with DI, again.

The nutty .africa applicant took issue with a recent post describing the company as “nutty” and trying to make sense of a rambling conspiracy-laden letter it had sent to the US Congress.

As a reminder, DCA is competing with South Africa’s ccTLD registry operator UniForum, which has the support of African governments and the African Union, for the .africa gTLD.

DCA has been in denial about the fact that its application is doomed for many months, scrabbling for any opportunity to cling to its .africa dream, and DI is its latest windmill.

DCA requested that I publish its lengthy “rejoinder” to our last blog post here, so I have, albeit interspersed with my own commentary.

I apologize in advance for leaving DCA’s formatting intact.

Dear Mr. Kevin Murphy,

Subject: Our Rejoinder to your article on DCA’s Complaint to U.S. Congress

The attention of DotConnectAfrica (DCA) Trust has been drawn to your recent Blog article with the title: ‘Nutty DCA Complains to US Congress about .Africa’ (http://domainincite.com/11958-nutty-dca-complains-to-us-congress-about-africa).

Even though you have continued to demonstrate your penchant for biased and negative reporting against DCA Trust, we think that the use of the pejorative ‘nutty’ is uncalled for and shows your disrespect and disdain for our organization and we believe you owe us an apology.

I don’t believe an apology is required.

DCA is the laughing stock of the industry, a status it will continue to hold until its .africa bid is killed off a few weeks from now.

“Nutty” is a generous, whimsical way to describe the company’s recent antics, which have included:

  • nuttily wasting >$185,000 on a gTLD application that has no chance of being approved,
  • nuttily applying for the wrong gTLD (.dotafrica),
  • using fake online identities to make it appear that DCA has grass-roots support for its nutty ideas,
  • throwing around nutty allegations of “wholesale illegality” without a) specifying what laws have been broken b) by whom and c) presenting any credible evidence to back up the allegations,
  • overabundant use of bold text, underlined text, colored text and font changes to distract from the fact that its nutty missives lack substance — a tactic favored by online conspiracy theorists since the dawn of the ‘net.

In short, if you think “nutty” is bad, trust me when I say it was the least antagonistic adjective I could come up with.

However, even though we already feel a sense of righteous indignation by your mocking tone and the fact that you have openly engaged in unnecessary name-calling simply to aggravate DCA Trust; we are actually more interested in setting the records straight for the benefit of your readers, and wish only to focus on the substantive issues in this rejoinder.

You cannot write to deliberately misrepresent the facts contained in our letter to the 113th United States Congress. For example, you have stated that “according to information in Bekele’s letter, the AU wanted an experienced, Africa-based registry operator to run the TLD, and UniForum, which runs South Africa’s .za ccTLD, was the only qualified candidate.”

Wrong – Not DCA’s View to say Uniforum is Only qualified candidate

First, this is not our view, therefore you cannot put words into our mouth, and we do not agree that UniForum was the only qualified candidate to run .Africa. This is not the viewpoint conveyed in our letter to the United States Congress. We only attempted to re-state what is contained in a draft unpublished report on the ‘unofficial history’ of DotAfrica that was written by Ms. Rebecca Wanjiku, a Kenyan journalist and member of the DotAfrica Registry Project Team under the contrived ‘Africainonespace’ structure (http://www.africainonespace.org/); who had purportedly interviewed Mr. Vika Mpisane, then Chairperson of the AfTLD.

My blog post, as DCA accurately quotes, said “according to information in Bekele’s letter”. The “information in Bekele’s letter” is the text she quoted from Wanjiku’s “draft unpublished report”.

I would have cited the report itself but, as DCA says, it’s unpublished.

In a nutshell, Wanjiku reported that the AU endorsed UniForum because it “wanted African ccTLDs to play a crucial role in implementing .Africa” and that UniForum was the only African ccTLD with an EPP registry.

This interview revealed to us that no tender process actually took place, because the name of UniForum was simply put forward by the AfTLD, and this was accepted by the African Union Commission (AUC). This peculiar transaction as recorded in Rebecca Wanjiku’s account apparently contradicts the official AUC position that there was an open and transparent tender process which “attracted both local and international registries interested in managing dotAfrica gTLD.”

Only a nutty reading of the Wanjiku extract suggests that “no tender process actually took place”.

The existence of the African Union’s November 2011 .africa RFP is not open to question. It’s a matter of public record.

You can still download it here.

DCA is on record acknowledging the RFP at the time it was published, ranting: “DCA has decided not to participate in this sham RFP process and also urges prospective bidders to also avoid the RFP.”

And now DCA is openly questioning whether the tender process even happened? Nutty, nutty, nutty.

Therefore, our contention is that UniForum ZA Central Registry, the other competing applicant for .Africa gTLD is the beneficiary of wholesale illegality in the process of winning the endorsement of the African Union (AU) Commission for the .Africa geographic Top-Level Domain name. This is clearly spelt out in our letter to the U.S. Congress and it does not need any further elaboration or an extra-ordinary effort on the part of any educated person to read it several times to understand what DCA Trust is saying.

Everything DCA produces reads like it was written by Google Translate, run through an overenthusiastic thesaurus, then published by a computer science undergraduate in 1995. In my opinion.

I finished reading its letter to Congress wondering: who did the illegal stuff? What was the illegal stuff they did? What laws were broken? Where? When? Is it worth my time even asking?

Given that DCA wants Congressional intervention, one would expect it to state what the alleged illegal acts were, but it doesn’t. It just says “wholesale illegality” and leaves it at that.

It’s my view that the real reason DCA is pissed off is that, having failed to win the support of African ccTLDs, the AU’s 2011 RFP pretty much excluded DCA from getting the AU’s endorsement.

The company lacked the expertise, experience and the support of African ccTLD operators that the RFP specifically asked for and weighted in its scoring criteria.

I’m not going to pretend to be an expert in African procurement law, but I’d guess that the AU would be unlikely to publish such criteria in an open RFP document if such criteria were illegal.

That’s why, in my view, DCA throws around terms like “wholesale illegality” without getting into specifics. As soon as one look at specifics, its argument melts away like warm Nutella.

It may have been unfair, from DCA’s perspective, for the AU to require a competent partner for .africa, but if the alternative was a company that would do something nutty like, I dunno, apply for the wrong string…

Deliberately Obfuscating to confuse your readers

After reading your report, we believe that you have deliberately tried to obfuscate the matter to either confuse your readers or intentionally divert the attention of the global public from understanding the full import and main implications of our letter to the U.S. Congress. You cannot report that “the AU Commission, at the conclusion of its tender process, decided to support the UniForum proposal” when the available evidence profoundly suggests otherwise; that indeed, there was really no tender process. We have always challenged the AU Commission to publish the report of that Tender Process for the entire world to see. We also maintained this in our official response to the ICANN GAC Early Warning that was issued against our .Africa application.

DI has nothing to gain from obfuscating facts or confusing readers. The entire raison d’etre of the site is to do exactly the opposite.

The best way to avoid confusing readers would be to simply no longer report on DCA’s nutty pronouncements. Believe me, nothing would give me greater pleasure.

Only ICANN can determine a qualified candidate to operate .africa

Second, our fixed position is that only the ICANN can determine the “qualified candidate” to operate .Africa based on the outcome of the new gTLD program. This is not for the AfTLD or the AU to decide contrary to the dictates of the new gTLD program and the sacrosanct stipulations contained in the new gTLD Applicant’s Guidebook. By attempting to decide, as a fait accompli, the registry operator for the new .Africa gTLD, the AU acted ultra vires, and this is a clear usurpation, and an inexcusable violation, of ICANN’s roles, responsibilities, privileges and authority under the officially sanctioned new gTLD program. This is a viewpoint that we have already communicated officially to ICANN and also in our public comments posted against the .Africa new gTLD application submitted by UniForum ZA Central Registry.

Has DCA read the Guidebook?

ICANN makes it abundantly clear throughout that it will defer to governments on geographic gTLDs.

It won’t approve any geographic gTLDs that don’t have the support of the relevant government. For regions such as Africa, that support has to come from 60% of the region’s governments.

DCA presumably knows all this, and yet it nuttily applied for .africa (.dotafrica) without that government support, dooming its $185,000 application to certain failure.

UniForum, on the other hand, does have that governmental support, giving it a shot at being approved.

Does DCA honestly believe that ICANN’s board of directors will favor DCA over UniForum, ignoring the wishes of the governments of Algeria, Benin, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Cote d’Ivoire, D.R.Congo, Djibouti, Egypt, Gabon Gambia, Ghana, Guinea, Kenya, Liberia, Mali, Mauritania, Mauritius, Moroco, Mozambique, Namibia, Niger, Nigeria, Senegal, Seychelles, Sierra Leone, South Africa, South Sudan, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia, Zimbabwe and the African Union itself?

Good luck with that.

Even if all of Uniforum’s support were to evaporate tomorrow, DCA’s application would still be rejected under ICANN’s “sacrosanct” rules, because DCA doesn’t have government support and is unlikely to get it having spent the last year randomly accusing all those concerned of corruption and law-breaking.

Third, we have always maintained that if UniForum had been endorsed to apply on behalf of the African Community, then it should have submitted an application on behalf of the African Community and acknowledged the same community in its .Africa new gTLD bid to ICANN. We believe that UniForum, after using the African Community as ‘an excuse’ to obtain an important endorsement from the AUC, deliberately failed to acknowledge the same African Community in its bid based on the answers that it provided (or failed to provide by indicating ‘blank’) to ICANN Evaluation Question Nos. 19 and 20 in its .Africa new gTLD application. In DCA’s estimation, this is deceitful and fraudulent. If you obtain an endorsement under the pretext that you intend to, or have agreed to run and operate a geographic TLD on behalf of the African Community, then you should actually apply on behalf of this named community, to wit, the African Community.

UNIFORUM Application is Not on behalf of African Community

For further emphasis, it is necessary for one to refer to the published parts of UniForum’s application and their answers to Evaluation Question Numbers 19 and 20 to indeed verify that UniForum deliberately failed to acknowledge any Community in their official answers to ICANN. In their answer to Question No. 19 (“Is the application for a Community based TLD?”), they unequivocally stated “No”. The question No. 20 (a) – (e) which immediately follows: “(a) Provide the name and full description of the community that the applicant is committing serve”; UniForum intentionally left it blank, thus indicating that they have not actually named any community that they claim to be committing to serve in their new gTLD application for .Africa.

Your redefinition of “Community” against the rule book specifications to support UNIORUM is frivolous and mischievous

Therefore, your attempt to define ‘Big-C’ and ‘small-c’ is quite irrelevant and an unnecessary exercise in frivolity at a time that analytical and professional seriousness are called for. The AU Communiqué published in March 2012 clearly states that “the AU Commission selected UniForum SA (the ZA Central Registry Operator or ZACR), to administer and operate dotAfrica gTLD on behalf of the African community”; which you also previously acknowledged in your report of July 2012. As a matter of fact, we are actually compelled to believe that your statement that “no applicant was obliged to submit a big-C Community application under ICANN’s rules” is not only flippant but also quite mischievous.

Does DCA really not understand the difference between a “community” and a “Community gTLD application”?

I’ve attempted to explain it before and I’m not sure how to better phrase it than this: one’s a type of gTLD application and the other isn’t.

I suspect DCA does “get it” because its own application for .africa (.dotafrica) states:

DCA believes that DotAfrica does not qualify as a community-based application for two main reasons:

a) There is no clearly delineated, organized and pre-existing community that is targeted by the DotAfrica gTLD.

b) It is difficult to clearly identify who are the ‘members’ of the community, since a ‘community-definition’ of DotAfrica will restrict its use and functionality. Since ‘DotAfrica’ does not necessarily mean a TLD for ‘Africans’, it is difficult to determine the persons or entities that are considered to form the community, and the number of people or entities that make up the community.

In other words, while DCA believes .africa should not be a Community application under ICANN’s rules, it also believes that UniForum had an obligation to submit a Community application anyway? Nutty.

The actual bone of contention is that an endorsement was sought and obtained under the pretext that a Community TLD application would be submitted on behalf of the African Community. The basis cannot change after one has obtained the endorsement. DCA Trust believes that it is not your responsibility to explain why UniForum willfully reneged on the commitment that was implicit in the endorsement that it had received from the African Union Commission.

Nowhere in the African Union’s RFP for .africa does it say that the applicant must submit a Community application.

I’m not aware of any statements from UniForum to the effect that it would submit a Community application.

DCA has never provided any evidence that the AU wanted a Community application nor that UniForum promised one.

Its only tenuous scrap of evidence appears to be a press release (pdf) from the AU that announces UniForum was selected to “operate dotAfrica gTLD on behalf of the African community.”

To read that sentence as “UniForum will submit a Community application” is quite, quite nutty.

Incidentally, if UniForum did lie to the AU and other governments about submitting a Community application, it’s within the governments’ power to withdraw their endorsements at any time.

Uniforum’s Endorsement should be legally invalidated

Our position is that if UniForum has reneged in its commitment, that this fundamental issue must be forced so as to hold it accountable in order to prevent the perpetration of any acts of illegality and outright fraud over the issue of .Africa; and if this is process of accountability is not established by the African Internet Community, the African Union (and its African government member states) or ICANN, then the matter should be rightfully escalated for adjudication to the powerful United States Congress as the highest over-sighting institution of the United States Federal Government. We contend that if UniForum has been fraudulent in its application, this should legally invalidate the endorsement that it has received from the African Union Commission. This determination must be made officially by some authoritative body in order for the cause of justice to be served.

United States Congress has complete jurisdiction over the entire new gTLD program by ICANN

Our understanding is that the .Africa new gTLD is an Internet resource to be delegated by ICANN, and the same ICANN is under U.S. Federal Government Oversight by virtue of its mandate as a federal contractor handling the Internet Technical Management Functions (such as domain names and unique Internet address numbering and assignment) under the IANA Contract. It is therefore our contention that the United States Congress has complete jurisdiction over the entire new gTLD program of ICANN and this cannot be challenged (or scoffed at) by anybody without drawing the ire of Congress. DCA Trust has therefore acted correctly by recognizing the overarching authority of Congress over the entire ICANN new gTLD process and deciding on its own to undertake a necessary due process escalation of this matter to Congress. It is really not our fault if Mr. Kevin Murphy as the Domainincite Blogger lacks the intellectual acuity and analytical acumen to see this matter the same way we see it.

A Dishonest Analysis: Not even ICANN will agree with your opinion – Coomunity applications are not just “a technicality.”.

Furthermore, your explanation that “there’s no need to take advantage of the mechanism if you’re applying for a geographic string and have the necessary government support” is patently dishonest. DCA’s demand for accountability is actually pivoted on this particular point: how the government support was obtained, because the ‘community’ pretext was used by UniForum to obtain the government support from the AUC. Therefore, we believe that it is not your position to justify anything or create new definitions of what ‘community’ is about. Not even ICANN will agree with your opinion that “Community applications are just a technicality of the ICANN program, designed to give advantages to applicants that truly do have the support of a community.”

Community applications are not just “a technicality”. If UniForum claims to have both community support from the African Internet Community, and the support of African Governments, and has been selected to administer and operate a geographic TLD for the benefit of the African Community (whichever way this community is defined), then why did it not acknowledge this ‘African Community’ in its application? What is UniForum afraid of? We believe that if there is a proper accountability mechanism, then the truth regarding the actual intentions of UniForum can be fully established.

DCA cannot help with your Confusion, but we do not expect Congress NOT to be confused

Again, you have attempted to obfuscate the issues by stating in your Blog that DCA seems to deliberately confuse the process AfTLD used to back UniForum and the process the AU Commission used to select UniForum. We cannot help your confusion, since if you are confused you cannot assist your readers to properly dissect and understand what the pertinent issues are.

We do not expect Congress to be confused. Our understanding is that the process which the AfTLD used to back UniForum clearly caused the ‘No Tender Process’ that was used by the AU to select UNiForum.

For us, there is no confusion since the one connected chain remains evident for anyone to see. Our letter to Congress clearly alludes to the “illegal subversion of what was supposed to be an open and competitive tender process.”

The UNIFORUm Proposal is the same as the failed ARC, which you refereed as ‘Cuckoo Business Model’

We may recall that the African Registry Consortium (ARC) that was formed by the directors of UniForum SA sometime in 2011 had tried to solicit an expression of interest from the AfTLD: “For the provision of a domain name registry solution to the African Top Level Domain Organization (aftld) for purposes of preparing, submitting, funding and promoting a successful bid to ICANN for the dotafrica new gTLD.” (See http://africanregistry.net/index.php#endorse).

The ARC proposal had failed after DCA Trust campaigned vigorously against it as a potential Black Economic Empowerment (BEE) scam and for its ‘carpetbag opportunism’. It is the same proposal of the ARC that was pushed in the name of UniForum, and as you have also acknowledged in your write-up, “the AfTLD bid morphed into the UniForum bid.” The connection is therefore quite unmistakable, and we are not fooled. DCA Trust has always warned the African Union Commission and UniForum ZA Central Registry to beware of any irregularities over .Africa new gTLD and our position has not shifted. We are fully convinced that illegality has occurred and that an accountability mechanism must be established by the United States Congress to look into this.

Your deviation from the Truth, Professionalism and Journalistic integrity

Those who have been following the Domainincite Blog (http://www.domainincite.com) may also recall that Kevin Murphy had written about the ‘Cuckoo Business Model’ which he now thinks does not (or should not) apply in the case of UniForum.

The “Cuckoo Business Model” I once discussed referred to the practice of applying for a new gTLD that you know another company is also going to apply for, not in order to actually operate it but rather to extort money from other applicants in your contention set before withdrawing.

It obviously doesn’t apply to .africa — UniForum has no intention of dropping its application and actually wants to run the .africa registry,

DCA, on the other hand, has no chance whatsoever of getting its .africa bid approved and its best-case-scenario outcome here is getting a pay-off from UniForum.

If anything, DCA would be the cuckoo.

It sucks for DCA, which was pimping the .africa brand long before UniForum, but that’s the risk it took when it broadcast its plans to the world before it knew what the rules were going to be.

Therefore, it is our opinion that you have already deviated from the path of truth, professionalism and journalistic integrity; and by engaging in unbalanced and biased reporting against DCA Trust, you have also become quite neglectful of your scared responsibilities to the global public.

As much as I hate to make ad hominem arguments, I can’t help but point out that this is coming from the company that has been creating unconvincing fake online identities to support its nutty positioning.

Truth ain’t DCA’s strong point.

Downplaying DCA’s request for US congress intervention in serious issues

Finally, we believe that you have been rather disingenuous in your attempts to down-play the reason for DCA’s request for the intervention of the U.S. Congress. We have recommended and clearly stated in our letter that Congress should:

  • appoint a new gTLD Ombudsman that would report directly to Congress
  • should give the necessary approval and official impetus for the establishment of a new gTLD Program Ombudsman that would handle and look into different forms of grievances reported by new gTLD applicants
  • and investigate any forms of alleged irregularities and acts of illegality committed by applicants, especially of the sort that DCA Trust has outlined against its direct competitor for the .Africa gTLD, UniForum ZA Central Registry.
  • the new gTLD Ombudsman will be authorized by Congress with the powers of an Independent Counsel to investigate and adjudicate on issues of illegality that have been reported regarding new gTLD matters.

This is what we are asking Congress to do, and you cannot downplay the precedence-setting significance of this recommendation by stating whimsically that ICANN already has an Ombudsman. ICANN’s Ombudsman has no mandate to investigate alleged irregularities and acts of illegality that have been committed by new gTLD applicants.

Fair point.

Asking Congress for an independent Ombudsman was quite interesting, no matter how self-serving and unjustified the request, and perhaps I should have reported the idea in a little more detail.

We hope that you will publish this rejoinder in your Blog and give it proper visibility to ensure that your readers also have the opportunity to read our response to your article.

Sure thing.

We thank you in anticipation of your cooperation.

Yours sincerely,
DCA Public Communications Team
Nairobi, Kenya

Nutty DCA complains to US Congress about .africa

Kevin Murphy, February 22, 2013, Domain Policy

DotConnectAfrica’s increasingly unhinged campaign for the .africa gTLD has seen it take the unusual step of complaining to the US Congress about “wholesale illegality” in the contest.

The company also appears to be running an astroturf campaign on Twitter and bogus blogs to advance its case.

In a rambling nine-page letter (pdf) to the chairs of the House and Senate telecommunications committees this week, DCA chief Sophia Bekele outlines a series of “corruption” claims against rival .africa applicant UniForum.

DCA and UniForum are both applying for .africa. UniForum, per ICANN rules, has the support of the African Union and over 60% of the national governments in Africa. DCA has no support.

As far as I can tell, DCA thinks the way the African Union went about picking a favored applicant for .africa was “corrupt” but the letter needs to be read several times in order to even begin to figure out what the allegations are.

The allegations seem to stretch back to 2011, when the AU publicly stated that it did not support DCA‘s claims to .africa, and that it had opened up an Expressions of Interest process to pick a preferred registry.

At the time, an organization called AfTLD, which represents African ccTLD operators, said it was preparing a bid for .africa. This bid later morphed into the UniForum bid.

According to information in Bekele’s letter, the AU wanted an experienced, Africa-based registry operator to run the TLD, and UniForum, which runs South Africa’s .za ccTLD, was the only qualified candidate.

DCA goes on to say that Vika Mpisane, who was both chair of AfTLD and CEO of .za policy overseer ZADNA, worked within AfTLD to have UniForum put forward as its preferred applicant for .africa.

The AU Commission, at the conclusion of its tender process, decided to support the UniForum proposal.

So what’s DCA’s beef?

Where exactly is the alleged corruption, according to DCA?

It’s almost impossible to tell from Bekele’s letter, which seems to deliberately confuse the process AfTLD used to back UniForum and the process the AU Commission used to select UniForum.

By DCA’s maddening logic, if Mpisane used his influence as chair of AfTLD to push for AfTLD to support UniForum’s bid, that means the AU Commission’s subsequent tender process was somehow corrupt.

It makes no sense to me, and I doubt it will make any sense to the dozens of US Congressmen DCA has carbon-copied on the letter.

My understanding is that DCA didn’t even bother to respond to the AU Commission’s tender anyway.

The second main prong of DCA’s new attack concerns the fact that UniForum’s bid for .africa is not a “Community” application, as defined under ICANN’s rules.

Again, DCA attempts to confuse the reader by conflating the normal everyday use of the word “community” with the special meaning of “Community” in the new gTLD program.

Bekele writes (emphasis removed):

UniForum contrived to obtain a highly valuable endorsement for a geographic name string under the pretext that it would be submitting an application on behalf of the African Community, but after obtaining the endorsement from the African Union Commission, not only failed to prepare and submit a Community TLD application for .Africa, but also failed, rather deliberately, to acknowledge the same African Community in its application that was submitted to ICANN for the .Africa gTLD name. DCA Trust believes that this was a very serious infraction on the part of UniForum ZA Central Registry.

Of course no applicant was obliged to submit a big-C Community application under ICANN’s rules, even if their gTLD purports to represent a small-c community.

Community applications are just a technicality of the ICANN program, designed to give advantages to applicants that truly do have the support of a community. There’s no need to take advantage of the mechanism if you’re applying for a geographic string and have the necessary government support.

Note also that DCA did not apply as a Community applicant either.

What does DCA want from Congress?

DCA is based in Mauritius. It appears to be complaining to the US Congress due to the US’ special oversight relationship with ICANN, and because its complaints to African governments have fallen on deaf ears.

It wants Congressional oversight of the new gTLD program, through the appointment of a special Ombudsman.

The letter says (again, emphasis removed):

We are hereby appealing directly to the United States Senate as the Upper House of the United States Congress, its Judiciary Committee, and other important Congressional committees that have a relevant stake in a successful outcome of the new gTLD process; to give the necessary approval and official impetus for the establishment of a new gTLD Program Ombudsman that would handle and look into different forms of grievances reported by new gTLD applicants; and investigate any forms of alleged irregularities and acts of illegality committed by applicants, especially of the sort that DCA Trust has outlined against its direct competitor for the .Africa gTLD, UniForum ZA Central Registry.

ICANN already has an Ombudsman, of course, Chris LaHatte. DCA complained to him late last year about two perceived conflicts of interest on the ICANN board of directors.

The complaint was dismissed last December because DCA was unable to provide LaHatte with any information about any improper actions.

LaHatte did however ask Bekele to simmer down the tone of her attacks, which she “readily agreed to”.

More fake identities?

Almost as an aside, I noticed today that a lot of similar-looking Twitter accounts (pictured) have been tweeting links with the hashtag #dotafrica this week.

The accounts all appear to have been created on Monday, using silhouette-based avatars, and have tweeted the same stuff at roughly the same time.

Is this more DCA astroturfing?

Bekele was caught out using a fake identity on the AfrICANN mailing list a few months ago.

Two of the “news blogs” these Twitter accounts have been linking to, domainingafrica.com and domainnewsafrica.com, were originally registered on November 21 2011, before disappearing behind Whois privacy last June.

The original registrant of both? Why, it’s Sophia Bekele.

New ICANN chief pours cold water on new gTLD trademark protection demands

Kevin Murphy, September 20, 2012, Domain Policy

Some of the enhanced trademark protection mechanisms being discussed currently by the IP lobby seem unlikely to be adopted by ICANN any time soon, if a response to Congress from new CEO Fadi Chehadé is any guide.

In a letter published tonight, Chehadé appears to rule out both the inclusion of ‘brand+keyword’ records in the Trademark Clearinghouse and an extension of the Trademark Claims service beyond 60 days.

These are two of the common demands to emerge recently from ICANN’s Business Consituency, Intellectual Property Constituency, and the so-called “brand summit” proposal.

The Chehadé letter was sent yesterday to the chairs and ranking members of the Judiciary Committees of both the House and Senate, in response to their August 7 letter.

On extending the Trademark Claims service — which alerts trademark owners when somebody registers a domain exactly matching their mark — beyond the current 60 days, he wrote:

For the first round of new gTLDs, ICANN is not in a position to unilaterally require today an extension of the 60-day minimum length of the trademark claims service. The 60-day period was reached through a multi-year, extensive process with the ICANN community. One reason for this is that there are existing IP Watch services that address this needs. Those community members that designed the Trademark Claims process were cognizant of existing protections and sought to fill gaps, not replace existing services and business models.

While this obviously does not rule out an extension of Trademark Claims, it’s pretty clear from the letter that ICANN has no plans to do so without some form of community consent.

On the matter of brand+keyword protections, seen by the trademark community as a crucial component of a strong anti-cybersquatting regime, Chehadé wrote:

It is important to note that the Trademark Clearinghouse is intended be a repository for existing legal rights, and not an adjudicator of such rights or creator of new rights. Extending the protections offered through the Trademark Clearinghouse to any form of name (such as the mark + generic term suggested in your letter) would potentially expand rights beyond those granted under trademark law and put the Clearinghouse in the role of making determinations as to the scope of particular rights.

He goes on to say that providing enhanced rights protection mechanisms is optional for new gTLD registries and may be one way that they can competitively differentiate themselves.

Indeed, large applicants such as Donuts, Uniregistry and Google say they will offer RPMs that go above and beyond what is required by ICANN.

Extended trademark claims and the brand+keyword protections are two of the changes to the current proposed mesh of mechanisms that the trademark community has found common ground on recently.

At the Melbourne IT trademark summit in Washington DC earlier this week, these two areas were among those that appeared to have the most consensus.

However, applicants for mass-market gTLDs are fervently opposed to changes being made to the Applicant Guidebook at this late stage.

Jon Nevett, co-founder of Donuts, said at the Melbourne IT event that “the Applicant Guidebook at this point should be deemed closed”.

He pointed out that, having paid ICANN about $350 million in application fees, applicants should be considered contracted parties and have their expectations respected.

Congressmen quiz ICE over domain seizures

Kevin Murphy, September 3, 2012, Domain Policy

Three US members of Congress have expressed “deep concern” over the alleged lack of due process followed when the Department of Homeland Security seizes domain names.

Rep. Zoe Lofgren, Rep. Jared Polis and Rep. Jason Chaffetz quiz DHS (pdf) about the methods employed by the Immigration and Customs Enforcement agency in its Operation In Our Sites.

The Congressmen’s letter highlights the case of the hip-hop web site Dajaz1.com, which had its .com seized by ICE and then returned.

“Much of Dajaz1’s information was lawful,” the letter reads. “Despite this, DHS and the Department of Justice suppressed this website for more than a year.”

The Congressmen say that “if a website’s domain is seized, it needs to be given meaningful due process that comports to the US Constitution and US law”.

Operation In Our Sites has seen ICE seize hundreds of domains — mainly .coms accused of copyright infringement — from US-based registries including Verisign since late 2010.

Despite the relatively small number of domains seized, there have been a number of controversies.

Notably, the Spanish TV download web site RojaDirecta, which lost its .com and .org domains despite being ruled legal by a court in its home nation, last month had them returned to it by ICE.

Congressmen say new gTLDs need more comments

Kevin Murphy, August 8, 2012, Domain Policy

Senior members of the US Congress have asked ICANN to prove that it’s giving the internet community enough opportunity to comment on its 1,930 new gTLD applications.

A letter from the chairs and ranking members of the House and Senate judiciary committees sent to ICANN yesterday basically implies rather heavily that, again, ICANN’s new gTLD program outreach sucks.

Sens. Leahy and Grassley, and Reps. Smith and Conyers write:

many members of the public outside the ICANN community are unaware that the New gTLD program is underway. Of those who are aware, few know about the public comment process or comprehend that their opportunity to participate in this forum is scheduled to end in less than a week.

Probably not coincidentally, the letter comes soon after requests for more time to comment from the Association of National Advertisers and the Intellectual Property Constituency.

The IPC wants another 30-45 days added to the comment period, which is currently set to close — at least for comments that will be forwarded to evaluators — this Sunday.

The Leahy letter highlights the need for comment on “potentially sensitive names like ‘.church’, ‘.kids’, and ‘.sucks'”, which should be a cause for concern for at least seven gTLD applicants.

Given who’s pulling the strings here, it’s not surprising that the letter also highlights the demands from IP interests for stronger rights protection mechanisms, such as a permanent Trademark Clearinghouse service.

They write:

ICANN’s current policy only requires the Clearinghouse to be available for the first 60 days after a registry launches. Moreover, the Clearinghouse will only give notice when someone registers a website that is identical to a trademark; not when the website contains the trademark in a varied form.

As an example, this means that a nonprofit such as the YMCA will receive notice only if a user registers a website such as www.yrnca.give or www.ymca.charity within the first 60 days of the “.give” or” .charity” registry. The YMCA would not receive notice if a person registers those names after 60 days, or if someone registers a closely related name such as www.ymcaDC.charity.

(To which I add, as an aside: and what if Intel wants to register www.buymcafee.shop?)

I think the Congressmen/ANA/IPC have a point, anyway, at least about the lack of commenting from people outside the tightly knit ICANN community.

A lot of data was released on Reveal Day, and much more has been released since.

There are 1,930 new gTLD applications.

The public portions weigh in at almost 400 MB in HTML format and generally run to between 15,000 and 50,000 words apiece.

The 20,000 published application attachments (which MD5 hashing reveals comprise close to 3,000 unique files) are currently taking up about 6 GB of space on the DI PRO server (where subscribers can cross-reference them to see which files show up in which applications).

It’s a lot to read.

That must be at least part of the reason there hasn’t been a single community-based objection comment about Google’s single-registrant .blog application yet.

For me, that’s the benchmark as to whether anyone in the real world is paying attention to this program.

I mean, seriously: no bloggers are concerned about Google using .blog as an exclusive promo tool for its third-rate blogging platform?

What’s worrying the Congressmen is that ICANN’s expensive Independent Objector is not allowed to object to an application unless there’s been at least one negative comment about it

The IO can file community-based objections on behalf of those who cannot afford to do it themselves, but it’s not at all clear yet what the cut-off date for the IO to discover these comments is.

Hopefully, when ICANN reveals its proposed evaluation timetable this week, some of these questions will be answered.