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Economist would sue ICANN if it publishes private emails

Kevin Murphy, February 14, 2018, Domain Policy

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

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

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

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

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

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

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

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

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

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

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

The full DIDP request and response can be found here.

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

dotgay lawyer insists it is gay enough for .gay gTLD

Kevin Murphy, February 6, 2018, Domain Policy

What do Airbnb, the Stonewall riots and the 2016 Orlando nightclub shooting have in common?

They’re all cited in a lengthy, somewhat compelling memo from a Yale law professor in support of dotgay LLC’s argument that it should be allowed to proceed with its .gay gTLD application unopposed by rival applicants.

The document (pdf), written by William Eskridge, who has decades of publications on gay rights under his belt, argues that dotgay’s Community Priority Evaluation and the subsequent review of that evaluation were both flawed.

At the crux of the dispute is whether the word “gay” can also be used to describe people who are transgender, intersex, and “allied” straight — dotgay says it can, but the Economist Intelligence Unit, which carried out the CPE, disagreed.

dotgay scored 10 out of 16 points on its CPE, four shy of a passing grade. An acceptance of dotgay’s definition of the “gay” community could have added 1 to 4 extra points to its score.

The company also lost a point due to an objection from a gay community center, despite otherwise broad support from gay-oriented organizations.

Eskridge spends quite a lot of time on the history of the word “gay”, from Gertrude Stein and Cary Grant using it as a wink-wink code-word in less-tolerant times, via the 1969 Stonewall riots, to today’s use in the media.

The argument gets a bit grisly when it is pointed out that some of the 49 people killed in the 2016 mass shooting at the Pulse nightclub in Orlando, Florida — routinely described as a “gay” club in the media — were either transgender or straight.

My research associates and I read dozens of press and Internet accounts of this then-unprecedented mass assault by a single person on American soil. Almost all of them described Pulse as a “gay bar,” the situs for the gay community. But, like the Stonewall thirty-seven years earlier, Pulse was a “gay bar” and a “gay community” that included lesbians, bisexual men and women, transgender persons, queer persons, and allies, as well as many gay men.

Eskridge argues that EIU erred by applying an overly strict definition of the applied-for string with dotgay, but not with successful community applicants for other strings.

For example, he argues, a manufacturer of facial scrubs would qualify for a “.spa” domain, and Airbnb and the Orient Express train line would qualify for “.hotel” domains under that applicant’s definition of its community, even though it could be argued that they do not fit into the narrow categories of “spas” and “hotels”.

Similarly, a transgender person may not consider themselves “gay” and a straight person certainly would not, but both might feel a part of the broader “gay community” when they get shot at a gay nightclub.

It’s an unpleasant way to frame the argument, but in my view it’s compelling nevertheless.

Eskridge also thinks that dotgay should have picked up an extra point or two in the part of the CPE dealing with community support.

It dropped one point there because the Q Center, a community center for LGBTQ people in Portland, Oregon, sent a letter objecting to the dotgay application (an objection apparently later revoked, then reinstated).

Eskridge spend some time questioning the Q Center’s bona fides as a big-enough organization to warrant costing dotgay a point, noting that it was the only member of a 200-strong umbrella organization, CenterLink, to object. CenterLink itself backed the bid.

He then goes on to cite articles seemingly showing that Q Center was in the midst of some kind of liberal paranoia meltdown — accused of racial insensibility and “transphobia” — and allegations of mismanagement at about the same time as it was objecting to dotgay’s application.

He also insinuates that Q’s base in Portland is suspicious because it’s also where rival applicant Top Level Design is based.

In summary, Eskridge reckons the EIU CPE and FTI Consulting’s subsequent investigation were both flimsy in their research, unfairly applying criteria to .gay that they did not apply to other strings, and that dotgay should have picked up enough points to pass the CPE.

It’s important to remember that this is not a case of ICANN getting decide whether the gTLD .gay gets to exist — it’s going to exist one way or the other — but rather whether the winning registry is selected by auction or not.

If dotgay wins either by getting another CPE or winning the auction then .gay will be restricted to only vetted members of the “gay” community. This could mean less homophobic abuse in .gay domains but probably also less opportunity for self expression.

If it goes to Top Level Design, MMX or Donuts, it will be open to all comers. That could increase cyber-bulling with .gay domains, but would remove barriers to entry to those who would otherwise be excluded from registering a domain.

ICANN has had .gay on hold for years while the dispute over the CPE has worked itself out, and it now has a piece of paper from FTI declaring the result hunky-dory. I doubt there’s any appetite to reopen old wounds.

My feeling is that we’re looking at an auction here.

CPE probe: “whitewash” or “fig leaf”?

Kevin Murphy, January 31, 2018, Domain Policy

A few weeks ago, when I was reporting the conclusions of a probe into ICANN’s new gTLD program, I wrote a prediction on a piece of paper and placed it into a sealed envelope.*

I wrote: “They’re gonna call this a whitewash.”

And I was correct! Ta-dah! I’m here all week.

The lawyer for applicants for .music and .gay gTLDs has written to ICANN to complain that a purportedly independent review of the Community Evaluation Process was riddled with errors and oversights and should not be trusted.

In a letter on behalf of dotgay LLC, Arif Ali calls the report a “whitewash”. In a letter on behalf of DotMusic, he calls it a “fig leaf”.

Both companies think that the CPE probe was designed to give ICANN cover to proceed with auctions for five outstanding gTLD contention sets, rather than to get to the bottom of perceived inconsistencies in the process.

Both of Ali’s clients applied for their respective gTLDs as “community” applicants, trying to avoid auctions by using the Community Priority Evaluation process.

During their CPEs, both carried out by the Economist Intelligence Unit, neither applicant scored highly enough to win the exclusive right to .gay or .music, meaning the next stage was to auction the strings off to the highest bidder.

After repeated complaints from applicants and an Independent Review Process finding that ICANN lacked transparency and that staff may have had inappropriate influence over the EIU, ICANN hired FTI Consulting to look into the whole CPE process.

FTI’s report was finally delivered late last year, clearing ICANN on all counts of impropriety and finding that the EIU’s evaluations had been consistent across each of the applications it looked at.

The remaining gTLDs affected by this are .music, .gay, .hotel, .cpa, and .merck.

ICANN’s board of directors is due to meet to discuss next steps this weekend, but Ali says that it should “critically evaluate the [FTI] Report and not accept its wholesale conclusions”. He wrote, on behalf of DotMusic:

The report reveals that FTI’s investigation was cursory at best; its narrow mandate and evaluation methodology were designed to do little more than vindicate ICANN’s administration of the CPE process.

It is evident that FTI engaged in a seemingly advocacy-driven investigation to reach conclusions that would absolve ICANN of the demonstrated and demonstrable problems that afflicted the CPE process.

Among the applicants’ list of complaints: their claim that FTI did not interview affected applicants or take their submissions seriously, and the fact that ICANN was less than transparent about who was conducting the probe and what its remit was.

The same letter quotes ICANN chair Cherine Chalaby, then vice-chair, saying in a January 2017 webinar that he had observed inconsistencies in how the CPEs were carried out; inconsistencies FTI has since found did not occur.

That should be enough to provoke discussion when the board meets to discuss this and other issues in Los Angeles on Saturday.

* I didn’t actually do this of course, I just thought about it, but you get my point.

.music and .gay possible in 2018 after probe finds no impropriety

Kevin Murphy, January 2, 2018, Domain Policy

Five more new gTLDs could see the light of day in 2018 after a probe into ICANN’s handling of “community” applications found no wrongdoing.

The long-running investigation, carried out by FTI Consulting on ICANN’s behalf, found no evidence to support suspicions that ICANN staff had been secretly and inappropriately pulling the strings of Community Priority Evaluations.

CPEs, carried out by the Economist Intelligence Unit, were a way for new gTLD applicants purporting to represent genuine communities to avoid expensive auctions with rival applicants.

Some applicants that failed to meet the stringent “community” criteria imposed by the CPE process appealed their adverse decisions and an Independent Review Process complaint filed by Dot Registry led to ICANN getting crucified for a lack of transparency.

While the IRP panel found some hints that ICANN staff had been nudging EIU’s arm when it came to drafting the CPE decisions, the FTI investigation has found:

there is no evidence that ICANN organization had any undue influence on the CPE Provider with respect to the CPE reports issued by the CPE Provider or engaged in any impropriety in the CPE process.

FTI had access to emails between EIU and ICANN, as well as ICANN internal emails, but it did not have access to EIU internal emails, which EIU declined to provide. It did have access to EIU’s internal documents used to draft the reports, however.

Its report states:

Based on FTI’s review of email communications provided by ICANN organization, FTI found no evidence that ICANN organization had any undue influence on the CPE reports or engaged in any impropriety in the CPE process. FTI found that the vast majority of the emails were administrative in nature and did not concern the substance or the content of the CPE results. Of the small number of emails that did discuss substance, none suggested that ICANN acted improperly in the process.

FTI also looked at whether EIU had applied the CPE rules consistently between applications, and found that it did.

It also dug up all the sources of information EIU used (largely Google searches, Wikipedia, and the web pages of relevant community groups) but did not directly cite in its reports.

In short, the FTI reports very probably give ICANN’s board of directors cover to reopen the remaining affected contention sets — .music, .gay, .hotel, .cpa, and .merck — thereby removing a significant barrier to the gTLDs getting auctioned.

If there were to be no further challenges (which, admittedly, seems unlikely), we could see some or all of these strings being sold off and delegated this year.

The probe also covered the CPEs for .llc, .inc and .llp, but these contention sets were resolved with private auctions last September after applicant Dot Registry apparently decided it couldn’t be bothered pursuing the ICANN process any more.

The FTI’s reports can be downloaded from ICANN.

.kids auction is off

Kevin Murphy, December 12, 2017, Domain Registries

ICANN has postponed the planned auction of the .kid(s) gTLDs after an appeal from one of the applicants.

The last-resort auction had been penciled in for January 25, and there was a December 8 deadline for the three participants to submit their info to the auctioneer.

But DotKids Foundation, the shallowest-pocketed of the three, filed a Request for Reconsideration last Wednesday, asking ICANN to put the contention set back on hold.

The cancellation of the January auction appears to be to give ICANN’s board of directors time to consider the RfR under its usual process — it has not yet ruled on it.

DotKids and Amazon have applied for .kids and Google has applied for .kid. A String Confusion Objection won by Google put the two strings in the same contention set, meaning only one will eventually go live.

DotKids comprehensively lost a Community Priority Evaluation, which would negate an auction altogether, but it thinks the CPE got it wrong and wants to be treated the same way as other gTLD applicants whose CPE results are currently under review.

Reconsideration requests take between 30 and 90 days to process, and they rarely go the way of the requester, so the delay to the auction will likely not be too long.