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.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.

.music and .gay CPE probe could end this month

Kevin Murphy, June 5, 2017, Domain Policy

An ICANN-commissioned investigation into the fairness of its Community Priority Evaluation process for new gTLDs could wind up before the end of June.

In an update Friday, ICANN also finally revealed who is actually conducting the probe, which has been slammed by affected applicants for being secretive.

A tentative timeline sketched out in the update means applicants for gTLDs including .gay and .music could find their applications closer to release from limbo in just a few weeks.

ICANN revealed that FTI Consulting’s Global Risk and Investigations Practice and Technology Practice have been looking into claims ICANN staff meddled in the Economist Intelligence Unit’s supposedly independent CPE reviews for the last several months.

FTI is reviewing how ICANN staff interacted with the EIU during the CPE processes, how the EIU conducted its research and whether the EIU applied the CPE criteria uniformly across different gTLDs.

ICANN said that FTI finished collected material from ICANN in March and hopes to have all the information it has asked the EIU for by the end of this week.

It could deliver its findings to ICANN two weeks after that, ICANN said.

Presumably, there would be little to prevent ICANN publishing these findings very shortly thereafter.

ICANN has been harangued by some of the applicants for .music, .gay, hotel, .cpa, .llc, .inc, .llp and .merck, all of which have been affected by controversial CPE decisions and have been delayed by the investigation, for months.

.gay, .music and others in limbo as ICANN probes itself

Kevin Murphy, May 8, 2017, Domain Policy

Several new gTLD applicants have slammed ICANN for conducting an investigation into its own controversial practices that seems to be as opaque as the practices themselves.

Seven proposed new gTLDs, including the much-anticipated .music and .gay, are currently trapped in ICANN red tape hell as the organization conducts a secretive probe into how its own staff handled Community Priority Evaluations.

The now broad-ranging investigation seems have been going on for over six months but does not appear to have a set deadline for completion.

Applicants affected by the delays don’t know who is conducting the probe, and say they have not been contacted by anyone for their input.

At issue is the CPE process, designed to give genuine “community” gTLD applicants a way to avoid a costly auction in the event that their choice of string was contested.

The results of the roughly 25 CPE decisions, all conducted by the independent Economist Intelligence Unit, were sometimes divergent from each other or just baffling.

Many of the losers complained via ICANN’s in-house Requests for Reconsideration and then Independent Review Process mechanisms.

One such IRP complaint — related to Dot Registry’s .inc, .llc, .llp applications — led to two of the three-person IRP panel deciding last July that ICANN had serious questions to answer about how the CPE process was carried out.

While no evidence was found that ICANN had coached the EIU on scoring, it did emerge that ICANN staff had supplied margin notes to the supposedly independent EIU that had subsequently been incorporated into its final decision.

The IRP panel majority wrote that the EIU “did not act on its own in performing the CPEs” and “ICANN staff was intimately involved in the process”.

A month or so later, the ICANN board of directors passed a resolution calling for the CEO to “undertake an independent review of the process by which ICANN staff interacted with the CPE provider”.

Another month later, in October, the Board Governance Committee broadened the scope of the investigation and asked the EIU to supply it with documents it used to reach its decisions in multiple controversial CPE cases.

A couple of weeks ago, BGC chair Chris Disspain explained all this (pdf) to the applicants for .music, .gay, hotel, .cpa, .llc, .inc, .llp and .merck, all of which are affected by the delay caused by the investigation.

He said that the investigation would be completed “as soon as practicable”.

But in response, Dot Registry and lawyers for fellow failed CPE applicant DotMusic have fired off more letters of complaint to ICANN.

(UPDATE: Dot Registry CEO Shaul Jolles got in touch to say his letter was actually sent before Disspain’s, despite the dates on the letters as published by ICANN suggesting the opposite).

Both applicants note that they have no idea who the independent party investigating the CPEs is. That’s because ICANN hasn’t identified them publicly or privately, and the evaluator has not contacted the applicants for their side of the story.

DotMusic’s lawyer wrote (pdf):

DotMusic’s rights are thus being decided by a process about which it: (1) possesses minimal information; (2) carried out by an individual or organization whose identity ICANN is shielding; (3) whose mandate is secret; (4) whose methods are unknown; and (5) whose report may never be made public by ICANN’s Board.

He added, pointedly:

The exclusion of directly affected parties from participation eerily reproduces the shortcomings of the EIU evaluations that are under scrutiny in the first place.

Dot Registry CEO Shaul Jolles, in his letter (pdf), quoted Disspain saying at a public forum in Copenhagen this March that a blog post addressing the concerns had been drafted and would be published “shortly”, but wasn’t.

He suggested the investigation is “smoke and mirrors” and, along with DotMusic, demanded more information about the investigator’s identity and methods.

It does strike me as a looking a bit like history repeating itself: ICANN comes under fire for non-transparently influencing a supposedly independent review and addresses those criticisms by launching another non-transparent supposedly independent review.

No matter what I feel about the merits of the “community” claims of some of these applicants, it has been over five years now since they submitted their applications and the courtesy of transparency — if closure itself its not yet possible — doesn’t seem like a great deal to ask.

Spurned applicant crowd-funding to fight ICANN for .gay gTLD

Kevin Murphy, August 26, 2016, Domain Registries

The community-driven applicant for .gay is attempting to raise hundreds of thousands of dollars via crowd-funding to challenge a series of adverse decisions that look set to lock it out of running the gTLD.

Alongside the fundraising, dotgay LLC has launched an extraordinary broadside at its frustrators, accusing ICANN of “discrimination” and rival applicants of trying to “exploit” the gay community.

The company wants to raise $360,000 via this Generosity.com page, “to challenge decisions that have stalled community efforts for .GAY.”

Although the campaign has been running for 23 days, so far only three people (including a former employee) have donated a total of $110.

Given the vast number of LGBTQIA organizations that have lent their support to dotgay, I can only assume a lack of publicity is to blame for the $359,890 shortfall.

A five-minute video announcing the campaign has been on YouTube since August 3, but at time of writing has only been viewed 100 times.

In the video, embedded below, dotgay says that only it can properly represent the LGBTQIA (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Ally) community.

ICANN is dividing the community by accepting the Economist Intelligence Unit’s decision that the company should fail its Community Priority Evaluation (largely because the TQIA are not necessarily “gay”), the video voiceover suggests.

This is an old game that highlights how LGBTQIA continue to be disadvantaged and discriminated against. If .gay is not recognized as a community domain, ICANN will simply auction the namespace to the highest bidder and pocket the proceeds. If ICANN assigns to the right to operate the registry for .gay to a company seeking to exploit it for profit — very possibly without community participation in policy development for the domain, or taking into consideration LGBTQIA interests and concerns — the community will have no assurances .gay will be s safe space on the internet… In the end, ICANN and the three other applicants for the .gay domain have shown no respect for the global gay community’s wishes.

Neither the video not the crowdfunding page specify exactly what the $360,000 would be used for.

However, in order to challenge the CPE decision(s) against it, a lawsuit or an Independent Review Process — either of which could wind up costing over a million dollars — would be the most usual avenues of attack.

Perhaps eager to avoid the possibility of a legal challenge, the three other applicants — Minds + Machines, Rightside and Top Level Design — this week wrote to ICANN to demand a hasty resolution of the long-running saga.

Writing on behalf of all three, Rightside VP Statton Hammock wrote (pdf):

It has been more than FOUR years since the Applicants filed their applications for .GAY. Since this time long ago, dotGay has filed THREE community objections, one against each of the Applicants; TWO community priority applications, ONE Independent Review Panel request (later withdrawn) and ONE motion for reconsideration with the BGC which has been carefully considered by the members of that Committee and found insufficient to be granted. In total dotGay has had SIX “bites of the apple” and has been unsuccessful each time… It is simply time for the Board to affirm these decisions and allow the .GAY applications to proceed to contention set resolution.

The ICANN board had been due to consider dotgay’s latest Request for Reconsideration at at a meeting August 9, but the agenda item was removed, the letter notes. The applicants called on the board to meet again soon to make a decision.

After the board processes the RfR, .gay would presumably go to auction. Whether the auction resulted in ICANN pocketing the cash (as dotgay claims) or being distributed between the three losing applicants remains to be seen.

Whether the auction is public or private, the crowdfunding campaign strongly suggests that dotgay does not currently have the resources to win.

Centuries-old companies both fail community gTLD test

Kevin Murphy, August 11, 2016, Domain Policy

Two companies called Merck have separately failed ICANN Community Priority Evaluations, meaning the new gTLD .merck could be the first dot-brand to head to ICANN auction.

Merck KGaA applied for .merck for the Merck Group, a German chemicals company founded — staggeringly — in 1668, the same year Newton built the world’s first reflecting telescope.

Merck Registry Holdings Inc applied for the same string on behalf of Merck & Co, which was originally the US subsidiary of the German outfit. The US firm was seized by the US government and subsequently became independent during World War I.

Despite the substantial pedigrees of these multi-billion dollar businesses, neither were able to muster up the required 14/16 points to be considered a “Community” under ICANN CPE standards.

The German firm scored 11 points, the American 9.

The main failing in both evaluations, which were conducted by the Economist Intelligence Unit, was the existence of the other.

Both applicants defined their communities as their own companies and lost points because “.merck” did not uniquely identify all legitimate users of the string.

Both panels marked the applications down for “over-reaching substantially beyond the community” by not including the rival company in its community definition.

The US company also lost a couple of points for failing to come up with a list of registration restrictions.

As neither company has passed CPE, the next step of the ICANN process would have them attempt to resolve the contention set privately. Failing that, they would go to an ICANN last-resort auction.

Another possibility, an increasingly favored choice among CPE losers, would be an interminable series of ICANN process appeals and lawsuits.

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