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Iran rep reported to ICANN Ombudsman, again

Kevin Murphy, August 3, 2017, Domain Policy

Iran’s Governmental Advisory Committee representative has found himself reported to ICANN’s Ombudsman for alleged bad behavior for the second time in just a few months.

Outspoken GACer Kavouss Arasteh was referred to Ombudsman Herb Waye by consultant John Laprise, according to posts on mailing lists and social media.

Both men serve on an ICANN volunteer working group that is looking at matters related to the jurisdiction in which ICANN operates.

The group’s discussions have recently become extremely fractious, largely due to a series of combative emails and teleconference interventions from Arasteh.

Laprise eventually said on the list that Arasteh was being a “bad actor”, adding that “his tone, manner, and insinuations are detrimental and indeed hostile to the process.”

He later said on Facebook that he had reported the matter to the Ombudsman.

The spat centered on an August 1 teleconference in which members of the so-called WS2-Jurisdiction working group heard a briefing from ICANN lawyers on the Office of Foreign Assets Control, which oversees international trade sanctions in the US.

As well as enforcing sanctions against countries including Iran, OFAC maintains a list of people and organizations, many of them Iranian, that American companies are forbidden from doing business with.

It impacts ICANN because the organization in its normal course of business is often obliged to deal with ccTLD registries in sanctioned nations, for which it needs to apply for OFAC licenses.

Arasteh initially complained multiple times that the meeting had been rescheduled for August 1 — apparently with his initial consent — which is a national holiday in his home nation of Switzerland.

He also fought for ICANN lawyers to be asked to provide, at very short notice, a written briefing paper on OFAC, answering the group’s questions, prior to the teleconference taking place.

On neither issue did he receive support from fellow volunteers, something for which he seemed to blame group chair Greg Shatan, an intellectual property lawyer.

Arasteh’s criticisms of an increasingly weary Shatan sometimes seemed to border on conspiracy theory. All other working group members who publicly expressed an opinion said Shatan was doing a fine job herding this particular set of cats.

During the teleconference itself, Arasteh ate up the first five or six minutes of allotted time with a rambling, barely comprehensible complaint about the format of the meeting, compelling Shatan to eventually ask for his mic to be cut off.

In emails over the next 48 hours, the GAC rep continued his tirade against what he perceives as Shatan’s bias against him and called again for ICANN legal to provide a formal set of written answers to questions.

Some fellow group members believe Arasteh’s defensive and confrontational approach is merely a clash of cultures between his usual style of government diplomacy and the staid, tediously polite style of ICANN working group interactions.

Others are less charitable.

Still, the question of whether the latest WG friction has infringed any of ICANN’s “Expected Standards of Behavior” now appears to be in the hands of the Ombudsman.

Arasteh was also reported to Waye back in May, when he accused the chairs of a different ICANN working group of trying to exclude governmental voices from new gTLD policy-making by scheduling teleconferences at times he found inconvenient.

Waye subsequently reported that the complaint had been resolved between the parties.

In June, he said he was proactively monitoring a third working group mailing list after receiving allegations of harassment. That was unrelated to Iran.

Governments slammed for overreach as Amazon wins gTLD appeal

Kevin Murphy, July 19, 2017, Domain Policy

Amazon has won its appeal against the rejection of its .amazon gTLD application, in a ruling that criticizes ICANN for giving too much deference to government advice.

The Independent Review Process panel’s 2-to-1 ruling, delivered July 11 and published this week, means that .amazon and its Chinese and Japanese translations has been un-rejected and ICANN will have to consider approving it again.

The ruling (pdf) turns on the idea that ICANN’s board of directors rejected the gTLD based on nothing more than the groundless objections of a few South American governments.

Amazon’s applications were rejected three years ago when ICANN accepted the consensus advice of its Governmental Advisory Committee.

That advice, which had no attached rationale, had come largely at the behest of Brazil and Peru, two countries through which the Amazon river flows.

At issue was the word “Amazon”, which the governments protested matched the name of an important geographic region extending into several countries.

But the string was not protected by ICANN’s new gTLD program rules because it does not match the name of an administrative region of any country.

Regardless, Brazil and Peru said that to give .amazon to Amazon would prevent it being used in future by citizens of the informal South American region.

GAC consensus was reached only after the US government, for political reasons connected to the then-recent announcement of the IANA transition, decided to withdraw its objection to the advice.

Consensus, under GAC rules means simply that no one government objects to the proposed advice. It does not indicate unanimity.

But at no point in the pubic record of discussions within the GAC or ICANN board did anyone give any substantial public policy reasons for the objection, the IRP panel has now found.

Global Domains Division chief Akram Atallah testified before the panel that consensus GAC advice sets “too high for the Board to say no.”

It seems ICANN sometimes just assumes that GAC advice by default is rooted in sound public policy, even when that is not the case.

Brazil and Peru’s objections “do not appear to be based on well-founded public policy concerns that justify the denial of the applications” the panelists wrote.

The panel wrote:

We conclude that GAC consensus advice, although no reasons or rationale need be given, nonetheless must be based on a well-founded public interest concern and this public interest basis must be ascertained or ascertainable from the entirety of the record…

the Board cannot simply accept GAC consensus advice as conclusive. The GAC has not been granted a veto under ICANN’s governance documents.

So, while the GAC was under no obligation to state its reasons for objecting to .amazon, the ICANN board was obliged to state its reasons for accepting this advice beyond just “the GAC made us do it”.

As somebody who spent much of 2011 arguing that the GAC new gTLD veto was a bad idea, it’s nice to see the panel agree with me.

The GAC itself also erred by refusing to consider Amazon’s arguments in favor of its application, the IRP panel’s majority found.

Peru had publicly claimed that the string “Amazon” was protected under ICANN rules, which was not true, and Amazon did not have the opportunity to correct the record.

Amazon had also pointed out that the Brazilian oil company Ipiranga was granted its application for .ipiranga, despite its name matching the name of a Brazilian river apparently so important that it is referred to in the Brazilian national anthem.

However, the IRP panel decided that because ICANN’s board had not taken any action on .ipiranga, there was no basis for it to consider whether Amazon had been unfairly subject to different treatment.

In conclusion, this is what the panel has sent to the board:

The Panel recommends that the Board of ICANN promptly re-evaluate Amazon’s applications in light of the Panel’s declarations above. In its re-evaluation of the applications, the Board should make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications. Further, if the Board determines that the applications should not proceed, the Board should explain its reasons supporting that decision. The GAC consensus advice, standing alone, cannot supplant the Board’s independent and objective decision with a reasoned analysis.

It seems Amazon’s chances of having .amazon approved have improved. If ICANN wants to reject the applications again it is going to have to come up with some good reasons, some good reasons that possibly do not exist.

The panel also ordered ICANN to reimburse Amazon for the $163,045.51 it spent on the IRP.

US “threatens” Costa Rica over Pirate Bay domains

Kevin Murphy, June 16, 2017, Domain Policy

The US government has been threatening to “close down” Costa Rica’s .cr registry over its refusal to take down a Pirate Bay domain name, according to the registry.

Representatives of the US embassy in Costa Rica have been badgering NIC.cr to take down thepiratebay.cr since 2015, according to a letter from Pedro León Azofeifa, president of Academia Nacional de Ciencias, which runs the registry.

The letter claims:

These interactions with the United States Embassy have escalated with time and include great pressure since 2016 that is exemplified by several phone calls, emails and meetings urging our ccTLD to take down the domain, even though this would go against our domain name policies

According to the letter, a US official “has mentioned threats to close our registry, with repeated harassment regarding our practices and operation policies and even personal negative comments directed to our Executive Director”.

The letter was sent to the chair of ICANN’s Governmental Advisory Committee 10 days ago, CC’d to senior ICANN, Costa Rican and US governmental figures, and has been circulated this week in the Latin American domain name community.

The form of the alleged threats to close the registry is not clear, but it should be noted that prior to October 1 last year the US Department of Commerce, via its now-relinquished oversight of ICANN, played a key role in the administration of the DNS root zone.

The Pirate Bay is of course a popular directory of BitTorrent links largely used to disseminate pirated copies of movies and music, much of it American-made.

The site has been TLD-hopping for years, as registries around the world shut down its domains for violations of their own local rules. It has been live on thepiratebay.cr since December 2014, when its Swedish operation was shut down by authorities.

The NIC.cr letter says that its own policies follow international “best practices” and allow it to take down domains when presented with a Costa Rican court order, but that “the pressure and harassment [from the US] to take down the domain name without its proper process and local court order persists”.

The US Department of Commerce even pressured its Costa Rican counterpart to investigate NIC.cr, but that probe concluded that the registry was acting within its procedures, according to the letter.

It’s not the first attempt to get rid of the Pirate Bay this year.

Public Interest Registry in February announced a “UDRP for copyright” proposal that would allow copyright holders to have piracy disputes heard by independent arbitrators. It looked like a way to get unloved thepiratebay.org domain taken down without PIR having to take unilateral action.

That proposal was shelved after an outcry from the industry and civil rights watchdogs.

In April, one of the Pirate Bay’s founders launched a piracy-friendly domain registration service.

Just this week, the European Court of Justice ruled, after seven years of legal fights, that the Pirate Bay infringes copyright, raising the possibility of the site being blocked in more European countries.

The NIC.cr letter is dated June 6. It has not yet been published by ICANN or the GAC.

Country names to finally be released in new gTLDs

Kevin Murphy, May 24, 2017, Domain Policy

It looks like hundreds of domain names matching the names of countries are to finally get released from ICANN limbo.

The ICANN board last week passed a resolution calling for the organization to clear a backlog of over 60 registry requests to start selling or using country and territory names in their gTLDs.

Some of the requests date back to 2014. They’ve all been stuck in red tape while ICANN tried to make sure members of the Governmental Advisory Committee was cool with the names being released.

The result of these three years of pondering is scrappy, but will actually allow some names to hit the market this year.

The new resolution calls for ICANN to “take all steps necessary to grant ICANN approvals for the release of country and territory names at the second-level”, but only “to the extent the relevant government has indicated its approval”.

And that’s the catch.

Some governments, such as the US and UK, don’t care who registers matching names. Dozens of others want to vet each registry request on a case-by-case basis.

The wishes of each government are record in a GAC database.

The only territories to so far give a blanket waiver over their names are: Denmark, Finland, Ireland, the Netherlands, Norway, Sweden, the UK, the USA, Guernsey and Pitcairn.

Almost 70 other countries have said they need to be told when a registry wants to sell a domain matching their name. Ten others give carte blanche to closed dot-brands, but require notification in the case of open gTLDs.

The majority of countries in the world have yet to officially express a preference one way or the other.

Of the roughly 60 new gTLD registries to request country name releases over the last few years, the vast majority are dot-brands. The number of open gTLDs with such requests appears to be in the single figures, and the only ones with mass-market appeal appear to be .xyz and .global.

Iran reported to Ombudsman after new gTLD conspiracy theory

Kevin Murphy, May 17, 2017, Domain Policy

ICANN’s Ombudsman has stepped in to resolve a complaint from the Iranian government that it was being “excluded” from discussions about the next phase of the new gTLD program.

Kavouss Arasteh, Iran’s Governmental Advisory Committee representative, earlier this month accused the leadership of the New gTLD Subsequent Procedures Working Group of deliberately scheduling teleconferences to make them difficult for him to attend.

He said the 0300 UTC timing of a meeting made it “painful” for European volunteers to participate (though it’s 0730 in Tehran).

When WG co-chair Avri Doria said that the time had been selected to avoid clashes with other working groups and declined his request, Arasteh said in an email: “If you insist, I interpret that this is an effort to EXCLUDE GAC TO ATTEND THE PDP.”

In other words, he was accusing the WG leaders of trying to exclude governments from helping to develop the rules of the new gTLD program.

Doria responded that she took the tone of the remarks as “abusive”, adding:

since my motives have been attacked and since I have been accused of trying to prevent GAC participation, I have no choice other than to turn this issue over to the Ombudsman.

The only other alternative I can think of is to accept the fact that I am incapable of co-chairing this group and step down.

Fellow co-chair Jeff Neuman chipped in with a detailed explanation of how, in the global ICANN community, there usually isn’t a time of day that is not inconvenient to at least some volunteers.

(It’s sometimes possible to hear snoring on these calls, but that’s not always due to the time of day.)

Today, Ombudsman Herb Weye responded to Doria’s complaint, saying that it has been “resolved” between the two parties. He wrote:

Without going into detail I am pleased to advise the working group that this complaint has been resolved and that I can bear witness to a unanimous demonstration of support for the leadership of the working group.

I would like to highlight the professional, “human” approach taken by all involved and their willingness to communicate in a clear, respectful and objective manner. This cooperative atmosphere allowed for a timely discussion and quick resolution.

Aratesh has for some time been one of the most vocal and combative GAC reps, noticeably unafraid to raise his voice when he needs to make his point.

He recently publicly threatened to take his concerns about ICANN’s policy on two-character domains to the International Telecommunications Union if his demands were not met.