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Ombudsman trashes ICANN’s rejection of .gay “community”

Kevin Murphy, August 1, 2016, Domain Policy

ICANN’s outgoing Ombudsman fired a parting shot at his former employer last week with a scathing analysis of its rejection of .gay as a community gTLD.

ICANN should reject the decisions of two independent Economist Intelligence Unit panels, which found that Dotgay LLC’s application for .gay did not meet the strict definition of “community” under ICANN rules, LaHatte wrote.

“This is the time to recognise that even if the EIU evaluation did not achieve the appropriate number of points, that the community is real, does need protection and should be supported,” he wrote.

His recommendation appears on his personal blog, dated July 27, the same day his contract with ICANN expired. It has not appeared on the official ICANN Ombudsman blog.

The EIU is responsible for conducting Community Priority Evaluations for applicants who claim to be representing communities.

Its decisions have been unpredictable and to a degree inconsistent, but both times its panels looked at Dotgay’s .gay, they scored the application lower than the 14 out of 16 points required to pass the CPE.

Winning a CPE generally means you get the gTLD in question. Losing means you have to go to auction against competing applicants.

In the case of .gay, the other applicants are Top Level Design, Minds + Machines and Rightside.

Dotgay failed both times because its stated community — which includes straight people — does not match the string “gay”.

Nobody’s ever said that there’s no such thing as a gay community, they’ve just said there’s no such thing as a gay Community (big C) as defined by Dotgay LLC.

LaHatte’s recommendation does not delve into the nitty-gritty of the scoring process, but seems to criticize the system — and the flawed Request for Reconsideration system Dotgay has thrice unsuccessfully invoked — as “inadequate”. He wrote:

The role of the ombudsman is to deal with issues of fairness, and this encompasses issues such as respect for diversity and support for all parts of our community. Sometimes the mechanisms which we have put together to resolve challenges are simply inadequate…

But the issue that I want to emphasise in this recommendation is that it has always been open to ICANN to reject an EIU recommendation, especially when public interest considerations are involved. What is needed is to take a bold approach and demonstrate to the ICANN community, but also much more widely, to the world of Internet users, that ICANN has a commitment to principles of international law (see Article IV of the Bylaws), including human rights, fairness, and transparency.

The board will be very aware of the human rights initiatives undertaken in the light of the IANA transition and the careful evaluation of the accountability processes. But sometimes it is necessary to take a view which evaluates whether the decision taken corresponds with the bylaws and articles of incorporation. That view should be that ICANN supports the gay community and recognises that there is a community which requires protection and recognition, which has been marginalized, threatened and attacked, and which should be considered a genuine community notwithstanding the EIU recommendation.

He’s basically calling on ICANN’s board to cast aside the rules and previous practice in this particular instance and instead make a political statement, in my reading of the recommendation.

I don’t think ICANN will do that.

On a couple of occasions when Dotgay has suffered an ICANN-induced setback in the past, ICANN has put out statements reminding everyone that there will be a .gay, they only question is who runs it.

Because Dotgay filed a community application, it would be obliged to make .gay a restricted space. Its application talks about registrants having to be approved as eligible before they register.

But it also would have the strictest measures in place to address homophobia and harassment — something the other applicants may, but have not formally committed, to implement.

dotgay loses third .gay appeal

Kevin Murphy, July 1, 2016, Domain Services

Death warrant or portent of impending legal action?

dotgay LLC has lost its third attempt to get ICANN to reconsider tossing its application for community priority status in the fight for the .gay gTLD.

According to ICANN, on Sunday its Board Governance Committee threw out dotgay’s third Request for Reconsideration, an attempt to give the company an unprecedented third go at the Community Priority Evaluation process.

CPEs allow community gTLD applicants to avoid expensive auctions, but dotgay has lost two primarily on the grounds that its definition of community includes people who are not gay.

Its latest RfR was pretty weak, based on a technicality about which staffers at the Economist Intelligence Unit (which carries out the CPEs) were in charge of verifying its letters of community support.

The rationale for the BGC’s determination, which still needs to be rubber-stamped by the full ICANN board, has not been published yet.

But it seems from a blog post that ICANN now expects .gay to go to auction, where there are four competing applicants in total.

ICANN does not usually publish blog posts on RfR decisions, but in the .gay case it has been keen to avoid being accused of any motivation beyond a dogged pursuit of correct procedure.

So will dotgay go quietly? It remains to be seen.

While all new gTLD applicants had to sign a release promising not to sue ICANN, .africa applicant DotConnectAfrica sued earlier this year and managed to get a sympathetic judge who seems bent on allowing the case to go to trial.

dotgay has a third crack at .gay appeal

Kevin Murphy, February 19, 2016, Domain Policy

dotgay LLC has filed another appeal with ICANN, hoping to get its community-based .gay application back in the race.

It submitted a third Request for Reconsideration (pdf) this week, arguing on a technicality that its bid should have another Community Priority Evaluation.

The company has already lost two CPEs based on the Economist Intelligence Unit CPE panel’s belief that its definition of “gay” is too broad because it includes straight people.

It’s also lost two RfRs, which are adjudicated by ICANN’s Board Governance Committee.

The newest RfR addresses not the core “not gay enough” issue, but a procedural error at the EIU it believes it has identified.

According to the filing, dotgay is in possession of emails from an EIU employee who was responsible for verifying some of the dozens of support letters it had received from dotgay’s backers (generally equal rights campaign groups).

The company argues, citing the BGC’s own words, that this employee was not one of the official CPE “evaluators”, which means the EIU broke its own rules of procedure:

considering the fact that the CPE Process Document – which is considered by the BGC to be “consistent with” and “strictly adheres to the Guidebook’s criteria and requirements”, it is clear that the verification of the letters should have been performed by an independent evaluator… and not by someone “responsible for communicating with the authors of support and opposition letters regarding verification in the ordinary course of his work for the EIU”.

It wants the CPE to be conducted again, saying “it is obvious that the outcome of a process is often, if not always, determined by the fact whether the correct process has been followed”.

It’s difficult to see how the outcome of a third CPE, should one be undertaken, could be any different to the first two. Who verifies the support letters doesn’t seem to speak to the reason dotgay hasn’t scored enough points on its other two attempts.

But the alternative for the company is an expensive auction with the other .gay applicants.

Another CPE would at least buy it time to pile more political pressure on ICANN and the EIU.

“We’re not homophobic!” ICANN pleads as it throws out .gay appeal

Kevin Murphy, February 3, 2016, Domain Policy

ICANN has refused dotgay LLC’s latest appeal against adverse .gay decisions, and has taken the unusual step of preemptively defending itself against probably inevitable accusations from gay rights groups.

On Monday, the Board Governance Committee threw out dotgay’s Request for Reconsideration, in which the company had asked for a third crack at the Community Priority Evaluation process that could have seen it win .gay without paying at auction.

Today, BGC chair Chris Disspain published a blog post that’s basically a defense against accusations that ICANN is somehow intolerant or ignorant of gay issues.

The post explains the RfR process, explains that the latest decision doesn’t mean there won’t be a .gay or that dotgay won’t win the contention set, winding up:

I want to make clear that the denial of the Request for Reconsideration is not a statement about the validity of dotgay LLC’s application or dotgay LLC’s supporters. The decision means that the BGC did not find that the CPE process for dotgay, LLC’s .GAY application violated any ICANN policies or procedures.

It is ICANN’s responsibility to support the community-developed process and provide equitable treatment to all impacted parties. We understand that this outcome will be disappointing to supporters of the dotgay LLC application. We appreciate the amount of interest that this topic has generated within the ICANN community, and we encourage all interested parties to participate in the multistakeholder process to help shape how future application rounds are defined.

dotgay’s two CPEs, which were evaluated by the Economist Intelligence Unit, failed because the company defined its “community” too broadly, to include people who aren’t gay.

The company says that it’s “common sense” that “gay” is an umbrella term not only for lesbian and bisexual people, but also for people with non-standard gender identities and straight people who support equal rights.

(As an aside, I recently learned that former boxing promoter Kellie Maloney, the UK’s poster girl for transgender issues, disagrees with same-sex couples raising kids and once called for gay pride marches to be banned. I wonder how she fits under this umbrella.)

But the second EIU panel “determined that the applied-for string does not sufficiently identify some members of the applicant’s defined community, in particular transgender, intersex, and ally individuals”.

The CPE application fell apart on that basis. It scored 10 of the available 16 points, four points shy of a winner.

Due to the sensitive nature of this kind of thing, and the fact that dotgay does have a truckload of genuine support from prominent campaigning members of its community, ICANN and the EIU have come in for criticism.

Some of that criticism has implied that ICANN, the EIU, the process or all three are in some way homophobic or at least ignorant.

An article on gay news website The Gayly this week said: “The EIU’s actions contradict all common sense and are being interpreted as the outcome of a hostile environment.”

dotgay encouraged supporters to tweet: “Say NO to unfair & unequal treatment of the gay community at the hands of @TheEIU #Yes2dotgay”.

I’ve seen some tweets from supporters that use stronger language, which I’m guessing is what the BGC is trying to preempt today.

Now that it has exhausted the RfR process without success, expect dotgay to file an Independent Review Process appeal with ICANN, delaying the .gay contention set resolution for a year or more.

UN group supports community .gay bid

Kevin Murphy, January 30, 2016, Domain Registries

An organization representing staff members of the United Nations has come out in support of dotgay LLC’s struggling community application for the .gay gTLD.

UN-GLOBE comprises UN employees who identify as “lesbian, gay, bisexual, transgender, and inter-sex”. Its primary goals are pushing for equal rights for these groups within the UN system.

In a letter to ICANN (pdf) earlier this month, the organization said it supports dotgay’s application, despite its Community Priority Evaluation being rejected twice.

The Economist Intelligence Unit’s judging panel has kicked out both of dotgay’s CPEs on the grounds that the applicant’s definition of “gay” includes straight people, and straight people aren’t gay.

But UN-GLOBE, echoing dotgay’s own view, wrote:

We also express our disagreement over the results of the Community Priority Evaluation of October 8, 2015 that rejected dotgay LCC’s community application based on its narrow analysis of the term gay. The term gay should be understood globally instead, as it is generally understood by the internationally diverse lesbian, gay, bisexual, transgender, queer, intersex, and ally (LGBTQIA) community represented in dotgay LLC’s application.

It might be worth noting that UN-GLOBE makes no mention of its own membership including “allies” — that is, people who are not LGBTQI but nevertheless support equal rights — in its letter or on its web site.

dotgay currently has an outstanding Request for Reconsideration against its latest CPE loss, which is expected to be decided by ICANN’s Board Governance Committee on Monday.

If ICANN closes the door on more appeals, the .gay contention set will go to auction where its rivals are Rightside, Top Level Design and Minds + Machines.

One way or another, there will be a .gay gTLD, the only question is whether it will be restricted to approved “gay community” members or open to all.