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Kirikos lawyers up after ICANN etiquette fight

Kevin Murphy, October 25, 2018, Domain Policy

Domain investor George Kirikos has hired lawyers to send nastygrams to ICANN after a fight over the rules of etiquette on a working group mailing list.

Kirikos claims there’s a “campaign of intimidation” against him by fellow volunteers who do not agree with his opinions and forthright tone, but that he “has not done anything wrong”.

In response, ICANN CEO Goran Marby this evening revealed that he has assigned his general counsel and new deputy, John Jeffrey, to the case.

Even by ICANN standards, it’s a textbook case of a) manufacturing mountains out of molehills, and b) how it can become almost impossible to communicate like sensible human beings when everyone’s tangled in red tape.

The dispute started back in May, when Kirikos got into a fight with IP lawyer Greg Shatan on the mailing list of the Rights Protection Mechanisms working group.

Both men are volunteers on the group, which seeks to refine ICANN policy protecting trademark owners in gTLDs.

The argument was about the content of a World Intellectual Property Organization web page listing instances of UDRP cases being challenged in court.

Kirikos took a strident tone, to which Shatan took exception.

Shatan then reported Kirikos to the working group’s co-chairs, claiming a breach of the Expected Standards of Behavior — the informal code of conduct designed to prevent every ICANN discussion turning into a flame war and/or bare-knuckle alley fight.

Under GNSO PDP rules, working group volunteers have to agree to abide by the ESB. Group chairs have the ability to kick participants who repeatedly offend.

At this point, the sensible thing to do would have been for Shatan and Kirikos to hug it out and move on.

But this is ICANN.

What actually happened was a pointless procedural back-and-forth between Kirikos, Shatan, and working group chairs Phil Corwin of Verisign and Brian Beckham of WIPO, which resulted in Kirikos hiring two lawyers — Andrew Bernstein of Torys and regular ICANN participant Robin Gross of IP Justice.

It’s believed to be the first time a WG participant has hired counsel over a mailing list argument.

Far too boring to recount here, Corwin’s timeline of events can be found from page 24 of this transcript (pdf) of remarks delivered here in Barcelona during ICANN 63, while the Bernstein/Kirikos timeline can be found here (pdf).

The rub of it is that Kirikos reckons both Corwin and Beckham are biased against him — Beckham because Kirikos voted against his chairship, Corwin because of a similar dispute in a related working group earlier this year — and that the ESB is unenforceable anyway.

According to Bernstein: “Mr. Kirikos has strong concerns that whatever process ICANN purports to operate with respect to Mr. Shatan’s complaint, it will not be fairly or neutrally adjudicated.”

He added that Kirikos had said that “due to the precise language of Section 3.4 of the Working Group Guidelines, Mr. Shatan lacked a basis to initiate any complaint”.

That language allows complaints to be filed if the ESB is “abused”. According to Corwin’s account, Kirikos — well-known as a detail-oriented ICANN critic — reckons the correct term should be “violated”, which rendered the ESB “null and void and unenforceable” in this instance.

Bernstein has since added that the ICANN board of directors never intended the ESB to be anything but voluntary.

The sum of this appears to be that the dispute has had a chilling effect on the RPM working group’s ability to get anything done, consuming much of its co-chairs’ time.

Kirikos lawyering up seems to have compounded this effect.

Now, as ICANN 63 drew to a close this evening, CEO Marby said in a brief prepared statement that the WG’s work has “more or less stalled for the last several months” and that he’s assigned general counsel John Jeffrey to “look into the issues surrounding this matter”.

ICANN “takes the issue very seriously”, he said.

As well it might. The Kirikos/Shatan incident may have been blown waaaaay out of proportion, but at its core is a serious question about civil discourse in ICANN policy-making.

Personally, I hold out hope it’s not too late for everyone to hug it out and move on.

But this is ICANN.

It’s Drazek vs Dammak for GNSO Council chair

Kevin Murphy, September 28, 2018, Domain Policy

The chair of ICANN’s Generic Names Supporting Organization Council is contested this year, with a registry veep facing off against a software engineer.

The nomination from the contracted parties house is US-based Keith Drazek, Verisign’s VP of policy and government relations.

He’ll be opposed by non-contracted parties nominee and current vice-chair Rafik Dammak, a Tunisian working as a software engineer for NTT Communications (which is technically a contracted party due its dot-brand gTLD) in Japan.

Both men are long-time, active members of the ICANN community and GNSO.

The Council will pick its new chair about a month from now at the ICANN 63 meeting in Barcelona.

The winner will replace lawyer Heather Forrest, the non-contracted party who took the seat after an unopposed vote a year ago.

Is the new Whois policy group already doomed to fail?

Kevin Murphy, July 24, 2018, Domain Policy

ICANN’s Generic Names Supporting Organization has set itself extremely aggressive, some might say impossible, targets for its emergency Whois policy work.

The GNSO Council on Thursday approved the charter for a new working group that will attempt to come up with a consensus policy for how to amend the Whois system in light of the EU’s General Data Protection Regulation.

But the vote was not unanimous — three of the six Non-Commercial Stakeholder Group councilors abstained largely because they think intellectual property interests have managed to capture the discussion before it has begun.

The three abstentions were independent consultant Ayden Ferdeline, cybersecurity policy researcher Tatiana Tropina, and privacy consultant Stephanie Perrin.

Tropina said during the Thursday meeting: “I cannot vote ‘yes’ for a document that in my opinion has parts that are not properly worded and, instead of setting the scope of the EPDP [Expedited Policy Development Process] work, set up multiple possibilities to get the work sidetracked.”

She and Ferdeline pointed specifically to section J of the approved charter (pdf), which addresses “reasonable access” to non-public Whois data.

This is the part of the policy work that will decide whether, and to what extent, entities such as trademark owners and cybersecurity researchers will be able to peek behind the curtain of post-GDPR personal data redactions and see who actually owns domain names.

There are several “gating” questions that the working group must answer before it gets to J, however, such as: what data should be collected by registrars, how data transfer to registries should be handled, and are the reasons for this data to be collected all valid?

But when it comes to section J, the abstaining NCSG councilors reckon that the Intellectual Property Community has managed to sneak in the notion that its members should get access to private data as a fait accompli. Section J reads in part:

What framework(s) for disclosure could be used to address (i) issues involving abuse of domain name registrations, including but not limited to consumer protection, investigation of cybercrime, DNS abuse and intellectual property protection, (ii) addressing appropriate law enforcement needs, and (iii) provide access to registration data based on legitimate interests not outweighed by the fundamental rights of relevant data subjects?

Ferdeline said in his abstention:

I believe that Section J includes, first and foremost, questions that unnecessarily expand the scope of this EPDP and put perceived answers — rather than genuine, open ended questions — into this important document. Overall I think this section of the charter’s scope is unnecessary and will not allow the EPDP team to complete their work in a timely manner.

Tropina said J “poses the questions that, first of all, imply by default that issues related to intellectual property protection and consumer protection require the disclosure of personal data”, adding that she was bewildered that IP interests had been lumped in with security concerns:

This wording fails me: as I am criminal lawyer working in the field of frameworks for cybercrime investigation, I do not see why cybercrime investigations are separated from law enforcement needs and go to the same basket with intellectual property protection as they are on a completely different level of legitimate demands

In short, the newly approved EPDP charter has been framed in such a way as to make discussions extremely fractious from the outset, pitting privacy interests against those of the trademark lobby on some of the most divisive wedge issues.

This is problematic given that the working group has an extremely aggressive schedule — its members have not yet even been named and yet it expects to produce its Initial Report shortly after ICANN 63, which ends October 25 this year.

It’s an absurdly short space of time to resolve questions that have dogged ICANN for almost two decades.

Will this pressure to come to agreement against the clock work in favor of the trademark community, or will it doom the policy-making process to deadlock?

Attempting to steer the WG through this minefield will be Kurt Pritz, who was confirmed by the Council as its neutral chair on Thursday, as DI first reported a week ago.

The make-up of the group has also proved contentious.

While it is a GNSO process that would lead to a Consensus Policy binding on all gTLD registries and registrars, the decision has been made to bring in voices from other areas of the community, such as the Country Code Names Supporting Organization, which will not be directly affected by the resulting policy.

There will be 29 members in total, not counting the non-voting chair.

The GNSO gets 18 of these seats at the table, comprising: three registries, three registrars, two IPC members, two ISPs, two Business Constituency members, six NCSG members (which, I imagine would be split between the privacy-focused NCUC and more IP-friendly NPOC).

But also joining the group on an equal footing will be two members of the Root Server System Advisory Committee (I’ve no idea why), two from the Security and Stability Advisory Committee, two from the ccNSO, two from the At-Large Advisory Committee and three from the Governmental Advisory Committee.

The actual individuals filling these seats will be named by their respective constituencies in the next few days, ahead of the first WG meeting July 30.

It has been said that these people could expect to devote north of 30 hours a week (unpaid of course, though any necessary travel will be comp’d) to the discussions.

Pritz to be named chair of Whois group

Kevin Murphy, July 16, 2018, Domain Policy

Former ICANN senior vice president Kurt Pritz is expected to be named chair of the group tasked with reforming Whois in the post-GDPR world.

Sources familiar with the situation tell DI that Pritz was selected from three candidates who put themselves forward for the grueling policy-making task.

I’m told that choice was made by GNSO Council’s leadership and selection committee (minus Pritz’s wife, Donna Austin, who recused herself) and will have to be confirmed by the full Council when it meets this Thursday.

Pritz would chair the GNSO’s first-ever Expedited Policy Development Process working group, which is expected to provide an ICANN community response to ICANN org’s recent, top-down Temporary Specification for Whois.

The Temp Spec, written by ICANN in response to the GDPR privacy law, is the thing that is contractually forcing all gTLD registries and registrars to redact personal information from their public Whois records.

Because it’s temporary, it will expire May 24 next year, one year after it came into effect.

The EPDP will put the force of community consensus behind the policy that replaces it, but it’s unlikely to differ a great deal from the Temp Spec, so it would be unwise to get your hopes up that Whois will return to pre-GDPR levels of accessibility — ICANN policy cannot overrule the law.

The EPDP chair’s job is expected to be extremely taxing. During the recent ICANN meeting in Panama, it was said that regular, non-chair working group members could be expected to commit as much as 30 hours a week to the project.

ICANN expects that the EPDP’s core work should be complete before ICANN 63, which begins October 20, with its final report due next February.

Given that the ICANN community has failed to come to much consensus on anything Whois related for two decades, these are extremely aggressive targets.

To maintain focus, the EPDP group is going to be kept relatively small, but there’s still bickering about the make-up of the group, with non-commercial interests upset the commercial side of house is getting more representation.

The chair’s role was therefore potentially controversial — neutrality was seen as a key quality when ICANN advertised the gig a couple of weeks ago.

Pritz currently works for the .art new gTLD registry operator UK Creative Ideas, so technically he would be in the Registries Stakeholder Group.

But he’s also one of the key architects of the new gTLD program, ICANN’s point man on the application process before his resignation in late 2012, so he has extensive experience herding cats in a relatively neutral way.

Since then, he’s had stints as a consultant and as executive director of the Domain Name Association.

Whois working group imploding in GDPR’s wake

Kevin Murphy, May 14, 2018, Domain Policy

An ICANN working group devoted to Whois policy is looking increasingly dead after being trumped by incoming European Union privacy law.

Registration Data Services PDP working group chair Chuck Gomes threw in the towel late last week, resigning from the group shortly after cancelling proposed face-to-face meetings scheduled for the Panama ICANN meeting in June.

That followed his announcement last month that the WG’s teleconferences were to be put on hold while ICANN works out how to respond to the General Data Protection Regulation, which comes into effect May 25, 11 days from now.

The WG had been working on ICANN’s future Whois policy since November 2015 but faced the usual impasses that occur whenever the various sides of the ICANN community face off over privacy.

Gomes, a former Versign executive who retired almost a year ago but stuck around to chair the RDS group, said he’d originally expected its work to wrap up in 2017.

Now, with GDPR rendering much of the discussions moot, there’s a feeling among some WG volunteers that they’ve been wasting their time.

ICANN’s response to GDPR is expected to be an emergency, top-down policy, written by staff and approved by the board, that would stay in place for a year.

The GNSO would then have a year to rally the community, under its own emergency procedures, to make formal policy to replace it for the long term.

There’s an open question about whether the RDS WG could be re-purposed to take on this task, but it’s my sense it’s more likely that a new group would be formed.

It may prove more challenging to recruit volunteers to such a group given the experiences of the RDS crowd.

Gomes, a long-time ICANN veteran and former GNSO Council chair, plans to spend more time travelling around in his RV with his wife. We wish them well.