Is ICANN toothless in the face of DNS abuse?

Concerns have been raised that ICANN may lack the tools to tackle DNS abuse using its contracts with registries and registrars.

The new report from the GNSO’s “small team” on abuse has highlighted two “gaps” in the current Compliance regime that may be allowing registrars to get away with turning a blind eye to abusive customers.

The current version of the standard Registrar Accreditation Agreement calls for registrars to maintain an abuse contact email and to “take reasonable and prompt steps to investigate and respond appropriately to any reports of abuse.”

The problem, the small team report finds, is that ICANN Compliance doesn’t seem to have a standard definition of “reasonable”, “prompt”, and “appropriately”. The contract doesn’t require any specific remediations from the registrar.

“Members of the small team are concerned that this interpretation may allow DNS abuse to remain unmitigated, depending upon the registrar’s specific domain name use and abuse policies,” the report states.

Judging by conversations at ICANN 75 last month, it’s apparently the first time Compliance has gone on the record about how it enforces this part of the contract.

It’s quite rare for ICANN to issue a public breach notice to a registrar over its failure to respond to abuse reports and when it does, it tends to relate to the registrar’s failure to keep records showing how it responded.

I can’t find any instances where Compliance has canned a registrar for allowing abusive domains — typically defined as those hosting malware, phishing, botnets, pharming and some spam — to remain active after an abuse report.

The small team’s report also thinks there’s a blind spot in ICANN’s standard Registry Agreement, which in turn requires registries to include, in their Registry-Registrar Agreements, provisions requiring anti-abuse terms in the registrars’ Registration Agreements.

This complex chain of contractual provisions doesn’t seem to be enforced, the small team notes, saying “further consideration may need to be given to what Registries are doing to ensure the text is indeed included in the Registration Agreement (ie Registries enforcing their own Registry-Registrar Agreements”.

The small team recommends that contracted parties talk further with ICANN about possible contract changes or best practices documents before going ahead with policy-making. The GNSO Council will address the recommendations later this month.

ICANN staffer to referee closed generics fight

An ICANN policy staffer seems set to chair discussions between governments and the gTLD community over how to regulate “closed generic” domains in the next round of new gTLD applications.

ICANN has put forward its own conflict resolution specialist Melissa Peters Allgood to facilitate the talks, and the Governmental Advisory Committee and GNSO Council have apparently concurred, according to recent correspondence.

“We are of the view that Ms. Allgood’s experience, qualifications, and neutrality in the matter meets the suggested criteria from the GAC and the GNSO Council,” ICANN chair Maarten Botterman told his GAC and GNSO counterparts.

The talks will attempt to reach a consensus on how closed generics can be permitted, but limited to applications that “serve a public interest goal”.

A closed generic is a dictionary-word gTLD that the applicant hopes to operate as a dot-brand even though it does not own a matching trademark. Think Nike operating .sneakers and excluding Adidas and Reebok from registering names there.

While the GNSO community was unable to come to consensus on whether they should be permitted in subsequent rounds, the nine-year-old “public interest goal” GAC advice is still applicable.

The GAC and GNSO have agreed that the talks will exclude the propositions that closed generics should be unrestricted or banned outright.

Once both parties have formally agreed to Allgood’s appointment, and to the size and makeup of the discussion group, Allgood will prepare more paperwork outlining the problem at hand before talks start to happen, according to Botterman.

New gTLDs WILL be delayed by Whois work

The next round of new gTLD applications will be delayed by ICANN’s work on Whois reform, ICANN chair Maarten Botterman confirmed today.

In a letter to his GNSO Council counterpart Philippe Fouquart, Botterman states that the new gTLDs Operational Design Phase, which was due to wrap up in October, will have to proceed with an “extended timeline”.

This is because the GNSO has pushed the concept of a Whois Disclosure System, previously known as SSAD Light and meant to provide the foundations of a system for access private Whois data, and ICANN needs time to design it.

Botterman wrote (pdf):

there is an overlap in org resources with the relevant expertise needed to complete these efforts. As a result, work on the [Whois] design paper will impact existing projects. While SubPro [new gTLDs] ODP work will not stop during this period, we anticipate that an extended timeline will be required to account for the temporary unavailability of resources allocated to the design paper work.

Botterman did not put a length of time to these delays, but previous ICANN estimates have talked about six weeks. GNSO members had worried that this estimate might be a low-ball that could be extended.

ICANN had given the GNSO the option to choose to delay Whois work to complete the SubPro ODP, but it could not come to an agreement on which project was more important, and seemed to resent even being asked.

Community tells ICANN to walk and chew gum at the same time

Whois or new gTLDs? Whois or new gTLDs? Whois or new gTLDs?

It’s the question ICANN has been pestering the community with since early May. ICANN can’t work on developing the proposed Whois Disclosure System (formerly known as SSAD) without delaying work on the next round of new gTLDs, Org said, so the community was given a Sophie’s Choice of which of its babies to sacrifice on the altar of failed resource planning.

And now it has its answer: why the heck can’t you do both, and why the heck are you asking us anyway?

GNSO Council chair Philippe Fouquart has written to Maarten Botterman, his counterpart on the ICANN board of directors, to request that Org figure out how to do both Whois and new gTLDs at the same time, and to existing deadlines:

While Council members might differ on which project should take precedence, there is unanimous agreement that the Subsequent Procedures ODP and SSAD development are among the most important tasks before ICANN. Therefore, we urge that every effort should be undertaken by ICANN Org to complete the work in parallel and to meet currently published milestones.

Fouquart goes on (pdf) to puzzle as to why ICANN decided to “inappropriately include the broad community in the minutiae of ICANN operations planning”.

ICANN had told the GNSO that if it wanted the Whois work to kick off, it would add “at least” six weeks of delay to the new gTLDs Operational Design Phase, which is scheduled to wrap up in October.

Naturally enough, folks such as IP lawyers were very keen that ICANN start to do something — anything — to roll back the damage caused by GDPR, while domain-selling companies are anxious that they get more inventory for their virtual shelves.

The public record has always been a bit sketchy on where the resource bottleneck actually is, in an organization with half a billion bucks in the bank, a $140 million operating budget, and around 400 staff.

Maintaining Whois and the expansion of the root zone are, after all, two of the main things ICANN was founded to do, being unable to do both at once could be seen as embarrassing.

But now it has its answer, as unhelpful as it is.

And it only took two months.

The slow crawl to closed generics at ICANN 74

Last Monday saw the 10th anniversary of Reveal Day, the event in London where ICANN officially revealed the 1,930 new gTLD applications submitted earlier in 2012 to a crowd of excited applicants and media.

Dozens of those applications were for closed generics — where the registry operator is the sole registrant, but the string isn’t a trademark — but now, a decade later, the ICANN community still hasn’t decided what to do about that type of gTLD.

At ICANN 74 last week, the Generic Names Supporting Organization and Governmental Advisory Committee inched closer to agreeing the rules of engagement for forthcoming talks on how closed generics should be regulated.

The GNSO’s working group on new gTLDs — known as SubPro — had failed to come to a consensus on whether closed generics should even be allowed, failing even to agree on whether the status quo was the thousand-year-old earlier GNSO policy recommendations that permitted them or the later GAC-influenced ICANN retconning that banned them.

But ever since SubPro delivered its final report, the GAC has been reminding ICANN of its 2013 Beijing communique advice, which stated: “For strings representing generic terms, exclusive registry access should serve a public interest goal.”

At the time, this amounted to an effective ban, but today it’s become an enabler.

ICANN has for the last several months been coaxing the GNSO and the GAC to the negotiating table to help bring the SubPro stalemate into line with the Beijing communique, and the rules of engagement pretty much guarantee that closed generics will be permitted, as least in principle, in the next application round.

GAC chair Manal Ismail told ICANN (pdf) back in April:

discussion should focus on a compromise to allow closed generics only if they serve a public interest goal and that the two “edge outcomes” (i.e. allowing closed generics without restrictions/limitations, and prohibiting closed generics under any circumstance) are unlikely to achieve consensus, and should therefore be considered out of scope for this dialogue.

Remarkably, the GNSO agreed to these terms with little complaint, essentially allowing the GAC to set at least the fundamentals of the policy.

Last week, talks centered on how these bilateral negotiations — or trilateral, as the At-Large Advisory Committee is now also getting a seat at the table — will be proceed.

The rules of engagement were framed by ICANN (pdf) back in March, with the idea that talks would begin before ICANN 74, a deadline that has clearly been missed.

The GNSO convened a small team of members to consider ICANN’s proposals and issued its report (pdf) last week, which now seems to have been agreed upon by the Council.

Both GNSO and GAC are keen that the talks will be facilitated by an independent, non-conflicted, knowledgeable expert, and have conceded that they may have to hire a professional facilitator from outside the community.

That person hasn’t been picked yet, and until he/she has taken their seat no talks are going to happen.

ICANN said a few months ago that it did not expect the closed generics issue to delay the SubPro Operational Design Phase, which is scheduled to wind up in October, but the longer the GAC, GNSO and ICANN dawdle, the more likely that becomes.

All that has to happen is for a group of 14-16 community members to agree on what “public interest” means, and that should be easy, right? Right?

New gTLDs or Whois access? What’s more important?

Should ICANN focus its resources on getting the next round of new gTLDs underway, or making some baby steps towards a post-GDPR system of Whois access?

That’s a question the community is going to have to address when ICANN 74 rolls around next month, after the ICANN board presented it with a divisive question on two of the industry’s most pressing issues that split the GNSO Council along predictable lines at its monthly meeting last week.

It turns out that ICANN doesn’t have the resources to both design a new “SSAD Light” system for handling Whois requests and also carry on its new gTLDs Operational Design Phase, “SubPro”, at the same time.

If the community wants ICANN staff to start work on SSAD Light, work will be paused on the ODP for at least six weeks, ICANN has said. If they want the system also built, the delay to new gTLDs could be much, much longer.

Intellectual property lawyers are of course keen to at least start undoing some of the damage caused by privacy legislation such as GDRP, while registries and consultants are champing at the bit for another expansion of the gTLD space.

This split was reflected on the Council’s monthly call last week, where registry employees Maxim Alzoba, Kurt Pritz and Jeff Neuman were opposed by IP lawyers Paul McGrady and John McElwaine.

“Six weeks is a sneeze in a hurricane,” McGrady said. “We are right on the cusp of taking first steps to solve a problem that has plagued the Community since GDPR came out. I don’t think a six-week delay on SubPro, which again we’re years into and it looks like will be years to go, is a material change to SubPro… a very minor delay seems well worth it.”

At this point, ICANN is still planning to have the SubPro ODP wrapped up in October, thought it has warned that there could be other unforeseen delays.

Neuman warned that even a six-week pause could provide more than six weeks delay to SubPro. Staff can’t just down tools on one project and pick up again six weeks later without losing momentum, he said.

Pritz seemed to echo this concern. The Registries Stakeholder Group hasn’t finished discussing the issue yet, he said, but would be concerned about anything that caused “inefficiencies” and “switching costs”.

The discussion was pretty brief, and no votes were taken. It seems the conversation will pick up again in The Hague when ICANN meets for its short mid-year public meeting on June 13.

ICANN highlights “not getting things done” risk

ICANN’s board of directors addressed a number of existential threats at its latest workshop, including the perception that it’s simply “not getting things done.”

Chair Maarten Botterman disclosed the discussions, which took place at the end of April, in a blog post Friday.

He described how the board broke up into four “brainstorming” groups, which returned with strikingly similar views on the risks ICANN faces.

There’s a worry that the lack of in-person meetings due to the pandemic is harming ICANN’s ability to work and that various unspecified “geopolitical initiatives” may get in the way of the mission. He added:

Moreover, we recognized the risk of ICANN being seen as “not getting things done.” On the opportunity side is the broad awareness within ICANN that we need to continue to deliver on our mission in the face of new challenges, as demonstrated by the prioritization efforts of the Board, Org, and Community, and our ability to adapt to changing circumstances.

The Org and the community have been faced with what I would call organizational inertia in recent months and years.

I wrote a few months ago about how ICANN hadn’t implemented a policy since December 2016 — more than five years previously.

Major issues facing the industry seem to be either stuck in endless feedback loops of community arguments or interminable Org preparatory work.

The SSAD, pitched as a solution to the problem of Whois access, appears doomed to be scrapped entirely or approved in a much-reduced form that many believe will not address the problem of identifying registrants in a post-GDPR world.

And even if the stripped-back SSAD Light gets approved, there’s a good chance this will add many months to the runway of the next round of new gTLDs, which itself is at an impasse because the Governmental Advisory Committee and the the GNSO cannot agree on whether to allow closed generics.

As it stands, 10 years after the last application round new gTLD policy is in the Operational Design Phase within Org, and not expected to come before the board until late this year. Much of what has been disclosed about the ODP to date looks a lot like wheel-spinning.

UDRP comments reveal shocking lack of trust in ICANN process

Is trust in the ICANN community policy-making process on the decline? Submissions to a recent public comment period on UDRP reform certainly seem to suggest so.

Reading through the 41 comments filed, it’s clear that while many community members and constituencies have pet peeves about UDRP as it stands today, there’s a disturbing lack of trust in ICANN’s ability to reform the policy without breaking it, and very little appetite for a full-blown Policy Development Process.

It’s one area where constituencies not traditionally allied or aligned — such as domain investors and intellectual property interests — seem to be on the same page.

Both the Intellectual Property Constituency and the Internet Commerce Association are among those calling for any changes to UDRP to be drafted rapidly by subject-matter experts, rather than being opened to full community discussion.

The IPC called the UDRP “a vital and fundamental tool that has a long and proven track record”, saying it has “generally been consistently and predictably applied over the course of its more than 20-year history”. Its comment added:

it is critically important that future policy work regarding the UDRP not diminish, dilute, or otherwise undermine its effectiveness. Such policy work should be extremely deferential to and reliant on the input of experts who have actual experience working with and within the UDRP system, and resistant to efforts that would weaken the UDRP system; any such work should be based on facts and evidence of problems in need of a systematic policy-level solution, and not merely to address specific edge cases, differences of opinion, or pet issues.

That’s pretty much in line with the ICA’s comments, which state that participants in future UDRP reform talks “should be experts… individuals who have extensive personal and practical knowledge of the UDRP through direct personal involvement”.

That language — in fact several paragraphs of endorsement for an expert-driven effort — appears almost verbatim in the separately filed comments of the Business Constituency, of which the ICA is a member.

The ICA’s reluctance to endorse a full-blown PDP appears to come from the experience of the Review of all Rights Protection Mechanisms in all gTLDs PDP, or “Phase 1”, which ran from 2016 to 2020.

That working group struggled to reach consensus on even basic stuff, and at one point frictions reached a point where allegations of civility rules breaches caused warring parties to lawyer up.

“Phase 1 was lengthy, unproductive, inefficient, and an unpleasant experience for all concerned,” the ICA wrote in its comments.

“Perhaps the biggest problem with Phase 1 was that structurally it was inadvertently set up to encourage disagreements between interest groups rather than to facilitate collaboration, negotiation, and problem solving,” it said.

The BC arguable goes further in its deference to experts, calling on ICANN to invoke section 13.1 of its bylaws and drag the World Intellectual Property Organization — leading UDRP provider and drafter of the original 1999 policy — as an expert consultant.

The BC also wrote:

It is imperative that stakeholders do not unnecessarily open up a can of worms with the UDRP through destabilizing changes; rather, they should take a focused and targeted approach, only entertaining improvements and enhancements which stand a reasonable chance of gaining consensus amongst stakeholders

WIPO itself is thinking along the same lines:

If the choice is made to review the UDRP, the process should be expert-driven and scoped

To avoid undoing the UDRP’s success, ICANN needs to give serious consideration to the weight to be accorded to the various opinions expressed. So-called “community feedback” referred to, for example, in section 4 of the PSR seems to lack specific depth and can seem more ideological or anecdotal

Comments from ICANN’s contracted parties also expressed concerns about a PDP doing more harm than good.

The Registries Stakeholder Group has almost nothing to say about ICANN’s report, but the Registrars Stakeholder Group expressed concerns that “any updates could have unintended consequences resulting in a less effective UDRP”.

It uniquely brought up the issue of volunteer fatigue and ICANN’s cumbersome backlog of work, writing:

Although the RrSG recognizes that there are some minor areas for improvement in the UDRP, it is the position of the RrSG that a full policy development process (PDP) is not necessary. The UDRP was adopted in 1999, and has been utilized for over 60,000 UDRP cases. The RrSG is not aware of any major issues with the UDRP, and is concerned that any updates could have unintended consequences resulting in a less effective UDRP. Additionally, not only is there a backlog of policy recommendations waiting for ICANN Board approval or implementation, but the RrSG is also aware of substantial community volunteer fatigue even for high-priority issues.

These comments were filed in response to a public comment period on an ICANN-prepared policy status report.

Not every comment expressed skepticism about the efficacy of a PDP. Notably, the Non-Commercial Stakeholders Group — the constituency arguably most likely to upset the apple cart if a Phase 2 PDP goes ahead — appears to fully expect that such work will take place.

There were also many comments from individuals, mostly domainers, recounting their own experiences of, and reform wish-lists for, UDRP.

ICANN’s report will be revised in light of these comments and submitted to the GNSO, which will decide what to do with it.

More friction over closed generics

ICANN’s Generic Names Supporting Organization and Governmental Advisory Committee seem to be headed to bilateral talks on the thorny issue of whether “closed generic” gTLDs should be allowed, but not without discontent.

The GNSO’s Non-Commercial Stakeholder Group last week opposed these talks, suggesting that the GAC is trying to acquire more policy-making power and take a second bite at the apple on a issue it has already advised on.

The NCSG wrote (pdf) to the GNSO Council last Thursday to oppose GAC talks, which are being encouraged by ICANN management and board.

Closed generics are dictionary-word gTLDs that do not match the registry’s trademarks but which nevertheless act as though they are a dot-brand, where only the registry may register domains.

There aren’t any right now, because ICANN, acting in 2014 in response to 2013 GAC advice, retroactively banned them from the 2012 application round, even though they were initially permitted.

It’s such a divisive issue that the GNSO working group (known as SubPro) that made the policy recommendations for the next round was, I believe uniquely, unable to come up with a even a fudged recommendation.

The GAC is sticking to its view that closed generics are potentially harmful, and since the GNSO couldn’t make its mind up, ICANN has suggested an informal dialogue between the two parties, to encourage a solution both deem acceptable that could then be thrown back at the GNSO for formal ratification.

The NCSG objected to this idea because it appears, NCSG said, that a new policy process is being created that increases the GAC’s powers to intervene in policy-making when it sees something it doesn’t like.

But the constituency appeared to stand alone during a GNSO Council meeting last Thursday, where the prevailing opinion seemed to be that dialogue is always a good thing and it would be bad optics to refuse to talk.

The Council has formed a small team of four to decide whether to talk to the GAC, which is in favor of the move.

Closed generic gTLDs likely to be allowed, as governments clash with ICANN

So-called “closed generics” seem to be on a path to being permitted in the next new gTLD application round.

The issue reconfirmed itself at ICANN 73 last week as a major point of disagreement between governments and ICANN, and a major barrier to the next round of new gTLDs going ahead.

But a way forward was proposed that seems likely to to permit closed generics in some form in the next round, resolving an argument that has lasted the better part of a decade.

It seems ICANN now expects that closed generics WILL be permitted, but restricted in some yet-to-be-decided way.

A closed generic is a gTLD representing a dictionary word that is not also a brand, operated by a registry that declines to sell domains to anyone other than itself and its close affiliates.

Imagine McDonald’s operating .burgers, but no other fast food chain, cow-masher, or burger afficionado is allowed to register a .burgers domain.

ICANN’s 2012 application round implicitly allowed applications for such gTLDs — at least, it did not disallow them — which prompted outrage from the governments.

The GAC’s Beijing communique (pdf), from April 2013, urged ICANN to retroactively ban these applications unless they “serve a public interest goal”.

The GAC identified 186 applications from the 2012 round that appeared to be for closed generics.

ICANN, taking the GAC’s lead, gave these applicants a choice to either convert their application to an open generic, withdraw for a refund, or maintain their closed generic status and defer their applications to the next round.

Most opted to switch to an open model. Some of those hacked their way around the problem by making registrations prohibitively restrictive or expensive, or simply sitting on their unlaunched gTLDs indefinitely.

The GNSO policy for the next round is inconclusive on whether closed generics should be permitted. The working group contained two or three competing camps, and nobody conceded enough ground for a consensus recommendation to be made.

It’s one of those wedge issues that highlights the limitations of the multistakeholder model.

The working group couldn’t even fall back on the status quo since they couldn’t agree, in light of ICANN’s specific request for a clear policy, what the status quo even was.

Policy-makers are often also those who stand to financially benefit from selling shovels to new gTLD applicants in the next round. The fewer restrictions, the wider the pool of potential clients and the more attractive the sales pitch.

The working group ended up recommending (big pdf) further policy work by disinterested economics and competition law experts, which hasn’t happened, and the GNSO Council asked the ICANN board for guidance, which it refused to provide.

The GAC has continued to press ICANN on the issue, reinforcing its Beijing advice, for the last year or so. It seems to see the disagreement on closed generics as a problem that highlights the ambiguity of its role within the multistakeholder process.

So ICANN, refusing to create policy in a top-down fashion, is forcing the GAC and the GNSO to the table in bilateral talks in an attempt to create community consensus, but the way the Org is framing the issue may prove instructive.

A framework for these discussions (pdf) prepared by ICANN last week suggests that, when it comes to closed generics, an outright-ban policy and an open-door policy would both be ruled out from the outset.

The paper says:

It is evident from the PDP deliberations and the community’s discussions and feedback that either of the two “edge outcomes” are unlikely to achieve consensus; i.e.:

• 1. allowing closed generics without restrictions or limitations OR
• 2. prohibiting closed generics under any circumstance.

As such, the goal could be to focus the dialogue on how to achieve a balanced outcome that does not represent either of these two scenarios. The space to be explored in this dialogue is identifying circumstances where closed generics could be allowed (e.g., when they serve the public interest, as noted by the GAC Advice). This will likely require discussions as to the types of possible safeguards that could apply to closed generics, identifiable public interest goals for that gTLD and how that goal is to be served, with potential consequences if this turns out not to be the case.

It sounds quite prescriptive, but does it amount to top-down policy making? Insert shrugging emoji here. It seems there’s still scope for the GAC and GNSO to set their own ground rules, even if that does mean relitigating entrenched positions.

The GAC, in its ICANN 73 communique (pdf) said yesterday that it welcomes these talks, and the GNSO Council has already started to put together a small team of councillors (so far also former PDP WG members) to review ICANN’s proposal.

ICANN expects the GNSO-GAC group to begin its work, under an ICANN-supplied facilitator, on one or more Zoom calls before ICANN 74 in June.