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Has the world’s biggest new gTLD registry gone bankrupt?

Has Famous Four Media, by some measures the largest new gTLD registry, gone bankrupt?

There’s some startling evidence that this may be the case, but the company and others concerned are maintaining radio silence.

Last week, IANA’s administrative contact for all of the company’s 16 TLDs changed from its CEO, Geir Rasmussen, to someone called Edgar Lavarello. Here’s an example.

Lavarello, it turns out, is a partner at PricewaterhouseCoopers in Gibraltar who specializes in insolvency and liquidation.

Here he is in a three-year-old interview explaining why my headline today technically really should have used the word “insolvent” rather than “bankrupt”.

On Wednesday, I reached out for comment to Rasmussen and Lavarello, along with others known to work at FFM (at least recently) but have not received any responses.

Absence of a reply is not proof of anything of course — FFM has never been the most communicative company in the world and nobody is under any obligation to respond to inquiries from a humble blogger.

But I suspect that if I posed the straightforward if slightly cheeky question “Has your company gone bankrupt?” to almost any other member of the domain name industry, I’d usually expect to receive a denial in short order.

Sadly, insolvency records in laissez-faire British tax haven Gibraltar, where FFM is based, do not appear to be a matter of public record.

Even if FFM has not gone insolvent, I think there are clear signs it is having problems.

Its primary web site at famousfourmedia.com has been stripped back to be little more than a privacy policy and a contact form. Gone are all the sales pitches, press releases and TLD-specific pages. It’s now basically a one-pager.

The web site of its parent company, Domain Venture Partners, no longer resolves.

Reaching out to industry sources who have business relationships with FFM, I was unable to find anyone who’d talked to the company recently, though there were rumors of departing staff.

Earlier this year, company chair Iain Roache spent £3.9 million ($5.4 million) to buy out former FFM COO Charles Melvin, after Melvin filed a lawsuit against him and Rasmussen.

The nature of the suit is not particularly clear from public records, but at one point Gibraltar’s top judge ruled that the defendants had filed inaccurate — technically “forged” — documents to the court.

These documents included 10 invoices between FFM and AlpNames, its affiliated registrar.

Famous Four runs 16 new gTLDs — the largest among them .loan, .win and .men — and has arguably shifted more domains than any other portfolio registry.

Group volume currently runs at about 4.5 million names according to ntldstats, compared to 3.9 million for Donuts with its far larger portfolio of 241 strings.

It’s achieved this impressive scale largely by selling domains super cheap, often at or below cost and often via AlpNames.

This has resulted in huge numbers of domains being acquired by spammers. FFM strings are routinely listed in the SpamHaus top-ten list of dirtiest TLDs.

AlpNames is also regularly fingered as one of the most spam-friendly registrars.

The company’s chosen business model means that renewals, where you’d expect to make your actual revenue, are on the low side. If you take its .science as a representative example, the TLD peaked at 350,000 domains under management in April 2016 but stood at around 63,000 this February.

$44 billion company is latest deadbeat gTLD registry

Indian car-making giant Tata Motors has become the latest new gTLD registry to fail to pay its ICANN fees.

According to a breach notice (pdf), $44 billion-a-year Tata hasn’t paid its $6,250 quarterly registry fee since at least November last year (though probably much earlier).

Listed on the New York Stock Exchange and elsewhere and part of the Indian conglomerate Tata Group, the company runs .tatamotors as a dot-brand gTLD.

The breach notice, dated 10 days ago, also says that the company is in breach of its contract for failing to publish an abuse contact on its nic.tatamotors web site, something it seems to have corrected.

.tatamotors had half a dozen domains under management at the last count and seems to have at least experimented with using the TLD for private purposes.

Tata becomes the second dot-brand registry to get a slap for non-payment this year.

Back in April, the bank Kuwait Finance House, with revenues of $700 million a year, was also told it was late paying its fees.

How ICANN thinks YOU could get full Whois access

Kevin Murphy, June 20, 2018, Domain Policy

With blanket public Whois access now firmly a thing of the past due to GDPR, ICANN has set the ball rolling on an accreditation system that would reopen the data doors to certain select parties.

The org yesterday published a high-level framework document for a “Unified Access Model” that could give Whois access to approved users such as police, lawyers, and even common registrants.

It contains many elements that are sure to be controversial, such as paying fees for Whois access, the right of governments to decide who gets approved, and ICANN’s right to see every single Whois query carried out under the program.

It’s basically ICANN’s attempt to frame the conversation about Whois access, outlining what it expects from community members such as registries and registrars, governments and others.

It outlines a future in which multiple “Authenticating Bodies” would hand out credentials (either directly or via referral to a central authority) to parties they deem eligible for full Whois access.

These Authenticating Bodies could include entities such as WIPO or the Trademark Clearinghouse for trademark lawyers and Interpol or Europol for law enforcement agencies.

Once suitably credentialed, Whois users would either get unexpurgated Whois access or access to only fields appropriate to their stated purpose. That’s one of many questions still open for discussion.

There could be fees levied at various stages of the process, but ICANN says there should be a study of the financial implications of the model before a decision is made.

Whois users would have to agree to a code of conduct specific to their role (cop, lawyer, registrant, etc) that would limit how they could use the data they acquire.

Additionally, registrars and registries would have to log every single Whois query and hand those logs over to ICANN for compliance and audit purposes. ICANN said:

based on initial discussions with members of the Article 29 Working Party, ICANN proposes that registry operators and registrars would be required to maintain audit logs of domain name queries for non-public WHOIS data, unless logging a particular entry is contrary to a relevant court order. The logs would be available to ICANN org for audit/compliance purposes, relevant data protection authorities, the registrant, or pursuant to a court order.

On the higher-level question of who should be given the keys to the new gates Whois — it’s calling them “Eligible User Groups” — ICANN wants to outsource the difficult decisions to either governments or, as a backstop, the ICANN community.

The proposal says: “Eligible User Groups might include intellectual property rights holders, law enforcement authorities, operational security researchers, and individual registrants.”

It wants the European Economic Area members of its Governmental Advisory Committee, and then the GAC as a whole, to “identify or facilitate identification of broad categories” of eligible groups.

ICANN’s next public meeting, ICANN 62, kicks off in Panama at the weekend, so the GAC’s next formal communique, which could address this issue, is about a week away.

ICANN also wants the GAC to help it identify potential Authenticating Bodies that would hand out credentials.

But the GAC, in its most recent communique, has already declined such a role, saying in March that it “does not envision an operational role in designing and implementing the proposed accreditation programs”.

If it sticks with that position, ICANN says it will turn to the community to have this difficult conversation.

It notes specifically the informal working group that is currently developing a “community” Accreditation & Access Model For Non-Public WHOIS Data.

This group is fairly controversial as it is perceived by some, fairly I think, as being dominated by intellectual property interests.

The group’s draft model is already in version 1.6 (pdf), and at 47 pages is much more detailed than ICANN’s proposal, but its low-traffic mailing list has almost no contracted parties on board and the IP guys are very decidedly holding the pen.

There’s also a separate draft, the Palage Differentiated Registrant Data Access Model (or “Philly Special”) (Word doc), written by consultant Michael Palage, which has received even less public discussion.

ICANN’s proposal alludes to these drafts, but it does not formally endorse either as some had feared. It does, however, provide a table (pdf) comparing its own model to the other two.

What do not get a mention are the access models already being implemented by individual registrars.

Notably, Tucows is ready to launch TieredAccess.com, a portal for would-be Whois users to obtain credentials to view Tucows-managed Whois records.

This system grants varying levels of access to “law enforcement, commercial litigation interests, and security researchers”, with law enforcement given the highest level of access, Tucows explained in a blog post yesterday.

That policy is based on the GDPR principle of “data minimization”, which is the key reason it’s currently embroiled in an ICANN lawsuit (unrelated to accreditation) in Germany.

Anyway, now that ICANN has published its own starting point proposal, it is now expected that the community will start to discuss the draft in a more formal ICANN setting. There are several sessions devoted to GDPR and Whois in Panama.

ICANN also expects to take the proposal to the European Data Protection Board, the EU committee of data protection authorities that replaced the Article 29 Working Party when GDPR kicked in last month.

However, in order for any of this to become binding on registries and registrars it will have to be baked into their contracts, which will mean it going through the regular ICANN policy development process, and it’s still not clear how much enthusiasm there is for that step happening soon.

After ICANN nod, MMX buys .xxx

MMX has closed the acquisition of porn-focused ICM Registry, after receiving the all-clear from ICANN for the contract transfers.

The deal is worth roughly $41 million — $10 million cash and about $31 million in stock.

ICM runs .xxx from the 2003 gTLD application round (though it didn’t go live until 2011) and .porn, .adult and .sex from the 2012 round.

MMX, which now has 29 fully-owned TLDs and another five in partnerships, will now become roughly a quarter-owned by former ICM employees and its back-end provider, Afilias.

ICM president Stuart Lawley now owns 15% of MMX and is its largest shareholder.

CEO Toby Hall said in a statement to the markets that he has “identified a number areas of potential growth and synergy”.

The company noted that the deal increases the share of its revenue coming from the US and Europe, implicitly highlighting the reduction of its exposure to the volatile Chinese market, where .vip has been its biggest money-spinner to date.

ICM had something like 152,000 .xxx domains under management at the last count, but over 80,000 of those are reservations. It has about 92,000 names in its zone file currently.

The three 2012-round names are faring less well, with about 8,000 to 10,000 names apiece in their zones.

Somebody once jokingly told me that ICM stood for “Internet Cash Machine”, due to the perception that porn-focused names would sell like, well, porn. Just thought I’d mention that.

In GDPR case, ICANN ready to fight Tucows to the bitter end

Kevin Murphy, June 14, 2018, Domain Policy

ICANN has appealed its recent court defeat as it attempts to force a Tucows subsidiary to carry on collecting full Whois data from customers.

The org said yesterday that it is taking its lawsuit against Germany-based EPAG to a higher court and has asked it to bounce the case up to the European Court of Justice, as the first test case of the new General Data Protection Regulation.

In its appeal, an English translation (pdf) of which has been published, ICANN argues that the Higher Regional Court of Cologne must provide an interpretation of GDPR in order to rule on its request for an injunction.

And if it does, ICANN says, then it is obliged by the GDPR itself to refer that question to the ECJ, Europe’s highest judicial authority.

The case concerns Tucows’ refusal to carry on collecting contact information about the administrative and technical contacts for each domain name it sells, which it is contractually obliged to do under ICANN’s Whois policy.

These are the Admin-C and Tech-C fields that complement the registrant’s own contact information, which Tucows is of course still collecting.

Tucows says that these extra fields are unnecessary, and that GDPR demands it minimize the amount of data it collects to only that which it strictly needs to execute the registration contact.

It also argues that, if the Admin-C and Tech-C are third parties, it has no business collecting any data on them at all.

According to Tucows legal filings, more than half of its 10 million domains have identical data for all three contacts, and in more than three quarters of cases the registrant and Admin-C are identical.

In its appeal, ICANN argues that the data is “crucial for the objectives of a secure domain name system, including but not limited to the legitimate purposes of consumer protection,
investigation of cybercrime, DNS abuse and intellectual property protection and law enforcement needs”.

ICANN uses Tucows’ own numbers against it, pointing out that if Tucow has 7.5 million domains with shared registrant and Admin-C data, it therefore has 2.5 million domains where the Admin-C is a different person or entity, proving the utility of these records.

It says that registrars must continue to collect the disputed data, at the very least if it has secured consent from the third parties named.

ICANN says that nothing in the Whois policy requires personal data to be collected on “natural persons” — Admin-C and Tech-C could quite easily be legal persons — therefore there is no direct clash with GDPR, which only covers natural persons.

Its appeal, in translation, reads: “the GDPR is irrelevant if no data about natural persons are collected. In this respect, the Defendant is contractually obliged to collect such data, and failure to do so violates its contract with the Applicant.”

It goes on to argue that even if the registrant chooses to provide natural-person data, that’s still perfectly fine as a “legitimate purpose” under GDPR.

ICANN was handed a blow last month after a Bonn-based court refused to give it an injunction obliging EPAG (and, by inference, all registrars) to continue collecting Admin-C and Tech-C.

The lower court had said that registrants would be able to continue to voluntarily provide Admin-C and Tech-C, but ICANN’s appeal points out that this is not true as EPAG is no longer requesting or collecting this data.

In ICANN’s estimation, the lower court declined to comment on the GDPR implications of its decision.

It says the appeals court, referred to in translation as the “Senate”, cannot avoid interpreting GDPR if it has any hope of ruling on the injunction request.

Given the lack of GDPR case law — the regulation has only been in effect for a few weeks — ICANN reckons the German court is obliged by GDPR itself to kick the can up to the ECJ.

It says: “If the Senate is therefore convinced that the outcome of this procedure depends on the interpretation of certain provisions of the GDPR, the Senate must refer these possible questions to the ECJ for a preliminary ruling”.

It adds that should a referral happen it should happen under the ECJ’s “expedited” procedures.

An ECJ ruling has been in ICANN’s sights for some time; late last year CEO Goran Marby was pointing out that a decision from the EU’s top court would probably be the only way full legal clarity on GDPR’s intersection with Whois could be obtained.

It should be pointed out of course that this case is limited to the data collection issue.

The far, far trickier issue of when this data should be released to people who believe they have a legitimate purpose to see it — think: trademark guys — isn’t even up for discussion in the courts.

It will be, of course. Give it time.

All of ICANN’s legal filings, in the original German and unofficial translation, can be found here.