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Registrars open floodgate of Whois privacy outrage

Kevin Murphy, June 26, 2015, Domain Policy

A letter-writing campaign orchestrated by the leading domain registrars has resulted in ICANN getting hit with over 8,000 pro-privacy comments in less than a week.

It’s the largest volume of comments received by ICANN on an issue since right-wing Christian activists deluged ICANN with protests about .xxx, back in 2010.

The comments — the vast majority of them unedited template letters — were filed in response to the GNSO Privacy & Proxy Services Accreditation Issues (PPSAI) Working Group Initial Report.

That report attempts to bring privacy and proxy services, currently unregulated by ICANN, under ICANN’s contractual wing.

There are two problematic areas, as far as the registrars are concerned.

The first is the ability of trademark and copyright owners to, under certain circumstances, have the registrant of a privately registered name unmasked.

Upon receiving such a request, privacy services would have 15 days to obtain a response from their customer. They’d then have to make a call as to whether to reveal their contact information to the IP owner or not.

Possibly the most controversial aspect of this is described here:

Disclosure cannot be refused solely for lack of any of the following: (i) a court order; (ii) a subpoena; (iii) a pending civil action; or (iv) a UDRP or URS proceeding; nor can refusal to disclose be solely based on the fact that the request is founded on alleged intellectual property infringement in content on a website associated with the domain name.

In other words, the privacy services (in most cases, also the registrar) would be forced make a judgement on whether web site content is illegal, in the absence of a court order, before removing Whois privacy on a domain.

The second problematic area is an “additional statement” on domains used for commercial activity, appended to the PPSAI report, penned by MarkMonitor on behalf of Facebook, LegitScript, DomainTools, IP attorneys Smith, Gambreall & Russell, and itself.

Those companies believe it should be against the rules for anyone who commercially transacts via their web site to use Whois privacy.

Running ads on a blog, say, would be fine. But asking for, for example, credit card details in order to transact would preclude you from using privacy services.

The PPSAI working group didn’t even approach consensus on this topic, and it’s not a formal recommendation in its report.

Regardless, it’s one of the lynchpins of the current registrar letter-writing campaigns.

A page at SaveDomainPrivacy.org — the site backed by dozens of registrars big and small — describes circumstances under which somebody would need privacy even though they engage in e-commerce.

Home-based businesses, shelters for domestic abuse victims that accept donations, and political activists are all offered up as examples.

Visitors to the site are (or were — the site appears to be down right now (UPDATE: it’s back up)) invited to send a comment to ICANN supporting:

The legitimate use of privacy or proxy services to keep personal information private, protect physical safety, and prevent identity theft

The use of privacy services by all, for all legal purposes, regardless of whether the website is “commercial”

That privacy providers should not be forced to reveal my private information without verifiable evidence of wrongdoing

The content of the site was the subject of a sharp disagreement between MarkMonitor and Tucows executives last Saturday during ICANN 53. I’d tell you exactly what was said, but the recording of the relevant part of the GNSO Saturday session has not yet been published by ICANN.

Another site, which seems to be responsible for the majority of the 8,000+ comments received this week, is backed by the registrar NameCheap and the digital civil rights groups the Electronic Frontier Foundation and Fight For The Future.

NameCheap appears to be trying to build on the reputation it started to create for itself when it opposed the Stop Online Piracy Act a few years ago, going to so far as to link the Whois privacy reforms to SOPA on the campaign web site, which says:

Your privacy provider could be forced to publish your contact data in WHOIS or even give it out to anyone who complains about your website, without due process. Why should a small business owner have to publicize her home address just to have a website?

We think your privacy should be protected, regardless of whether your website is personal or commercial, and your confidential info should not be revealed without due process. If you agree, it’s time to tell ICANN.

The EFF’s involvement seems to have grabbed the attention of many reporters in the general tech press, generating dozens of headlines this week.

The public comment period on the PPSAI initial report ends July 7.

If it continues to attract attention, it could wind up being ICANN’s most-subscribed comment period ever.

Do geeks care about privacy more than Christians care about porn? We’ll find out in a week and a half.

ICANN bans closed generic gTLDs, for now

Kevin Murphy, June 24, 2015, Domain Policy

ICANN has slapped a de facto ban on so-called “closed generic” gTLDs, at least for the remaining 2012 round applicants.

The ICANN board’s New gTLD Program Committee passed a resolution Sunday that un-freezes the remaining new gTLD applications that envisage a namespace wholly controlled by the applicant.

The affected strings are .hotels, .dvr and .grocery, which are uncontested, as well as .food, .data and .phone, which are contested by one or two other applicants.

The NGPC said five strings are affected, but the ICANN web site currently shows these six.

The resolution allows the contested strings to head to dispute resolution or auction, but makes it clear that “exclusive generic gTLDs” will not be able to sign a registry contract.

Instead, they will either have to withdraw their applications (receiving a partial refund), drop their exclusivity plans, or have their applications carried over to the second new gTLD round.

The GNSO has been asked to develop a policy on closed generics for the second round, which is still probably years away.

It’s not clear whether other applicants would be able to apply for strings that are carried over, potentially making the close generic applicant fight two contention sets.

The NGPC decision comes over two years after the Governmental Advisory Committee advised that closed generics must serve “a public interest goal” or be rejected.

This weekend’s resolution sidesteps the “public interest” question altogether.

Chehade confirms he’ll be gone before IANA transition is done

Kevin Murphy, June 22, 2015, Domain Policy

ICANN CEO Fadi Chehade has laid out his current best thinking for the timeline of the IANA’s transition from US government oversight, and he’ll be gone well before it’s done.

At the opening ceremony of the ICANN 53 meeting in Buenos Aires today, Chehade described how June 2016 is a likely date for the divorce; three months after his resignation takes effect.

Chehade said:

I asked our community leaders, “Based on your plans and what you’re seeing and what you know today, when could that finish?” The answers that are coming back to us seem to indicate that by ICANN 56, which will be back in Latin America in the middle of 2016, a year from today, the contract with the US Government could come to an end.

He showed a slide that broke the remaining work of the transition into three phases.

Work being carried out within ICANN is not entirely to blame for the length of time the process will take.

The US National Telecommunications and Information Administration needs 60 to 90 days to review the final community-developed transition proposal.

And under forthcoming US legislation, 30 legislative days will be required for the US Congress to review the NTIA’s approval of the plan.

Thirty legislative days, Chehade explained, could mean as many as 60 actual days, depending on the yet-unpublished 2016 Congressional calendar.

He urged the community focus hard on Phase One in his graphic — actually producing a consensus transition plan.

The target for delivery of this is the next ICANN meeting, 54, which will take place in Dublin, Ireland from October 18 to October 22 this year.

ICANN 53 launches with risky Caitlyn Jenner joke

Kevin Murphy, June 22, 2015, Domain Policy

ICANN has risked the ire of community members by kicking off ICANN 53 today with a joke referencing transgender celebrity Bruce/Caitlyn Jenner.

Just moments into his opening address this hour, ICANN chair Steve Crocker worked a joke around before/after photos of the former athlete.

[UPDATE: Crocker has issued an apology. See the bottom of this post.]

Jenner

This is what Crocker said:

What are we really talking about here? What is this thing we call “the transition”? And why has it captivated the attention of so many?

[Jenner photo appears]

Ahhh, no. That’s not quite the transition that I’m referring to. I’m only referring to the IANA stewardship transition.

Reaction from attendees was mixed.

The joke got laughter from the room.

On Twitter, some were less amused.

I’ll be the first to leap to the defense of the joke.

I laughed. I don’t think it was offensive or insulting to Jenner or to trans people in general — it was more a joke about celebrity culture — and I don’t think any offense was intended.

If I had seen it on TV, I wouldn’t have batted an eyelid. I even made a joke about Jenner’s Vanity Fair cover, on Twitter, a couple weeks back.

But a lot of ICANN regulars are more sensitive about this kind of thing. I’ve had conversations with people who believe it was highly inappropriate for CEO Fadi Chehade to congratulate a participant, from the stage during a previous meeting, on her visible pregnancy.

For ICANN’s chairman to make a joke about a transgender person’s transition at the opening ceremony of a major meeting? That’s a misjudgment, in my view.

ICANN, recall, has recently been bombarded with letters from equal rights groups over the decision by the Economist Intelligence Unit to reject a .gay gTLD applicant’s Community Priority Evaluation.

EIU based its decision in large part on the fact that the proposed .gay community included transgender and intersex people, which the EIU said were not encapsulated by the string “gay”.

ICANN has expected standards of behavior for its meetings that cover such things as sexism and homophobia.

UPDATE: Crocker issued the following statement on ICANN’s Facebook account:

I understand that I may have inadvertently offended some during my speech at this morning’s welcome session with a reference to Caitlyn Jenner, which was intended as a salute. It opened up an important dialog that is consistent with our principles.

Please know that I view Caitlyn’s decision to be heroic and brave. I made this reference solely because of the world attention on a transition and it was not intended in any way, shape or form to be a criticism of her heroic decision. I was in no way making light or poking fun at her transition, but rather playing on the world attention on a “transition.” I apologize if my comments were perceived in a different manner than I intended them.

Dr. Stephen Crocker

ICANN Board Chair

Photo credit: James Bladel.

URS fight brewing at ICANN 53

Should the Uniform Rapid Suspension process spread from new gTLDs to incumbent gTLDs, possibly including .com?

That’s been the subject of some strong disagreements during the opening weekend of ICANN 53, which formally kicks off in Buenos Aires today.

During sessions of the Generic Names Supporting Organization and the ICANN board and staff, ICANN was accused of trying to circumvent policy-making processes by forcing URS into the .travel, .pro and .cat registry agreements, which are up for renewal.

ICANN executives denied doing any such thing, saying the three registries volunteered to have URS included in their new contracts, which are modeled on the standard new gTLD Registry Agreement.

“It’s just something we’ve suggested and they’ve taken up,” said Cyrus Namazi, ICANN’s vice president of domain name services.

If a registry wants to increase the number of rights protection mechanisms in its gTLD, why not let them, ICANN execs asked, pointing out that loads of new gTLDs have implemented extra RPMs voluntarily.

ICANN admits that it stands to benefit from operational efficiencies when its registry agreements are more uniform.

Opponents pointed out that there’s a difference between Donuts, say, having its bespoke, voluntary Domain Protected Marks List, and bilaterally putting the URS into an enforceable ICANN contract.

URS is not a formal Consensus Policy, they say, unlike UDRP. Consensus Policies apply to all gTLDs, whereas URS was created by ICANN for new gTLDs alone.

Arguably leading the fight against URS osmosis is Phil Corwin, counsel for Internet Commerce Association, which doesn’t want its clients’ vast portfolios of .com domains subject to URS.

He maintained over the weekend that his beef was with the process through which URS was making its way into proposed legacy gTLD contracts.

It shouldn’t be forced upon legacy gTLDs without a Consensus Policy, he said.

While the GNSO, ICANN staff and board spent about an hour talking about “process” over the weekend, it was left to director Chris Disspain to point out that that was basically a smokescreen for an argument about whether the URS should be used in other gTLDs.

He’s right, but the GNSO is split on this issue in unusual ways.

Corwin enjoys the support of the Business Constituency, of which he is a member, in terms of his process criticisms if not his criticisms of RPMs more generally.

ICA does also have backing from some registrars (which bear the support costs of dealing with customers affected by URS), from the pro-registrant Non-Commercial Stakeholders Group, and from groups such as the Electronic Frontier Foundation.

The Intellectual Property Constituency thinks that the process is just fine — .travel et al can sign up to URS if they want to.

While the registries have not yet put forward a joint position, the IPC’s view has been more or less echoed by Donuts, which owns the largest portfolio of new gTLDs.

The public comment period for the .travel contract ended yesterday. Comments can be read here. Comment periods on .cat and .pro close July 7.

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