Registrars open floodgate of Whois privacy outrage

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.

Puerto Rico to host ICANN meeting next year

ICANN is to host its first second ever public meeting on a Caribbean island.
The organization’s board of directors yesterday voted in favor of holding ICANN 57 in San Juan, Puerto Rico.
Technically, this fulfills ICANN’s commitment to hold the meeting in North America, even though physically Puerto Rico is in the Caribbean.
The island is one of those oddities in terms of territories in that it inherits its ICANN region from its political overlords.
Puerto Rico is a US territory, which puts it in ICANN’s North American region. The neighboring British Virgin Islands is, according to ICANN, in Europe.
ICANN 57 will be held from October 29 to November 4 2016, at the tail end of Puerto Rico’s hurricane season. It’s the second time ICANN has visited the island, the first since 2007.
There’s no word yet on where ICANN 56, June 2016, will be held. It’s a designated slot for an Latin American/Caribbean host nation.
ICANN 55 will be held in Marrakech next March, ICANN’s board confirmed yesterday, rescheduled from March this year due to the Ebola scare.
Dublin will host ICANN 54 this coming October.

Donuts: glitch revealed price we would pay for gTLDs

The recently discovered security vulnerability in one of ICANN’s web sites revealed how much Donuts was willing to pay for contested gTLDs at auction.
This worrying claim emerged during a meeting between registries and the ICANN board of directors at ICANN 53 in Buenos Aires yesterday.
“We were probably the largest victim of the data breach,” Donuts veep Jon Nevett told the board. “We had our financial data reviewed numerous times, dozens of times. We had our relative net worth of our TLDs reviewed, so it was very damaging information.”
He was referring to the misconfiguration in the new gTLD applicants’ portal, which allowed any user to view confidential application attachments belonging to any applicant.
ICANN discovered the problem in February, two years after the portal launched. The results of a security audit were revealed in late April.
But it was not until late May that it emerged that only one person, dotBerlin CEO Dirk Krischenowski, was suspected by ICANN of having deliberately viewed data belonging to others.
Nevett said communication should have been faster.
“We were in the dark for a number of weeks about who saw the data,” he told the board. “That was troubling, as we were going to auctions in that interim period as well.”
Donuts, which applied for over 300 new gTLDs, is known to have taken a strictly numbers-driven approach to string selection and auction strategy.
If a rival in a contention set had known how much Donuts was prepared to pay for a string, it would have had a significant advantage in an auction.
In response to Nevett’s concerns, ICANN CEO Fadi Chehade said that ICANN had to do a thorough investigation before it could be sure who saw what when.

ICANN bans closed generic gTLDs, for now

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.

Freenom suspended for cybersquatting rival registrars

Freenom, the company behind .tk and other freebie ccTLDs, has had its ICANN registrar accreditation suspended for cybersquatting competing registrars including Go Daddy and Key-Systems.
OpenTLD, its registrar business, has been told it cannot accept new registrations or inbound transfers from July 8 to October 6 or until it provides ICANN with a full list of the names it squatted.
I believe it’s the first time ICANN has suspended a registrar for this reason.
The suspension notice states:

ICANN has found that OpenTLD has engaged in a pattern and practice of trafficking in or use of domain names identical or confusingly similar to a trademark or service mark of a third party in which the Registered Name Holder has no rights or legitimate interest

That’s a long-winded way of saying “massive cybersquatting”.
ICANN is basing its claims on two UDRP cases that Freenom and its CEO, Joost Zuurbier, lost.
According to WIPO panelists in Key-Systems GmbH v. Joost Zuurbier, OpenTLD B.V. and NetEarth Group, Inc. v. Stichting OpenTLD WHOIS Proxy, the company squatted at least seven of its rivals’ trademarks.
The domains were netearthone.biz, rrpproxy.me, key-systems.cc, resellerclub.tk, resellbiz.biz, godaddy.cf and resello.ws.
According to the UDRP decisions, Freenom used the domains to try to entice resellers of the other registrars over to OpenTLD.
It bought the competing registrars’ trademarks as search keywords on Google’s advertising platform, a WIPO panelist found. If you searched Google for Key-Systems trademark “RRPproxy”, for example, you’d get an ad linking to rrpproxy.me.
In some cases the names were registered behind Freenom’s in-house privacy service. In others, Zuurbier and OpenTLD were listed plainly as the registrants.
The WIPO panelists also found that Freenon shirked its duties under the UDRP as registrar, deleting the squatted domains rather than locking them, which essentially amounted to “cyberflight”.
It all looks pretty bad for Freenom, which only gained its accreditation two years ago.
To avoid termination, it has to provide ICANN with a list of all of its trademark infringing names, agree to transfer them to the mark owners or delete them, and bunch of other stuff.
Here’s the letter.

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

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

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.]

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.

Excuse me @ICANN, is this equality, respect and one world for EVERYONE? Apologise in order #icann53 #notfunny!!!!! pic.twitter.com/Bn2926OlXk

— Aida Mahmutović (@Aidazzles) June 22, 2015

#ICANN53 starts with a joke at the expense of the LGBTQI population. I guess that is better than a prayer. But not a lot.

— avri (@avri) June 22, 2015

Ehhh….what just happened there. Seriously #ICANN, some things one do not joke about.

— Patrik Fältström (@patrikhson) June 22, 2015

Slow start from Crocker here. Apparently ICANN meetings are supposed in Summer and jokes about transgender transition are funny #sheesh

— Adrian Kinderis (@AdrianKinderis) June 22, 2015

Unfortunate & sad that on such a global platform ICANN has used Caitlyn Jenner's image to generate a laugh instead of applauding her courage

— dotgay LLC (@dotgay) June 22, 2015

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.

Chehade makes case for insider CEO in frank assessment of failings

Outgoing ICANN CEO has made a case for his successor to be somebody already intimately familiar with the ICANN community.
His remarks, which stopped short of explicitly recommending an insider take over his position when he leaves next March, came during a frank self-assessment of his shortcomings in the job at ICANN 53 in Buenos Aires yesterday.
“There are many things I could have done better or done differently,” Chehade said before an audience of Generic Names Supporting Organization members.
He freely confessed to jumping headlong into the job before he fully understood ICANN as a community; how it functions and where the real power is supposed to be wielded.
The key example of that, he said, was the creation of some of the rules now in use at the Trademark Clearinghouse.
“I meant well, I intended well, but I broke every process in the system,” he said. “I didn’t know, and I really didn’t realize that I didn’t until later.”
That’s a reference to late 2012, when Chehade convened a series of secretive, invitation-only community meetings that gave the Intellectual Property Constituency yet another chance to have rights protection mechanisms strengthened.
Chehade famously even asked participants to not even live-tweet during the discussions, it was not webcast, and recordings of (some of) the sessions were not published until DI filed a Documentary Information Disclosure Process request.
These “strawman” meetings culminated in the IPC being given the “Trademark+50” mechanism, which allows variations on trademarks to be protected, and the Non-Commercial Users Constituency to claim its voice had been under-represented and largely ignored.
For this reason and others, Chehade now says his successor had better have “very very good preparation and orientation”.
“Spending about seven minutes with the prior CEO before I took this job is not something I recommend,” he said, apparently a reference to time spent with his predecessor, Rod Beckstrom.
“This is a very complex job, and a very layered role, and I had no orientation to speak of,” he said. “If he or she is not someone who knows this community, this person better have a lot of orientation.”
He described how it took him some time to get to grips with the idea that he’s not a CEO in the conventional sense, able to make changes at will and answerable only to the board of directors.
“I am not a CEO,” he said. “There are types of CEO and this is a servant CEO job. Until you get that you keep hitting walls.”
He also described the job as “a politician without a flag” and “community facilitator”.
His biggest regret, he said, was failing to immediately realize that the facilitator function was the most important part of the job.
It took a clash last year about accountability being a key part of the IANA transition for him to realize this, he said.
“I hope you will all contribute in finding a person who will serve you well from day one, not like me, who from day one will arrive understanding all the parts of this,” he said.
Whether he intended it or not, this sounds like Chehade would err towards hiring an ICANN community veteran as his successor.
He said his replacement should be somebody who “knows all the things I learned, hopefully on day one, or on month one. Or on year one, but not three years in.”
It should be noted that Chehade turned down the chance to be a part of the team that will choose his successor.
Chehade’s position appears to diametrically opposed that of his predecessor. During Beckstrom’s tenure as “outgoing” CEO, he explicitly recommended an outsider take over the role.
“I hope that the person who replaces me will be of the highest integrity and has no recent or current commercial or career interests in the domain industry, because ICANN’s fairness, objectivity and independence are of paramount importance to the future of the internet,” Beckstrom said in October 2011.
Beckstrom’s remarks came as ICANN came under intensified scrutiny over perceived conflicts of interest.
Peter Dengate Thrush had recently come to the end of his tenure as ICANN chair, pushing through the (premature?) approval of the new gTLD program in his last few days on the job and joining applicant Minds + Machines just a few weeks later.
Chehade’s remarks yesterday come as ICANN is in a different position.
When he leaves next March, ICANN will either be freshly decoupled from its oversight relationship with the US government, or will be on the verge of it.
It won’t be an easy time for a new CEO to take over, trying to steer the organization under a fresh, untested set of governance principles.
When it comes to “insiders” with intimate knowledge of ICANN, there are a few community members not already on ICANN staff I could imagine pitching themselves for the CEO’s job.
But there’s also the possibility of an internal hire.
Remember, one of Chehade’s first actions upon taking the job was to hire the two other people who had been on the board’s final shortlist — Tarek Kamel and Sally Costerton.
Kamel, once a controversial minister in Mubarak’s Egyptian government, is currently Chehade’s senior advisor for government engagement.
Costerton was London-based EMEA CEO at the public relations agency Hill & Knowlton. Today, she’s the senior advisor for global stakeholder engagement. She maintains a blog about women in leadership positions that some readers might find eye-opening in the ICANN CEO search context.
Both were considered CEO material three years ago, and both now have three years of ICANN experience to put on their job applications (if they choose to file them).
So why is Chehade leaving ICANN? The persistent rumors have him either being offered the job of his dreams elsewhere, or suffering a severe case of ICANN burnout.
But yesterday he left little doubt whether his next job, which it has been confirmed he already has lined up, would be better that his current one.
“[ICANN CEO] is a beautiful job. It is a fantastic job. It is better job that I’ve ever had, or will ever have I think. It is amazing. Lucky is the person who will take my place,” he said.
So, um, why quit?
“The next phase of ICANN requires a different person. Don’t go rehire Fadi. You don’t need another Fadi. I was there for a purpose, for a time,” he said. “I am a classic change agent CEO. I either build things from scratch… or I transform things. ICANN doesn’t need this now.”
Asked to comment on his biggest successes, Chehade deferred, saying his legacy was something to talk about at a different time.

Famous Four following .sucks playbook with premium pricing for brands?

New gTLD registry Famous Four Media has slapped general availability prices of $500 and up on domain names matching famous brands.
The company plans to shortly introduce eight “premium” pricing tiers, ranging from $200 a year to $10,000 a year.
The first to launch, on July 8, will be its “brand protection tier”, which will carry a $498 registry fee.
Famous Four told its registrars that the tier “will provide an additional deterrent to cyber-squatters for well-known brands ensuring that domain names in this tier will not be eligible for price promotions”.
The gTLDs .date, .faith and .review will be first to use the tiered pricing structure.
It’s not entirely clear what brands will be a part of the $498 tier, or how the registry has compiled its list, but registrars have been given the ability to ask for their clients’ trademarks to be included.
I asked Famous Four for clarification a few days ago but have not yet had a response.
While other registries, such as Donuts, used tiered pricing for GA domains, I’m only aware of one other that puts premium prices on brands: .sucks.
Vox Populi has a trademark-heavy list of .sucks domains it calls Market Premium — formerly Sunrise Premium — that carry a $1,999-a-year registry fee.
Unlike Vox Pop, Famous Four does not appear to be planning a subsidy that would make brand-match domains available at much cheaper prices to third parties.
Famous Four’s gTLDs have seen huge growth in the last month or two, largely because it’s been selling domains at a loss.
.science, for example, has over 300,000 registrations — making it the third-largest new gTLD — because Famous Four’s registry fee has been discounted to just $0.25 from May to July.
The same discount applies to .party (over 195,000 names in its zone) and .webcam (over 60,000).
Those three gTLDs account for exactly half of the over 22,000 spam attacks that used new gTLD domains in March and April, according to Architelos’ latest abuse report.
With names available at such cheap prices, it would not be surprising if cybersquatters are abusing these gTLDs as much as the spammers.
Will intellectual property owners believe a $498+ reg fee is a useful deterrent to cybersquatting?
Or will they look upon this move as “predatory”, as they did with .sucks?