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Transferring domains gets more complex this week

Kevin Murphy, November 28, 2016, Domain Registrars

A new anti-hijacking domain name transfer policy comes into effect this week at all ICANN-accredited registrars, potentially complicating the process of not only selling domains but also updating your own Whois records.

But many registrars have already rewritten their terms of service to make the new rules as hassle-free as possible (and essentially pointless).

From December 1, the old ICANN Inter-Registrar Transfer Policy starts governing inter-registrant transfers too, becoming simply the Transfer Policy.

Now, when you make updates to your Whois records that appear to suggest new ownership, you’ll have to respond to one or two confirmation emails, text messages or phone calls.

The policy change is the latest output of the interminable IRTP work within ICANN’s GNSO, and is designed to help prevent domain hijacking.

But because the changes are likely to be poorly understood by registrants at the outset, it’s possible some friction could be added to domain transfers.

Under the new Transfer Policy, you will have to respond to confirmation emails if you make any of the following:

  • A change to the Registered Name Holder’s name or organization that does not appear to be merely a typographical correction;
  • Any change to the Registered Name Holder’s name or organization that is accompanied by a change of address or phone number;
  • Any change to the Registered Name Holder’s email address.

While registrars have some leeway to define “typographical correction” in their implementation, the notes to the policy seem to envisage single-character transposition and omission errors.

Registrants changing their last names due to marriage or divorce would apparently trigger the confirmation emails, as would transfers between parent and subsidiary companies.

The policy requires both the gaining and losing registrant to verify the “transfer”, so if the registrant hasn’t actually changed they’ll have to respond to two emails to confirm the desired changes.

Making any of the three changes listed above will also cause the unpopular 60-day transfer lock mechanism — which stops people changing registrars — to trigger, unless the registrant has previously opted out.

Registrars are obliged to advise customers that if the change of registrant is a prelude to an inter-registrar transfer, they’d be better off transferring to the new registrar first.

The new policy is not universally popular even among registrars, where complexity can lead to mistakes and therefore support costs.

Fortunately for them, the Transfer Policy introduces the concept of “Designated Agents” — basically middlemen that can approve registrant changes on your behalf.

Some registrars are taking advantage of this exception to basically make the confirmation aspects of the new policy moot.

Calling the confirmation emails an “unnecessary burden”, EuroDNS said last week that it has unilaterally made itself every customer’s Designated Agent by modifying its terms of service.

Many other registrars, including Tucows/OpenSRS, NameCheap and Name.com appear to be doing exactly the same thing.

In other words, many registrants will not see any changes as a result of the new Transfer Policy.

The truism that there’s no domain name policy that cannot be circumvented with a middleman appears to be holding.

Who are the five new ICANN directors?

Kevin Murphy, November 15, 2016, Domain Policy

Almost a quarter of ICANN’s board of directors were replaced at the organization’s annual general meeting in Hyderabad last week.

Five of the 21-strong board are fresh faces, though many will be familiar to regular ICANN and industry watchers.

They hail from five different countries in four of ICANN’s five regions. One is female.

They replace Bruce Tonkin, Erika Mann, Suzanne Woolf, Kuo-Wei Wu and Bruno Lanvin, each of whom have served terms between three and nine years.

The newcomers all get initial, renewable, three-year terms.

Here’s some abbreviated bios of the newly appointed directors.

Maarten Botterman

Appointed by the Nominating Committee, Botterman is an internet governance consultant with strong historic ties to the registry industry.

From the Netherlands, he was chairman of .org manager Public Interest Registry for eight years until July 2016 and served as its interim CEO for several months in 2010.

Prior to that, he held advisory roles in the Dutch and European Union governments.

Becky Burr

American Burr replaces term-limited Bruce Tonkin as the GNSO contracted parties representative to the board. Since 2012 she’s been chief privacy officer of Neustar. Before that, she was a lawyer in private practice.

There are very few people more intimately familiar with ICANN. In the late 1990s, while working at the US National Telecommunications and Information Administration, she was a key player in ICANN’s creation.

Khaled Koubaa

Koubaa, a Tunisian, is founder of the Arab World Internet Institute, a non-profit dedicated to improving internet knowledge in the Arab region, and until recently head of Middle-East and North Africa public policy at Google.

He was selected by the NomCom. He is also a former member of NomCom, having sat on it during its 2008/9 session. He’s also been a volunteer adviser to PIR in the past.

Akinori Maemura

Hailing from Japan, Maemura works for IP address registry JPNIC. He was selected for the ICANN board by the Address Supporting Organization.

Until recently, he was chair of the executive council of APNIC, which is responsible for distributing IP addresses in the Asia-Pacific region.

Kaveh Ranjbar

Iranian-born, Netherlands-based Ranjbar is chief information officer of RIPE NCC, the European IP address authority.

He was appointed to the ICANN board by the Root Server System Advisory Committee.

.food goes live, and it’s a closed generic

Kevin Murphy, November 15, 2016, Domain Registries

The new gTLD .food went live in the DNS on Friday, but nobody except the registry will be able to register domains there.

In what I would argue is one of the new gTLD program’s biggest failures, .food will be a dot-brand, closed to all except the “brand” owner.

The registry is Lifestyle Domain Holdings, a subsidiary of US media company Scripps Networks.

Scripps runs the Food Network TV station in the States and the site Food.com. It has a trademark on the word “Food”.

Its registry agreement for .food, signed back in April, includes Specification 13, which allows registries to restrict all the second-level domains to themselves and their affiliates.

So food producers, restaurants, chefs and the like will never be able to use .food for their web sites.

ICANN signed the contract with Scripps despite objections from several entities including the Australian government, which warned “restricting common generic strings, such as .food, for the exclusive use of a single entity could have a negative impact on competition”.

Under ICANN rules hastily cobbled together after outrage over so-called “closed generics”, a registry cannot run as a dot-brand a gTLD that is:

a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others.

Almost all applications flagged as closed generics were subsequently amended to make them restricted but not brand-exclusive. Scripps was the major hold-out.

The loophole that allowed .food to stay in exclusive hands appears to be that Scripps’ trademark on “Food” covers television, rather than food.

If .food winds up publishing content about food, such as recipes and healthy eating advice, I’d argue that it would go against the spirit of the rules on closed generics.

It would be a bit like Apple getting .apple as a Spec 13 dot-brand and then using the gTLD to publish content about the fruit rather than computers.

No sites are currently live in .food.

Verisign and Afilias in open war over $135m .web

Kevin Murphy, November 11, 2016, Domain Registries

Two of the industry’s oldest and biggest gTLD registries escalated their fight over the .web gTLD auction this week, trading blows in print and in public.

Verisign, accused by Afilias of breaking the rules when it committed $130 million to secure .web for itself, has now turned the tables on its rival.

It accuses Afilias of itself breaking the auction rules and of trying to emotionally blackmail ICANN into reversing the auction on spurious political grounds.

The .web auction was won by obscure shell-company applicant Nu Dot Co with a record-setting $135 million bid back in July.

It quickly emerged, as had been suspected for a few weeks beforehand, that Verisign was footing the bill for the NDC bid.

The plan is that NDC will transfer its .web ICANN contract to Verisign after it is awarded, assuming ICANN consents to the transfer.

Afilias has since revealed that it came second in the auction. It now wants ICANN to overturn the result of the auction, awarding .web to Afilias as runner-up instead.

The company argues that NDC broke the new gTLD Applicant Guidebook rules by refusing to disclose that it had become controlled by Verisign.

It’s now trying to frame the .web debate as ICANN’s “first test of accountability” under the new, independent, post-IANA transition regime.

Afilias director Jonathan Robinson posted on CircleID:

If ICANN permits the auction result to stand, it may not only invite further flouting of its rules, it will grant the new TLD with the highest potential to the only entity with a dominant market position. This would diminish competition and consumer choice and directly contradict ICANN’s values and Bylaws.

Given the controversy over ICANN’s independence, all eyes will be on the ICANN board to see if it is focused on doing the right thing. It’s time for the ICANN board to show resolve and to demonstrate that it is a strong, independent body acting according to the letter and spirit of its own AGB and bylaws and, perhaps most importantly of all, to actively demonstrate its commitment to act independently and in the global public interest.

Speaking at the first of ICANN’s two public forum sessions at ICANN 57 in Hyderabad, India this week, Robinson echoed that call, telling the ICANN board:

You are a credible, independent-minded, and respected board who recognized the enhanced scrutiny that goes with the post-transition environment. Indeed, this may well be the first test of your resolve in this new environment. You have the opportunity to deal with the situation by firmly applying your own rules and your own ICANN bylaw-enshrined core value to introduce and promote competition in domain names. We strongly urge you to do so.

Then, after a few months of relative quiet on the subject, Verisign and NDC this week came out swinging.

First, in a joint blog post, the companies rubbished Afilias’ attempt to bring the IANA transition into the debate. They wrote:

Afilias does a great disservice to ICANN and the entire Internet community by attempting to make this issue a referendum on ICANN by entitling its post “ICANN’s First Test of Accountability.” Afilias frames its test for ICANN’s new role as an “independent manager of the Internet’s addressing system,” by asserting that ICANN can only pass this test if it disqualifies NDC and bars Verisign from acquiring rights to the .web new gTLD. In this case, Afilias’ position is based on nothing more than deflection, smoke and cynical self-interest.

Speaking at the public forum in Hyderabad on Wednesday, Verisign senior VP Pat Kane said:

This is not a test for the board. This issue is not a test for the newly empowered community. It is a test of our ability to utilize the processes and the tools that we’ve developed over the past 20 years for dispute resolution.

Verisign instead claims that Afilias’ real motivation could be to force .web to a private auction, where it can be assured an eight-figure payday for losing.

NDC/Verisign won .web at a so-called “last resort” auction, overseen by ICANN, in which the funds raised go into a pool to be used for some yet-to-be-determined public benefit cause.

That robbed rival applicants, including Afilias, of the equal share of the proceeds they would have received had the contention set been settled via the usual private auction process.

But Verisign/NDC, in their post, claim Afilias wants to force .web back to private auction.

Afilias’ allegations of Applicant Guidebook violations by NDC are nothing more than a pretext to conduct a “private” instead of a “public” auction, or to eliminate a competitor for the .web new gTLD and capture it for less than the market price.

Verisign says that NDC was under no obligation to notify ICANN of a change of ownership or control because no change of ownership or control has occurred.

It says the two companies have an “arms-length contract” which saw Verisign pay for the auction and NDC commit to ask ICANN to transfer its .web Registry Agreement to Verisign.

It’s not unlike the deal Donuts had with Rightside, covering over a hundred gTLD applications, Verisign says.

The contract between NDC and Verisign did not assign to Verisign any rights in NDC’s application, nor did Verisign take any ownership or management interest in NDC (let alone control of it). NDC has always been and always will be the owner of its application

Not content with defending itself from allegations of wrongdoing, Verisign/NDC goes on to claim that it is instead Afilias that broke ICANN rules and therefore should have disqualified from the auction.

They allege that Afilias offered NDC a guarantee of a cash payout if it chose to go to private auction instead, and that it attempted to coerce NDC to go to private auction on July 22, which was during a “blackout period” during which bidders were forbidden from discussing bidding strategies.

During the public forum sessions at ICANN 57, ICANN directors refused to comment on statements from either side of the debate.

That’s likely because it’s a matter currently before the courts.

Fellow .web loser Donuts has already sued ICANN in California, claiming the organization failed to adequately investigate rumors that Verisign had taken over NDC.

Donuts failed to secure a restraining order preventing the .web auction from happening, but the lawsuit continues. Most recently, ICANN filed a motion attempting to have the case thrown out.

In my opinion, arguments being spouted by Verisign and Afilias both stretch credulity.

Afilias has yet to present any smoking gun showing Verisign or NDC broke the rules. Likewise, Verisign’s claim that Afilias wants to enrich itself by losing a private auction appear to be unsupported by any evidence.

New policy would ban President Trump from ICANN meetings (probably)

Kevin Murphy, November 9, 2016, Domain Policy

Those who sexually harass fellow community members could be banned from ICANN meetings under a policy proposed this week.

ICANN capThe proposal greatly expands upon an earlier version, published for comment in May, which would have banned “unwelcome hostile or intimidating behavior”.

It presents a long list of activities considered harassment, including:

  • Sexually suggestive touching
  • Grabbing, groping, kissing, fondling, hugging, stroking someone’s hair, or brushing against another’s body
  • Touching that the actor may not have intended to be sexually suggestive but which constitutes uninvited touching, such as rubbing or massaging someone’s neck or shoulders
  • Violating someone’s “personal space” after being told you are doing so
  • Leering, stalking, or suggestive whistling
  • Gesturing in a sexually suggestive manner
  • Circulating or posting written or graphic materials that show hostility or disrespect toward or that demean individuals because of Specified Characteristics as set forth above
  • Lewd or graphic comments or jokes of a sexual nature

We’re unlikely to see new President-Elect Trump keynoting at an ICANN meeting any time soon, in other words.

It’s possible that even referring to his “pussy-grabbing” antics could fall foul of the policy.

Protected “Special Characteristics” would include:

age, ancestry, color, physical or mental disability, genetic information, medical condition (cancer and genetic characteristics), marital status, national origin, race, religion, sex (which includes pregnancy, childbirth, medical conditions related to pregnancy or childbirth, gender, gender identity and gender expression), sexual orientation, citizenship, primary language, or immigration status

Under the proposal (pdf), the ICANN Ombudsman (referred to here, unusually, as the “Ombudsperson”) would have powers to punish those who he determines have been harassing others.

The powers would include:

excusing any individual responsible for inappropriate behavior from further participation in the ICANN process for a specified period of time, limiting the individual’s participation in some manner, and/or requiring satisfaction of prerequisites such as a written apology as a condition of future participation

This would all be in the discretion of the Ombudsman. There would be no requirement for the accuser to provide any corroboration or evidence.

The policy was created following a controversy earlier this year, in which a female ICANN participant accused a male participant of making comments about sandwiches in a way she found “lecherous”.

No wrongdoing was found by the Ombudsman in that case.

The new proposed policy is now open for public comment until January 27.

Photo credit: Michele Neylon