ICANN scores win in single-letter .com lawsuit

A Los Angeles court has handed ICANN a victory in a lawsuit filed against it by a domainer who thinks he has the rights to register all the remaining single-character .com domains.

Bryan Tallman of VerandaGlobal.com sued ICANN back in August, claiming the Org was breaking the law by refusing to allow him to register domains such as 1.com and A.com.

He already owns the matching domains in Verisign’s Chinese, Japanese and Hebrew .com IDNs, such as A.קום (A.xn--9dbq2a) and 1.コム (1.xn--tckwe), and says previous Verisign statements mean this gives him the right to the equivalents in vanilla .com.

These domains would very likely be worth tens of millions of dollars apiece. Verisign has held almost all single-character domain names in registry-reserved status since the 1990s. A few, notably Elon Musk’s x.com, pre-date the reservation.

Tallman claimed unfair competition, breach of contract, negligence and fraud and sought a declaratory judgement stating that ICANN be forced to transfer to him all of the 10 digits and all 23 of the remaining unregistered letters in .com, along with some matching .net names.

Pretty outlandish stuff, based on some pretty flimsy arguments.

ICANN filed a demurrer last year, objecting to the suit and asking the Superior Court of California in LA to throw it out, and the judge mostly agreed. In a February ruling (pdf), published recently by ICANN, he threw out all seven of Tallman’s claims.

Tallman was given permission to re-state and re-file five of the claims within 30 days, but his demand for a declaratory judgement was ruled out completely as being irreparably broken.

Cosmetics brand terminates its gTLD

Brazilian cosmetics maker Natura has become the latest new gTLD operator to tell ICANN to terminate its dot-brand contract.

The company said it is “no longer interested” in operating .natura, and ICANN has agreed to end the Registry Agreement.

Natura was not using the domain beyond the mandatory nic.natura, but my records show that it did start experimenting with usage about five years ago.

A handful of domains, including global.natura, app.natura and innovationchallenge.natura were active and resolved to full-content web sites, but these were all shut off at the end of 2023.

The move comes at a time when Natura has been in a cost-cutting drive, divesting various assets and de-listing itself from the New York Stock Exchange.

The string “natura” is a dictionary word in some languages, meaning “nature” in Italian for example, so it could feasibly be applied for in future new gTLD program rounds.

Governments back down on new gTLD next round delay

ICANN’s Governmental Advisory Committee has decided not to force the Org to pay for a independent cost/benefit analysis of the new gTLD program, removing the potential for timeline friction ahead of the planned 2026 next-round launch.

In its latest communique, published following the ICANN 79 meeting in Puerto Rico last week, the GAC has essentially told ICANN that it broke its bylaws by not following eight-year-old GAC advice, but meh, whatever, just don’t do it again.

As I reported last week, governments had grown concerned that ICANN had not delivered the “objective and independent analysis of costs and benefits” of the new gTLD program that the GAC had asked for in 2016. Such an analysis was supposed to be a prerequisite for the next round going ahead.

What ICANN had delivered instead was a relatively hastily prepared summary of the next round’s policy recommendations, Org’s analysis of these recommendations, and the community-led review of competition, consumer protection and trust issues, the CCT review.

The Puerto Rico communique says that this response “cannot be considered to constitute a cost-benefit analysis, nor to be objective and independent” but that the GAC does not wish to throw up a road-block to the next round going ahead on schedule. It reads:

The GAC recognizes that the Community (with involvement of the GAC) is taking forward the next round of new gTLDs and has set a corresponding timeline. The GAC, therefore, believes that conducting further analysis at this stage would not serve the intended purpose.

The GAC encourages the Board to ensure that GAC advice, which the Board has accepted, is effectively implemented and its implementation is communicated to the GAC.

GAC chair Nicolas Caballero of Paraguay summarized it as the committee telling the ICANN board “we’re not aiming by no means at stopping the next round or anything like that, but that we want to be taken seriously”.

The original draft of the communique, drafted by Denmark, the US, the UK and Switzerland delegations, also contained text noting that the analysis ICANN provided was written by staff or community stakeholders, who were neither independent nor objective, but this was removed during a drafting session last week after objections from Iran, whose rep said it sounded too critical of the multistakeholder process.

It seems ICANN, and others who stand to make a lot of money from the new gTLD program, have dodged a bullet here, with the GAC essentially backing away and backing down from its potentially delay-causing previous demands.

Private auctions could be banned in new gTLD next round

ICANN is “sympathetic” to the view that private auctions between competing new gTLD applicants are a Bad Thing that should be discouraged in the next application round.

Director Alan Barrett told the GNSO Council at ICANN 79 today that the board of directors, following Governmental Advisory Committee advice, has hired a consultant and is looking at ways to design an ICANN-run “last resort” auction in a way that “disincentivizes” the use of private auctions.

In the 2012 round, many contention sets were settled with private auctions, with tens of millions of dollars changing hands. Losing auctions was a real money-spinner for several portfolio applicants. When ICANN conducted the auctions, ICANN got the money.

Last June, the GAC advised ICANN to “ban or strongly disincentivize private monetary means of resolution of contention sets, including private auctions”, and Barrett said ICANN is considering how to fulfill that advice.

“We don’t know the answers yet, but what I can say is that we are looking at it and we are sympathetic to the idea of disincentivizing private auctions,” Barrett said.

He added that ICANN is looking at how it might discourage competing applicants from settling their contention sets using joint ventures “in a bad faith kind of way”.

“There’s the risk that applicants might use a joint venture in a bad faith kind of way, as a way of transferring money from one applicant to another, in much the same way as private actions could have done,” he said. “We want to figure out a way of allowing good-faith joint ventures.”

My sense is that whatever ICANN comes up with will have to have a substantial carrot component, or an equally big stick. The domain industry can be incredibly devious at times, and if there’s a way to make a big chunk of change filing unsuccessful new gTLD applications, somebody will figure it out.

ICANN meeting venue “insensitive and hurtful”

ICANN has taken some criticism over the decision to host its flagship Universal Acceptance 2024 meeting in Serbia.

An individual named Dmitry Noskov has written to ICANN to complain that the Universal Acceptance Steering Group will hold its “Keystone” meeting — the main event of the UA Day series of meetings around the world — later this month in Belgrade. He wrote (pdf):

Given the current global tension in the region due to ongoing conflict and the close cultural and historical ties between Serbia and Russia, which have led to diplomatic and trade actions by several countries against Russia, I am concerned about the implications of holding the event in Belgrade. It is crucial to consider the potential perception of insensitivity or hurtfulness to global sentiments, especially to those affected by the conflict.

Unlike most of Europe, Serbia has maintained a somewhat neutral stance on Russia’s invasion of Ukraine and there is reportedly large popular support for Russia, and a large Russian population, in the country. Russia and Serbia are old allies.

ICANN has taken a generally pro-Ukraine stance. It donated $1 million to relief efforts in 2022 after the war started. It also lobbied against the Russian nomination for ITU secretary-general. Russia’s ccTLD registry cut off its ICANN funding last year.

CEO Sally Costerton replied (pdf) to Noskov to say that the choice of Belgrade as the keystone UA Day event for 2024 was made by the UASG.

The UA Day event in Belgrade is being hosted by local ccTLD registry RNIDS, which runs .rs and the Cyrillic equivalent .срб.

GAC spinning up new gTLD curveball at ICANN 79?

ICANN’s Governmental Advisory Committee had a habit of throwing delaying curveballs before and during the 2012 new gTLD application round, and it might be planning a repeat performance before the upcoming 2026 round.

The GAC today assembled at ICANN 79 in Puerto Rico to discuss the latest developments in planning for the next round, and a major concern emerged around ICANN’s response to its request for a cost/benefit analysis.

The GAC had first asked for such an analysis at the Helsinki meeting in 2016, but after the ICANN 78 Hamburg meeting last October noted that it had still not received one.

At ICANN 56, the GAC had asked that an “objective and independent analysis of costs and benefits… drawing on experience with and outcomes from the recent round” should be a prerequisite for a next round going ahead.

After its Hamburg reminder, ICANN threw together a summary (pdf) of three existing documents that it presumably hoped would check that box and shush the GAC or give the GAC an excuse to shush itself.

The documents were the report of the Competition and Consumer Trust Review Team, the Subsequent Procedures PDP Working Group Final Report (which created the policy recommendations for the next round) and ICANN’s Operational Design Assessment of SubPro (which talked about how ICANN would implement those recommendations).

It was a pretty flimsy response, and GACers weren’t buying it, pointing out today that the three documents in question were all produced by the ICANN community or ICANN staff and couldn’t really be said to be “objective and independent”. Nor could they be said to amount to an “analysis of costs and benefits”.

“I had the pleasure to read through the report, and see whether it’s a cost/benefit analysis, and whether it’s an objective and independent analysis,” the GAC rep from Denmark said. “And I must say that my answer or reply to those questions would be no, and a big no.”

Other GAC members in Europe and North America seemed to agree that either the cost/benefit analysis they had asked for still hadn’t been delivered and that perhaps it wouldn’t be great for the GAC’s credibility if it didn’t press the issue.

The UK rep, who was chairing the session, observed that GAC members’ higher-uppers in government, such as ministers, sometimes ask what economic impact gTLD expansion might have and that an answer might be useful.

The contrarian opinion came, as it so often does, from Iran, whose rep suggested that a cost/benefit analysis might be pointless and maybe the GAC should just put the issue to bed.

What happens if the analysis shows the costs outweigh the benefits, he asked, should ICANN just scrap the next application round and 13 years of policy work?

It seems a request for ICANN to pay for an independent cost/benefit analysis of the new gTLD program could make its way into the GAC’s formal advice-delivering communique later in the week, potentially throwing friction into the roll-out of the next round.

In my opinion, there is no real answer to the question of whether the new gTLD program is a net benefit.

Beyond the billions of dollars of economic activity that will be created, whether it’s beneficial is purely a subjective opinion, and paying a bunch of overpriced consultants to wave their hands in the air for a year before spitting out the 300-page PDF equivalent of a Gallic Shrug probably won’t provide any meaningful clarity.

GoDaddy wants to cut the bullshit from .xxx

GoDaddy Registry wants to drop a big chunk of nonsense from the contract governing its .xxx domain, some 20 years after it was applied for as a “Sponsored” gTLD.

It’s asked ICANN if it can kill off its sponsor, the International Foundation For Online Responsibility, and sign up to something closer to the Base New gTLD Registry Agreement, the contract that all new gTLDs from the 2012 application round are on.

GoDaddy’s .porn, .adult and .sex gTLDs have been on a non-sponsored contract for a decade to no complaint, though they haven’t sold nearly as many domains as .xxx.

IFFOR’s board, the IFFOR Ombudsman, and .xxx registrants polled by GoDaddy all agree that the “sponsored” classification is no longer needed, GoDaddy VP Nicolai Bezsonoff told ICANN VP Russ Weinstein (pdf).

The registry wants ICANN to put out a non-sponsored version of the .xxx contract out for public comment.

It looks like a fait accompli. GoDaddy and ICANN have been negotiating the renewal of the .xxx contract, which was due to expire in 2021, for at least three years. It’s difficult to imagine a scenario in which the two parties have not already agreed terms.

Nobody who doesn’t get paid by IFFOR will miss IFFOR. For 20 years it’s been the domain industry’s least-convincing merkin, existing entirely to give original .xxx manager ICM Registry (and then MMX, then GoDaddy, following industry consolidation) the illusion that it had community support for selling porn domains.

ICM created IFFOR when it applied for .xxx in 2003 during ICANN’s well-intentioned but poorly considered and ill-fated “sponsored TLD” round, where applicants had to show they had support from a community related to their chosen string.

Because the porn industry, particularly in the US, hated the idea of a .xxx domain — erroneously believing governments would force all porn sites into it and then shut it down — ICM was forced to pull a community out of its backside. And thence IFFOR was born.

IFFOR was designed to be a mini-ICANN. It was to have a board, policy-making committees, an ombudsman, oversight, transparency, etc. Its foundational documents (pdf), list 14 obligations, most of which were never fulfilled to any meaningful extent.

Judging by its web site, it’s never made a single policy since it was formed in 2011. But we can’t be sure, because the web site has been poorly maintained (a breach of the first of its original 14 commitments), with no board minutes published for the last six years (despite employing a full-time staffer on a $60,000 salary who, tax forms say, works 40 hours a week).

It did come up with something called a “Policy Engine” for new gTLD registries around the time of the 2012 round, but discontinued it a year later when nobody wanted it.

IFFOR, a not-for-profit registered in California, was supposed to receive $10 from ICM for every registered, resolving .xxx domain and use a portion of that to issue grants to worthy causes related to its mission — child protection, free speech, and so on.

While IFFOR did announce two $5,000 awards in 2013, its tax filings have not reported a single penny spent on grants since 2011. Nada.

IFFOR’s charter seems to have been renegotiated behind the scenes at some point, when .xxx turned out to not be quite the internet cash machine its founders had hoped for. From 2011 to 2014 it was rolling in cash — getting over $1 million from ICM in 2013 — but from 2016 it’s been receiving a flat $100,000 a year, most of which is spent on director salaries.

At around the same time, instead of issuing cash grants, IFFOR started producing an “educational program” for UK schools called AtFirstSite. Aimed at 11 to 14-year-olds, it covers topics such as sexting, dick pics and online pornography, with a clear emphasis on keeping young teens safe online.

AtFirstSite carried a price tag of £150, but the revenue lines on tax forms since 2016 suggest none were ever sold. Instead, the program was given for free to schools that asked for it and this was called a “grant”, to satisfy IFFOR’s grant-giving mandate.

The program — which consists of a PDF and a PowerPoint presentation — is now free, and can be downloaded here , if you want to bemuse an 11-year-old with a reference to Rihanna and Chris Brown’s destructive relationship, which ended before they were born.

Closing IFFOR is not going to cause anyone to lose any sleep, but it will nevertheless be interesting to see whether anyone objects to .xxx losing its “sponsored TLD” status when ICANN opens the contract to public comment.

Olive retires from ICANN

David Olive, senior VP of policy development and support, will retire from ICANN at the end of May, the Org announced today.

Olive joined ICANN in February 2010 after 20 years with Fujitsu and has led his department ever since.

He also was the first managing director of ICANN’s office in Istanbul, though he’s been running the Washington DC office since 2021, ICANN said.

No immediate replacement was announced, but there’s a few months to go before he actually leaves the job.

Whois policy published without life-saving disclosure rule

ICANN has updated its Registration Data Policy, the rules that govern what data registries and registrars need to collect from registrants and when to publish or supply it through Whois lookups or disclosure requests.

When it becomes enforceable in August next year, the new RDP will make full-fat ICANN Whois policy compliant with EU privacy law for the first time since the General Data Protection Regulation came into effect in May 2018.

But the new policy, which replaces a functionally very similar temporary policy, is notable not only for the extraordinary amount of time it took to produce, but also for not containing a disputed requirement for registrars and registries to quickly turn over private Whois data when human life is at risk.

The policy dictates what contact information registrars must collect from their customers, what they must share with their registries, escrow agents and others, and what they must redact in the public Whois (or Registration Data Directory Services, as it will become known when Whois is retired next January).

It also says that registries and registrars must acknowledge private data disclosure requests no more than two business days after receipt and respond to the requests in full less than 30 calendar days after that, barring delays caused by “exceptional circumstances”.

But, due purely to ICANN community politicking, the policy for now omits previously considered language on “urgent” disclosure requests for use in “circumstances that pose an imminent threat to life, of serious bodily injury, to critical infrastructure, or of child exploitation”.

I’d like to think such circumstances are incredibly rare, but if there’s a situation where a Whois disclosure could help prevent a bomb going off at a major internet exchange, a trans rights activist being hounded into suicide, or a little kid getting raped on a livestream, the new ICANN policy does not account for that.

The version of the policy published in July last year (pdf) did include an urgent requests provision, requiring contracted parties to either turn over the data or tell the requester to get lost within 24 hours of receipt.

But it also contained a bunch of exceptions that could allow registrars to extend that deadline by up to three business days. When weekends and public holidays are taken into account, this could mean as much as a full calendar week to process an “urgent”, potentially life-saving request.

For that reason, the Governmental Advisory Committee wrote to ICANN (pdf) last August to ask it to revisit the policy language, chuck out the reference to “business” days, and stick to a 24-hour response window

The original Expedited Policy Development Process Working Group that came up with the policy recommendations had not specified how long registrars and registries should have to respond to urgent disclosure requests, punting that decision to the Implementation Review Team that drafted the final language.

An August 2022 draft (pdf) put out for public comment made the response window two business days, with a possible one-day extension, but this was reduced to 24 hours last year in what registrars describe as a “significant compromise” given the operational reality of responding to disclosure requests.

In August last year, the Registrars Stakeholder Group told ICANN (pdf) that its members “are committed to responding to Urgent requests in the most swift and expeditious manner possible” but said it objected to the GAC’s last-minute demands for the urgent disclosures policy to be rewritten.

From the registrars’ perspective, handling disclosure requests for personal data is not a simple ask. It’s a legal decision, balancing the privacy rights of the registrant with the rights of others to access that information.

Get it wrong, and you’re open to litigation and fines substantial enough to be expressed as a percentage of your revenue. And, money aside, who wants to be the guy who, for example, accidentally helps the Iranian morality police murder a bunch of schoolgirls for wearing the wrong type of hat?

But the argument between the registrars and the governments comes down to issues of ICANN process. Both the GAC and the RrSG claimed the urgent disclosures bunfight highlights deficiencies in ICANN multistakeholderism, but for different reasons.

ICANN’s response to this disagreement was to remove the urgent requests clauses from the policy altogether, in the hope that further talks can find a solution. Chair Tripti Sinha wrote to the RrSG and GAC a couple weeks ago to tell them:

the Board concluded that it is necessary to revisit Policy Recommendation 18 concerning urgent requests in the context of situations that pose an imminent threat to life, serious bodily harm, infrastructure, or child exploitation, and the manner in which such emergencies are currently handled. For this, we believe that consultation with the GNSO Council is required.

ICANN has essentially kicked the can, which was what the GAC had asked for. The RrSG wanted the July 2023 language (one-plus-three days) or August 2022 language (two-plus-one days) published in the final policy.

It’s stuff like this that makes one scratch one’s head, stroke one’s chin, and wonder whether ICANN really is fit for purpose.

There were 2,312 days between the day the European Commission first proposed the GDPR to the day it became effective in all EU member states.

But 2,590 days will have passed between the day the GNSO Council initiated the EPDP and the day the new Registration Data Policy will become effective on all contracted parties, next August.

The lumbering, then-28-state European Union was faster at passing policy than ICANN, even when ICANN was using an “expedited” process.

And what ICANN eventually came up with couldn’t even agree on ways to help tackle murder, economic catastrophes, and the rape of kids.

UK gov takes its lead from ICANN on DNS abuse

The UK government has set out how it intends to regulate UK-related top-level domain registries, and it’s taken its lead mostly from existing ICANN policies.

The Department for Science, Innovation and Technology said last year that it was to activate the parts of the Digital Economy Act of 2010 that allow it to seize control of TLDs such as .uk, .london, .scot, .wales and .cymru, should those registries fail to tackle abuse in future.

It ran a public consultation that attracted a few dozen responses, but has seemingly decided to stick to its original definitions of abuse and cybersquatting, which were cooked up with .uk registry Nominet and others and closely align to industry norms.

DSIT plans to define abuse in the same five categories as ICANN does — phishing, pharming, botnets, malware and vector spam (spam that is used to serve up the first four types of attack) — in its response to the consultation, published yesterday (pdf).

But it’s stronger on child sexual abuse material than ICANN. While registries and registrars have developed a “Framework to Address Abuse” that says they “should” take down domains publishing CSAM, ICANN itself has no contractual prohibitions on such content.

DSIT said it will require UK-related registries to have “adequate policies and procedures” to combat CSAM in their zones. The definition of CSAM follows existing UK law in being broader than elsewhere in the world, including artworks such as cartoons and manga where no real children are harmed.

DSIT said it will define cybersquatting as “the pre-emptive, bad faith registration of trade marks as domain names by third parties who do not possess rights in such names”. The definition omits the “and is being used in bad faith” terminology used in ICANN’s UDRP. DSIT’s definition includes typosquatting.

In response to the new document, Nominet tweeted:

The response highlights that Government recognises the work registries already do to support law enforcement agencies prevent the registration of domains to carry out illegal activity and "expect the existing voluntary arrangements to be used as the first port of call".

— Nominet (@Nominet) February 23, 2024

DSIT said it will draft its regulations “over the coming months”.