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.sucks “gag order” dropped, approved

Kevin Murphy, April 19, 2016, Domain Registries

Vox Populi, the .sucks registry, has had controversial changes to its registrar contract approved after it softened language some had compared to a “gag order”.

ICANN approved changes to the .suck Registry-Registrar Agreement last week, after receiving no further complaints from registrar stakeholders.

Registrars had been upset by a proposed change that they said would prevent brand-protection registrars from publicly criticizing .sucks:

The purpose of this Agreement is to permit and promote the registration of domain names in the Vox Populi TLDs and to allow Registrar to offer the registration of the Vox Populi TLDs in partnership with Vox Populi. Neither party shall take action to frustrate or impair the purpose of this Agreement.

But Vox has now “clarified” the language to remove the requirement that registrars “promote” .sucks names. The new RRA will say “offer” instead.

Registrars had also complained that the new RRA would have allowed Vox to unilaterally impose new contractual terms with only 15 days notice.

Vox has amended that proposal too, to clarify that changes would come into effect 15 days after ICANN has given its approval.

Vox CEO John Berard told ICANN in a March 18 letter:

VoxPop’s intent was never to alter any material aspect of the Registry Registrar Agreement. Our intent was to clarify legal obligations that already exist in the Agreement, and conform the timeframes for any future amendments with those specified in our ICANN registry contract.

Burr to replace Tonkin on ICANN board

Kevin Murphy, April 19, 2016, Domain Policy

ICANN lifer Becky Burr is to replace Bruce Tonkin on the ICANN board of directors when his term expires in November.

She’ll take the seat reserved for the Contracted Parties House of the Generic Names Supporting Organization, following a vote by registries and registrars a few weeks ago.

Tonkin, CTO of Aussie registrar Melbourne IT, has held the seat for the last nine years. He’s limited to three consecutive three-year terms under ICANN bylaws.

Burr, a lawyer by trade, is currently chief privacy officer at TLD registry Neustar, a position she has held since 2012.

Before that, she was a partner at the law firm Wilmer Hale.

But way back in 1998, in a senior role at the US National Telecommunications and Information Administration, she was one of the key people responsible for ICANN’s creation under the Clinton administration.

Facebook bought a registrar

Kevin Murphy, April 14, 2016, Domain Services

Facebook has acquired a domain name registrar, according to its point person in ICANN.

Facebook domain manager Susan Kawaguchi said on tonight’s GNSO Council teleconference, as a matter of disclosure, that Facebook recently acquired a registrar.

Multiple sources say the registrar is RegistrarSEC LLC.

DI records show that RegistrarSEC took over the ICANN registrar accreditation of Focus IP Inc, doing business as AppDetex, on March 26.

RegistrarSEC is led by one of the long-gone founders of brand protection registrar MarkMonitor, Faisal Shah, and Chris Bura, founder of Alldomains.com.

Facebook is one of MarkMonitor’s most prominent clients.

RegistrarSEC is not a conventional registrar. It had just 11 registrations under its IANA ID at the end of 2015.

But its parent was founded in 2013 as primarily a provider of brand protection services focused on the mobile app space.

My guess is that Facebook is interested in RegistrarSEC’s parent’s intellectual property, rather than its registrar.

Did the DotConnectAfrica judge make a big dumb mistake?

Kevin Murphy, April 14, 2016, Domain Registries

The court ruling that granted DotConnectAfrica a preliminary injunction preventing ICANN delegating .africa seems to be based to a large extent on a huge error by the judge.

In explaining why he was allowing DCA v ICANN to proceed, despite DCA’s signing away its right to sue when it filed its new gTLD application, California district judge Gary Klausner seems to have confused DCA with rival .africa applicant ZACR.

In his Tuesday ruling, Klausner said that evidence supports the claim that ICANN was determined to flunk DCA’s application no matter what.

The key evidence, according to the judge, is that the Initial Evaluation of DCA’s application found that it did have enough support from African governments to pass its Geographic Names Review, but that ICANN subsequently reversed that view in Extended Evaluation.

He wrote:

DCA claims that “the process ICANN put Plaintiff through was a sham with a predetermined ending – ICANN’s denial of Plaintiff’s application so that ICANN could steer the gTLD to ZACR.”

In support, DCA offers the following evidence. ICANN’s initial evaluation report in July 2013 stated that DCA’s endorsement letters “met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) After the IRP Decision, ICANN performed a second evaluation on the same information originally submitted by DCA. In the second evaluation, however, ICANN found that the endorsement letters did not meet the same criteria applied in the first evaluation

He later writes:

Despite ICANN’s contention, the evidence presents serious questions pointing in favor of DCA’s argument. First, a March 2013 email from ICC to ICANN stated that ICANN needs to clarify AUC’s endorsements since AUC properly endorsed both DCA and ZACR. (Bekele Decl. ¶ 30, Ex. 19, ECF No. 17.) Subsequently, ICANN’s July 2013 initial evaluation report found that the endorsement letters have “met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) Because ICANN found DCA’s application passed the geographic names evaluation in the July 2013 initial evaluation report, the Court finds serious questions in DCA’s favor as to whether DCA’s application should have proceeded to the delegation stage following the IRP Decision.

The document “Bekele Decl. ¶ 40, Ex. 27” referred to is exhibit 27 of DCA CEO Sophia Bekele’s March 1 declaration, filed in support of its preliminary injunction motion.

The problem is that that exhibit is not the Initial Evaluation report for DCA’s .africa bid, it’s the IE report for rival ZACR (aka UniForum).

Read it here (pdf).

DCA’s own application never received a scored IE report. At least, one was never published.

It only got this (pdf), which states simply “Overall Initial Evaluation Summary: Incomplete”. That document is dated July 3, 2013, almost two weeks before the ZACR report.

Bekele’s declaration even states that exhibit 27 is the IE report for the ZACR application.

It’s not clear to this non-lawyer how important this pretty basic error is to Klausner’s thinking, but as a layman it looks pretty crucial.

It certainly seems like something that needs to be addressed, given that the apparent misunderstanding plays into both the decision to allow the lawsuit to proceed and the decision that DCA’s complaint may have merit.

Several other exhibits cited in the ruling — including emails from the InterConnect Communications evaluators who carried out the Geographic Names Review — have been redacted by the court.

It’s possible there are smoking guns contained within these censored documents that were more influential on the ruling.

It’s also notable that ICANN is continuing to redact the court documents it publishes on its web site, beyond those filed under seal and censored by the court.

It’s open season on ICANN as judge rules new gTLD applicants CAN sue

Kevin Murphy, April 13, 2016, Domain Policy

DotConnectAfrica has won a California court ruling that will allow it to continue suing ICANN over its twice-rejected .africa gTLD application.

District judge Gary Klausner ruled yesterday that the litigation waiver all applicants had to sign when they applied may be unenforceable.

“The Court finds substantial questions as to the Release, weighing toward its unenforceability,” he wrote (pdf).

California law says that such waivers cannot stop people being sued for fraud, and fraud is what DCA is alleging, he explained.

DCA alleges that ICANN intended to deny DCA’s application after the IRP proceeding under any pretext and without a legitimate reason.

The evidence suggests that ICANN intended to deny DCA’s application based on pretext. Defendants have not introduced any controverting facts. As such, the Court finds serious questions regarding the enforceability of the Release due to California Civil Code § 1668.

The judge granted DCA’s request for a preliminary injunction that will prevent it from delegating .africa to successful applicant ZACR.

ZACR has the backing of the African Union Commission and, per ICANN rules, over 60% of the governments in Africa.

DCA applied for .africa with no government support, but with an AUC letter of support than had already been retracted. The company claims that the AUC was not allowed to withdraw its endorsement under ICANN rules.

But it doesn’t seem to matter what the governments of Africa want. Klausner wrote:

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

Sorry Africa, no gTLD for you yet!

The case continues…