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Thick .com Whois policy delayed

Kevin Murphy, February 16, 2012, Domain Registries

ICANN’s GNSO Council has deferred a decision on whether Verisign should have to thicken up the Whois database for .com and its other gTLDs.

A motion to begin an official Policy Development Process on thick Whois was kicked down the road by councilors this afternoon at the request of the Non-Commercial Users Constituency.

It will now be discussed at the Council’s face-to-face meeting in Costa Rica in March. But there were also calls from registries to delay a decision for up to a year, calling the PDP a “distraction”.

Verisign’s .com registry contract and the standard Registrar Accreditation Agreement are currently being renegotiated by ICANN, both of which could address Whois in some way.

Today, all contracted gTLD registries have to operate a thick Whois, except Verisign with its .com, .net, .jobs, etc, where the registrars manage the bulk of the Whois data.

Fight brewing over thick .com Whois

Kevin Murphy, January 3, 2012, Domain Policy

This year is likely to see a new fight over whether Verisign should be forced to create a “thick” Whois database for .com and its other generic top-level domains.

While Verisign has taken a deliberately ambivalent position on whether ICANN policy talks should kick off, the community is otherwise split on whether a mandatory thick Whois is a good idea.

Currently, only .com, .net, .name and .jobs – which are all managed on Verisign’s registry back-end – use a thin Whois model, in which domain name registrars store their customers’ data.

Other gTLDs all store registrant data centrally. Some “sponsored” gTLD registries have an even closer relationship with Whois data — ICM Registry for example verifies .xxx registrants’ identities.

But in a Preliminary Issue Report published in November, ICANN asked whether it should kick off a formal Policy Development Process that could make thick Whois a requirement in all gTLDs.

In comments filed with ICANN last week, Verisign said:

As the only existing registry services provider impacted by any future PDP on Thick Whois, Verisign will neither advocate for nor against the initiation of a PDP.

Verisign believes the current Whois model for .com, .net, .name and .jobs is effective and that the proper repository of registrant data is with registrars — the entities with direct connection to their customers. However, if the community, including our customers, determines through a PDP that “going thick” is now the best approach, we will respect and implement the policy decision.

Thick Whois services make it easier to find out who owns domain names. Currently, a Whois look-up for a .com domain can require multiple queries at different web sites.

While Whois aggregation services such as DomainTools can simplify searches today, they still face the risk of being blocked by dominant registrars.

The thin Whois model can also make domain transfers trickier, as we witnessed just last week when NameCheap ran into problems processing inbound transfers from Go Daddy.

ICANN’s Intellectual Property Constituency supports the transition to a thick Whois. It said in its comments:

Simplifying access to this information through thick Whois will help prevent abuses of intellectual property, and will protect the public in many ways, including by reducing the level of consumer confusion and consumer fraud in the Internet marketplace. Thick Whois enables quicker response and resolution when domain names are used for illegal, fraudulent or malicious purposes.

However, Verisign noted that a thicker Whois does not mean a more accurate Whois database – registrars will still be responsible for collecting and filing customer contact records.

There are also concerns that a thick Whois could have implications for registrant privacy. Wendy Seltzer of the Non-Commercial Users Constituency told ICANN:

Moving all data to the registry could facilitate invasion of privacy and decrease the jurisdictional control registrants have through their choice of registrar. Individual registrants in particular may be concerned that the aggregation of data in a thick WHOIS makes it more attractive to data miners and harder to confirm compliance with their local privacy laws.

This concern was echoed to an extent by Verisign, which noted that transitioning to a thick Whois would mean the transfer of large amounts of data between legal jurisdictions.

European registrars, for example, could face a problem under EU data protection laws if they transfer their customer data in bulk to US-based Verisign.

Verisign also noted that a transition to a thick Whois would dilute the longstanding notion that registrars “own” their customer relationships. It said in its comments:

As recently as the June 2011 ICANN meeting in Singapore, Verisign heard from several registrars that they are still not comfortable with Verisign holding their customers’ data. Other registrars have noted no concern with such a transition

ICANN staff will now incorporate these and other comments into its final Issue Report, which will then be sent to the GNSO Council to decide whether a PDP is required.

If the Council votes in favor of a PDP, it would be many months, if at all, before a policy binding on Verisign was created.

ICANN demands the right to terminate .jobs

ICANN has asked the International Chamber of Commerce to rule that it has the right to terminate Employ Media’s .jobs contract.

It’s filed its response to Employ Media’s demand for arbitration over the disputed Universe.jobs service, which saw the registry vastly expand the .jobs space.

Employ Media “transcended the very intent behind creation of the TLD” with Universe.jobs, which allocated tens of thousands of .jobs domains to the DirectEmployers Association, ICANN said.

The organization wants the ICC to rule that it “may, but is not required to, terminate the Registry Agreement with Employ Media”, as it has already threatened.

Employ Media took ICANN to arbitration in May, after ICANN notified it that it was in breach of its registry agreement and they were not able to settle their differences in private talks.

The registry wants a declaration that it is not in breach.

But according to ICANN, Employ Media is still and has always been restricted to selling domains just to human resources professionals to promote jobs “within their own organizations”.

That’s despite ICANN’s approval of a contract amendment last year that allowed the registry to sell non-companyname .jobs domains.

This liberalization, ICANN says, did not allow the company to launch Universe.jobs, which monetizes at least 40,000 geographical and vocational .jobs through a massive third-party jobs board.

ICANN is now trying to frame the arbitration proceeding around a single question – was its breach notice “appropriate” or not?

The whole debacle is based around two interpretations of the .jobs Charter, which spells out who can register .jobs domains. This is what it says:

The following persons may request registration of a second-level domain within the .JOBS TLD:

– members of SHRM [the Society For Human Resources Management]; or

– persons engaged in human resource management practices that meet any of the following criteria: (i) possess salaried-level human resource management experience; (ii) are certified by the Human Resource Certification Institute; (iii) are supportive of the SHRM Code of Ethical and Professional Standards in Human Resource Management, as amended from time to time, a copy of which is attached hereto.

Employ Media’s interpretation is fairly literal and liberal – any signed-up SHRM member can register a .jobs domain and somebody at DirectEmployers is a member and therefore eligible.

Becoming a SHRM member is pretty straightforward and cheap. It’s not much of a barrier to entry.

ICANN argues that this interpretation is bogus:

Employ Media has espoused policies that allow a .JOBS domain name (or thousands of them) to be used for virtually any purpose as long as a human resource manager is propped up to “request” the domain. In doing so, Employ Media has failed to enforce meaningful restrictions on .JOBS registrations, as required by the Registry Agreement.

It further argues that Employ Media should have allocated premium .jobs domains through an “open, fair and transparent” process, rather than the “self-serving… backroom deal” with DirectEmployers.

Evidence now filed by ICANN shows that the two organizations have been arguing about this since at least November 2009, when Employ Media launched a Universe.jobs “beta”.

ICANN also now says that it has no problem with Universe.jobs, provided that Employ Media and SHRM amend their Charter policies to make the service retroactively compliant.

The more this dispute progresses and the more convoluted and expensive it becomes, the more it leaves me scratching my head.

You can download the latest arbitration documents from ICANN.

Anti-.jobs coalition keeps up pressure on ICANN

The .JOBS Charter Compliance Coalition, which wants ICANN to rein in .jobs registry Employ Media, has sent a couple of stern letters to ICANN recently.

Neither are especially exciting, but as ICANN has yet to publish them on its correspondence page I thought I’d make them available here.

The first (pdf), sent July 5, demands to know why ICANN has not yet provided an update to its forthcoming arbitration with Employ Media, which was due a few weeks ago.

ICANN and the registry are set to face off at the International Chamber of Commerce over the disputed Universe.jobs service, which ICANN believes was launched in breach of the .jobs Charter.

My understanding is that the arbitration is going ahead, but that ICANN has been granted an extension to the deadline to file its reply.

The second letter (pdf) notes that .jobs’ IANA listing was recently updated with language more friendly to Employ Media’s position that not only human resources managers qualify for .jobs domains.

It asks why this change was made, invoking the Documentary Information Disclosure Policy.

The Coalition is made up of independent jobs site operators unhappy that Employ Media appears to be using its position as the .jobs registry to compete with them.

ICANN tries to dodge .jobs legal fees

“Please don’t sue us!”

That’s the message some are taking away from the latest round of published correspondence between lawyers representing ICANN and .jobs registry Employ Media.

Employ Media last week said it will take ICANN to the International Chamber of Commerce, after they failed to resolve their dispute over the company’s controversial Universe.jobs venture.

Now ICANN has asked the registry’s executives to return to the negotiating table, apparently to reduce the risk of having to spend millions of dollars on lawyering.

In a letter (pdf) to Employ Media’s attorneys, ICANN outside counsel Eric Enson of Jones Day said that ICANN wishes to avoid “costly legal fees associated with arbitration or litigation”:

I again request a meeting among the business persons involved in this matter to discuss potential resolutions before spending more of ICANN’s funding on unnecessary litigation.

The latest round of published correspondence, like the last one, and the one before that, seems to contain a fair bit of legal posturing, with both sides accusing the other of conducting negotiations in “bad faith” for various reasons.

Filing the arbitration notice with the ICC might turn out to be a smart move by Employ Media, knowing how risk-averse and cash-conscious ICANN is.

ICANN is still smarting from the last time it headed to arbitration, for its Independent Review Panel over ICM Registry’s .xxx top-level domain.

ICANN lost that case in February 2010, and had to cover the panel’s almost $500,000 in costs, as well as its own legal fees. The overall price tag is believed to have comfortably made it into seven figures.

But that may well turn out to be small beer compared to the price of losing arbitration against the .jobs registry.

Unlike the IRP, in which both parties pay their own lawyers no matter who wins, Employ Media’s contract states that the losing party in arbitration must pay the legal fees of the winner.

To go up against .jobs at the ICC and lose could hit ICANN’s coffers harder than the .xxx dispute, in other words. That’s not to say it would lose, but with matters as complex as this there is that risk.

It’s worth noting that Employ Media’s lead attorney has form when it comes to reaching into ICANN’s pockets – Crowell & Moring’s Arif Ali also represented ICM Registry in the .xxx IRP case.