Iran rep reported to ICANN Ombudsman, again

Iran’s Governmental Advisory Committee representative has found himself reported to ICANN’s Ombudsman for alleged bad behavior for the second time in just a few months.
Outspoken GACer Kavouss Arasteh was referred to Ombudsman Herb Waye by consultant John Laprise, according to posts on mailing lists and social media.
Both men serve on an ICANN volunteer working group that is looking at matters related to the jurisdiction in which ICANN operates.
The group’s discussions have recently become extremely fractious, largely due to a series of combative emails and teleconference interventions from Arasteh.
Laprise eventually said on the list that Arasteh was being a “bad actor”, adding that “his tone, manner, and insinuations are detrimental and indeed hostile to the process.”
He later said on Facebook that he had reported the matter to the Ombudsman.
The spat centered on an August 1 teleconference in which members of the so-called WS2-Jurisdiction working group heard a briefing from ICANN lawyers on the Office of Foreign Assets Control, which oversees international trade sanctions in the US.
As well as enforcing sanctions against countries including Iran, OFAC maintains a list of people and organizations, many of them Iranian, that American companies are forbidden from doing business with.
It impacts ICANN because the organization in its normal course of business is often obliged to deal with ccTLD registries in sanctioned nations, for which it needs to apply for OFAC licenses.
Arasteh initially complained multiple times that the meeting had been rescheduled for August 1 — apparently with his initial consent — which is a national holiday in his home nation of Switzerland.
He also fought for ICANN lawyers to be asked to provide, at very short notice, a written briefing paper on OFAC, answering the group’s questions, prior to the teleconference taking place.
On neither issue did he receive support from fellow volunteers, something for which he seemed to blame group chair Greg Shatan, an intellectual property lawyer.
Arasteh’s criticisms of an increasingly weary Shatan sometimes seemed to border on conspiracy theory. All other working group members who publicly expressed an opinion said Shatan was doing a fine job herding this particular set of cats.
During the teleconference itself, Arasteh ate up the first five or six minutes of allotted time with a rambling, barely comprehensible complaint about the format of the meeting, compelling Shatan to eventually ask for his mic to be cut off.
In emails over the next 48 hours, the GAC rep continued his tirade against what he perceives as Shatan’s bias against him and called again for ICANN legal to provide a formal set of written answers to questions.
Some fellow group members believe Arasteh’s defensive and confrontational approach is merely a clash of cultures between his usual style of government diplomacy and the staid, tediously polite style of ICANN working group interactions.
Others are less charitable.
Still, the question of whether the latest WG friction has infringed any of ICANN’s “Expected Standards of Behavior” now appears to be in the hands of the Ombudsman.
Arasteh was also reported to Waye back in May, when he accused the chairs of a different ICANN working group of trying to exclude governmental voices from new gTLD policy-making by scheduling teleconferences at times he found inconvenient.
Waye subsequently reported that the complaint had been resolved between the parties.
In June, he said he was proactively monitoring a third working group mailing list after receiving allegations of harassment. That was unrelated to Iran.

Ombudsman steps in after harassment claims in Whois group

ICANN Ombudsman Herb Waye has started monitoring an ICANN mailing list after multiple complaints of disrespectful behavior.
Waye this week told participants in the Registration Data Services working group that he is to trawl through their list archives and proactively monitor the group following “multiple complaints regarding behavior that contravenes the ICANN Expected Standards of Behavior and possibly the Community Anti-Harassment Policy”.
The RDS working group is exploring the possibility of replacing the current Whois system, in which all data is completely open, with something “gated”, restricting access to authenticated individuals based on their role.
Law enforcement agencies, for example, may be able to get a greater level of access to personal contact information than schmucks like me and you.
Privacy advocates are in favor of giving registrants more control over their data, while anti-abuse researchers hate anything that will limit their ability to stop spam, phishing and the like.
It’s controversial stuff, and arguments on the RDS WG list have been been very heated recently, sometimes spilling over into ad hominem attacks.
The Expected Standards of Behavior requires all ICANN community members to treat each other with civility.
I haven’t seen anything especially egregious, but apparently the disrespect on display has been sufficiently upsetting that the Ombudsman has had to step in.
It’s the first time, that I’m aware of, that the ICANN Ombudsman has proactively monitored a list rather than simply responding to complaints.
Waye said that he plans to deliver his verdict before ICANN 59, which kicks off in a little over a week.

Ombudsman trashes ICANN’s rejection of .gay “community”

ICANN’s outgoing Ombudsman fired a parting shot at his former employer last week with a scathing analysis of its rejection of .gay as a community gTLD.
ICANN should reject the decisions of two independent Economist Intelligence Unit panels, which found that Dotgay LLC’s application for .gay did not meet the strict definition of “community” under ICANN rules, LaHatte wrote.
“This is the time to recognise that even if the EIU evaluation did not achieve the appropriate number of points, that the community is real, does need protection and should be supported,” he wrote.
His recommendation appears on his personal blog, dated July 27, the same day his contract with ICANN expired. It has not appeared on the official ICANN Ombudsman blog.
The EIU is responsible for conducting Community Priority Evaluations for applicants who claim to be representing communities.
Its decisions have been unpredictable and to a degree inconsistent, but both times its panels looked at Dotgay’s .gay, they scored the application lower than the 14 out of 16 points required to pass the CPE.
Winning a CPE generally means you get the gTLD in question. Losing means you have to go to auction against competing applicants.
In the case of .gay, the other applicants are Top Level Design, Minds + Machines and Rightside.
Dotgay failed both times because its stated community — which includes straight people — does not match the string “gay”.
Nobody’s ever said that there’s no such thing as a gay community, they’ve just said there’s no such thing as a gay Community (big C) as defined by Dotgay LLC.
LaHatte’s recommendation does not delve into the nitty-gritty of the scoring process, but seems to criticize the system — and the flawed Request for Reconsideration system Dotgay has thrice unsuccessfully invoked — as “inadequate”. He wrote:

The role of the ombudsman is to deal with issues of fairness, and this encompasses issues such as respect for diversity and support for all parts of our community. Sometimes the mechanisms which we have put together to resolve challenges are simply inadequate…
But the issue that I want to emphasise in this recommendation is that it has always been open to ICANN to reject an EIU recommendation, especially when public interest considerations are involved. What is needed is to take a bold approach and demonstrate to the ICANN community, but also much more widely, to the world of Internet users, that ICANN has a commitment to principles of international law (see Article IV of the Bylaws), including human rights, fairness, and transparency.
The board will be very aware of the human rights initiatives undertaken in the light of the IANA transition and the careful evaluation of the accountability processes. But sometimes it is necessary to take a view which evaluates whether the decision taken corresponds with the bylaws and articles of incorporation. That view should be that ICANN supports the gay community and recognises that there is a community which requires protection and recognition, which has been marginalized, threatened and attacked, and which should be considered a genuine community notwithstanding the EIU recommendation.

He’s basically calling on ICANN’s board to cast aside the rules and previous practice in this particular instance and instead make a political statement, in my reading of the recommendation.
I don’t think ICANN will do that.
On a couple of occasions when Dotgay has suffered an ICANN-induced setback in the past, ICANN has put out statements reminding everyone that there will be a .gay, they only question is who runs it.
Because Dotgay filed a community application, it would be obliged to make .gay a restricted space. Its application talks about registrants having to be approved as eligible before they register.
But it also would have the strictest measures in place to address homophobia and harassment — something the other applicants may, but have not formally committed, to implement.

ICANN Ombudsman let go as role comes up for review

ICANN’s Ombudsman, Chris LaHatte, has been told his services are no longer needed.
His current contract expires July 27, but he’s been informed that it will not be renewed.
No reason has been given for the move.
Herb Waye, who took the role on an interim basis in 2011 after the departure of former Ombusdman Frank Fowlie, will step in again while ICANN looks for a permanent replacement.
LaHatte will continue on as an adviser during the transition.
The decision to replace LaHatte comes as the ICANN community begins on so-called Work Stream 2 of the IANA transition process, which includes a review of the role of the Ombudsman in ICANN’s power structure.
The Ombudsman’s job is currently to adjudicate on matters of fairness in ICANN’s activities.
He or she reports to the board and any advice given is non-binding.

ICANN pimps new sexual harassment rules

ICANN has proposed new anti-harassment guidelines for its community that would ban “unwelcome hostile or intimidating behavior”.
It wants your comments on the changes to its longstanding “Expected Standards of Behavior” document, which applies to both its in-person meetings and online discussions and mailing lists.
The proposed addition to the document reads like this:

Respect all members of the ICANN community equally and behave according to professional standards and demonstrate appropriate behavior. ICANN strives to create and maintain an environment in which people of many different backgrounds and cultures are treated with dignity, decency, and respect. Specifically, participants in the ICANN process must not engage in any type of harassment. Generally, harassment is considered unwelcome hostile or intimidating behavior — in particular, speech or behavior that is sexually aggressive or intimidates based on attributes such as race, gender, ethnicity, religion, age, color, national origin, ancestry, disability or medical condition, sexual orientation, or gender identity.

The definition of harassment has been borrowed almost directly from the Internet Engineering Task Force’s policy on harassment, which was signed off in 2013.
ICANN has added the words “ethnicity” and “medical condition” to the IETF’s list of protected characteristics, but has not included the IETF’s list of examples:

the use of offensive language or sexual imagery in public presentations and displays, degrading verbal comments, deliberate intimidation, stalking, harassing photography or recording, inappropriate physical contact, and unwelcome sexual attention.

The changes were prompted by a recent allegation of sexual harassment at an ICANN meeting which divided the community on whether the alleged incident amounted to sexual harassment or not.
ICANN’s Ombudsman, Chris LaHatte, concluded that whatever took place “cannot be considered serious”, but he did not make a formal finding.
LaHatte has already endorsed the proposed change to the expected standards document.
It does not seem unreasonable to me, at first glance, either.
What do you think? ICANN has opened a public comment period that closes June 25, to find out.

“Cheese sandwich” comment blamed for sexual harassment complaint

ICANN’s first formal case of sexual harassment has been closed with no official finding by the Ombudsman.
Ombudsman Chris LaHatte today said he was unable to establish the facts of the alleged incident, which is said to have taken place during a coffee break at the ICANN 55 meeting in Marrkech, March 6.
LaHatte said that the complainant’s decision to publicly name the man she says harassed her had “compromised” his investigation and that the alleged actions of the man “cannot be considered serious”.
It also emerged publicly for the first time that the interaction that led to the complaint was a brief conversation about sandwiches.
LaHatte’s report on the incident says:

The allegation was that she had a relatively brief discussion with a man, which she found derogatory and which she considered was sexual harassment. The description was that he leaned towards her and took her ICANN identification tag. There was a general discussion about the food, and she said that he made the comment, “you can go make me a cheese sandwich”

But the complainant told DI a slightly different version of events that she said is more accurate:

[The man] approached me, pulled at my name tag, examined it and dropped it. A little later, he lifted my name tag and flipped it back and forth, asking me “Where are you from?”, leaned in, lecherously looked at me and then said, “do you know how to make a cheese sandwich?” I was taken aback and responded angrily with “Yes, that is why I came here, to make you cheese sandwiches.” He went on to throw another lecherous look my way and said, “Well, I love veg sandwiches.”

According to LaHatte, the man in question flatly denies that the incident even took place.
The complainant says the incident can be defined as sexual harassment under the UN Convention on the Elimination of all Forms of Discrimination Against Women, Indian law (she is Indian), and the ICANN corporate policy against sexual harassment among its staff.
Neither party is a member of ICANN staff.
LaHatte says in his report that he has not considered jurisdiction or matters of definition, given that he was unable to even establish the facts of the incident.

In this complaint, the matters alleged cannot be considered serious by any standard. If in fact the action and statement were made, it may have been a lapse of good manners and insensitive to gender. Such issues need to be taken in proportion, and best practice is not to debate this in a public forum where the issues are not yet clear…
However any chance of discussing the comments has been compromised by the decision to identify the other party before my investigation could be completed, and for the parties to have had a full opportunity to consider the alternative versions. The other party has been publically named without an opportunity to make any comment or denial of the incident. It is also part of my role as the ombudsman to ensure that standards of procedural fairness are met, and the premature publication regrettably does not meet the standards of natural justice, because the parties have a right to be heard before this occurred.

LaHatte names the complainant (who waived her right to confidentiality) but not the man (who didn’t) in his report.
The man has apparently considered legal action over his public naming.

ICANN receives first sexual harassment complaint

ICANN’s Ombudsman has received what is thought to be the first complaint of sexual harassment at an ICANN meeting.
The allegation emerged during a meeting between non-commercial stakeholders and the ICANN board of directors yesterday.
During its sessions with constituency groups yesterday, the ICANN board had pushed participants for their views on geographic and gender diversity in the ICANN community.
“Two days ago I was sexually harassed at this meeting,” the complainant, who I’m not going to name here, told the board.
She said she discovered the best way to address her grievance was by reporting it to the ICANN Ombudsman.
“I was amazed that the Ombudsman told me that I was the first registered complaint of sexual harassment in the history of ICANN,” she said.
No details of the incident or alleged perpetrator were given.
The complainant said that ICANN should have a policy in place to deal with such behavior.
The organization has written expected standards of behavior, but they don’t specifically cover harassment.
While I’m aware of multiple incidents of women feeling sexually harassed at ICANN meetings — even witnessed a couple first-hand — this is the first time I’ve heard about a formal complaint being made.
A few years ago, the Ombudsman stepped in quickly to resolve an issue of sexist paraphernalia at a exhibitor’s booth, but that complaint was made by a man and did not amount to “harassment” as such.

Should new gTLD objections have an appeals process?

That’s the question the ICANN Ombudsman is asking today.
Several new gTLD applicants that have lost objections — many in decisions that appear to diverge from ICANN’s rules or are inconsistent with other decisions — have been in touch to ask for redress, Ombudsman Chris LaHatte blogged this morning. He wrote:

The real problem as it seems to me, is that apart from the internal review procedures, there is no ability to seek an appeal from the panel decisions. A number of complainants had mentioned the need for an appeal process, emphasising that some of the decisions were in their view, inconsistent or not following the majority views.

LaHatte noted that his role is to decide issues of fairness in ICANN’s own decisions. As objections are all handled by third-party arbitration bodies, it’s not at all clear whether he has any authority at all over objection decisions.
Applicants have also been invoking the Reconsideration process en masse in an attempt to have successful objections overturned, but all Reconsideration requests to date have been rejected.
Reconsideration generally requires that the requester provide ICANN with new evidence that was not considered at the time of the original decision.
The ICANN Board Governance Committee, which handles Reconsideration, appears to be happy to leave objections in the hands of the arbitrators so far.
But the new gTLD objection process is a bit of a joke at the moment.
String Confusion Objection panelists have delivered inconsistent decisions, while Community Objection and Limited Public Interest Objection panels often seem to be making up rules as they go.
So should ICANN have an appeals process? If one is created it will undoubtedly be broadly used.

ICANN compliance not broken, Ombudsman rules

Ombudsman Chris LaHatte has rejected a complaint from spam research firm KnujOn — and 173 of its supporters — claiming that ICANN’s compliance department is failing consumers.
In a ruling posted online today, LaHatte said there was “no substance” to complaints that a small number of “bad” registrars, notably BizCN, have been allowed to run wild.
KnujOn’s Garth Bruen is a regular and vocal critic of ICANN compliance, often claiming that it ignores complaints about bad Whois data and fails to enforce the Registrar Accreditation Agreement, enabling fake pharma spamming operations to run from domains sponsored by ICANN-accredited registrars.
This CircleID blog post should give you a flavor.
The gist of the complaint was that ICANN regularly fails to enforce the RAA when registrars allow bad actors to own domain names using plainly fake contact data.
But LaHatte ruled, based on a close reading of the contracts, that the Bruen and KnujOn’s supporters have overestimated registrars’ responsibilities under the RAA. He wrote:

the problem is that the complainants have overstated the duties of the registrar, the registrant and the role of compliance in this matrix.

He further decided that allegations about ICANN compliance staff being fired for raising similar issues were unfounded.
It’s a detailed decision. Read the whole thing here.

Rejected .gay gTLD objection ruled “unfair”

dotgay LLC could be hit by another formal new gTLD objection from gay Republicans.
ICANN Ombudsman Chris LaHatte today said that it was “unfair” that a community objection filed by GOProud, a gay lobby group, was rejected by the International Chamber of Commerce.
The ICC screwed up, it seems, judging by LaHatte’s decision.
Washington DC-based GOProud, which seeks to show that not all gay rights advocates have liberal views on other issues, had filed a community-based objection to dotgay’s .gay gTLD application.
While the substance of the objection is not known, I suspect it’s politically motivated. The other objection to dotgay’s application was filed by another gay Republican organization, the Metroplex Republicans of Dallas (formerly Log Cabin Republicans Dallas).
The ICC rejected the objection because it was about 500 words over the prescribed limit, but it sent the notification to the wrong email address, according to LaHatte’s blog.
Had GOProud received the notification, it would have had time to amend its objection to rectify the mistake. However, by the time it discovered the problem the filing deadline had passed.
LaHatte wrote:

there is some unfairness in the subsequent rejection given the apparent error in the use of the wrong email. It seems to me that it would be relatively easy to unwind that decision, and permit the late filing of the objection. I can of course only make a recommendation, but in this case where there is some unfairness I think the matter should be revisited.

The Ombudsman’s role is to handle complaints about unfairness in ICANN’s actions, so it’s not entirely clear what’s going to happen in this case, given that the ICC is an ICANN subcontractor.
LaHatte’s recommendation is certainly not binding in either case. Whether the ICC changes its mind may depend on whether ICANN asks it to or not.
dotgay is the New York-based applicant founded by Scott Seitz. It’s one of four companies applying for .gay.
The other three applicants — Top Level Domain Holdings, Top Level Design and Demand Media — have each received community objections from the International Lesbian Gay Bisexual Trans and Intersex Association, a dotgay supporter.