Late new gTLD objections “not unfair”

ICANN Ombudsman Chris LaHatte has ruled that the decision to accept formal new gTLD objections sent one minute after the filing deadline “does not create unfairness”.
The decision is a blow to at least one applicant, which had tried to have an objection against it kicked out for being late.
LaHatte received a complaint from the applicant, believed to be represented by Galway Strategy Group’s Jim Prendergast, last month.
The complainant said that an objection by a competing applicant was sent at 00:01:02 UTC on March 15, one minute and three seconds after the deadline laid out in ICANN’s Applicant Guidebook.
But the dispute resolution providers hired by ICANN to manage objections decided to give a little leeway, agreeing among themselves (with ICANN’s tacit consent) to a five-minute extension.
Now LaHatte has decided — entirely reasonably in my view — that this was not unfair.
He wrote: “It is my view that a five minute window is a proportionate response and does not create unfairness for the applicants, but does provide fairness given that it is only five minutes.”
He added that at least one other objection, which was filed much later, was rejected for its tardiness.

Ombudsman probing “late” new gTLD objections

ICANN’s Ombudsman Chris LaHatte has received complaints about some new gTLD objections that were apparently filed after the submission deadline but are being processed anyway.
Two companies have officially called on LaHatte to tell ICANN that “late complaints should not be received on the basis that the deadlines were well advertised and achievable”.
The issue seems to be that ICANN had set a deadline of 2359 UTC March 13 for objections to be filed, and some of them arrived slightly late.
The delays appear to have been a matter of mere minutes, and blamed on latency caused by heavy email attachments and other technical problems.
According to ICANN, the dispute resolution providers decided to give objectors a five-minute grace period, essentially extending the deadline from 2359 UTC to 0004 UTC the following day.
The recipients of these objections clearly now want to use this technicality to kill off the objections, avoiding the cost of having to defend themselves.
In a set of answers to questions posed verbally in Beijing last month, published last week (pdf), ICANN said:

ICANN is confident that the Dispute Resolution Service Providers are complying with the guidelines in the [Applicant Guidebook].

I don’t know which applications are affected by the issue, but the question at the Beijing public forum was posed by new gTLD consultant Jim Prendergast of the Galway Strategy Group.
He received applause, so I guess he wasn’t the only person in the room with an interest in the subject.
LaHatte, on his blog, is looking for feedback before making his decision.

Ombudsman probing secretive Trademark Clearinghouse meetings

ICANN Ombudsman Chris LaHatte is investigating ICANN’s recent closed-door Trademark Clearinghouse talks, and wants feedback from community members.
In a brief blog post this evening, LaHatte wrote:

I have received a complaint about the process used in the recent Trademark Clearinghouse meetings where decisions were made on the way forward. The complaint in summary says that the decisions were made without full consultation from some contituencies. I have of course not formed any view on this, and need input from people who participated and were pleased with the process, or from others who feel they were excluded. Such submissions can be made to me at ombudsman@icann.org, or on this blog. as comments.

The complaint refers to meetings in Brussels and Los Angeles recently, convened by CEO Fadi Chehade to discuss proposals jointly submitted by the Intellectual Property Constituency and Business Constituency.
The IPC and BC continue to call for stronger trademark protections in the new gTLD program, and the talks were designed to see if any changes could be made to the TMCH that would fulfill these requests.
The two meetings ultimately saw ICANN come up with a “strawman proposal” for giving the IPC/BC some of what they wanted, which is currently open for public comment.
However, the meetings were invitation-only and, unusually for ICANN, not webcast live. Attendees at the LA meeting also say that they were asked by ICANN not to tweet or blog about the talks.
While the LA meeting was apparently recorded, to the best of my knowledge the audio has not yet been released.
While LaHatte did not of course name the person who complained about these meetings, I’d hazard a guess they are from the non-commercial side of the house, members of which have already complained that they were vastly outnumbered by IP interests.
(UPDATE: I was correct. The complaint was filed by Maria Farrell of the Non-Commercial Users Constituency)
Former GNSO Council chair Stephane Van Gelder (from the Registrar Constituency) also recently wrote a guest post for DI in which he questioned the possible circumvention of ICANN’s established bottom-up policy-making processes.
There’s also substantial concern in other constituencies that ICANN is trying to appease the trademark lobby for political reasons, attempting to force through their desired changes to the new gTLD program under the guise of tweaks to “implementation” detail.
Chehade has asked the GNSO Council for “policy guidance” on the TMCH strawman proposals, which seems to be already stirring up passions on the Council ahead of its December 20 meeting.
The question of what is “implementation” and what is “policy” is a meme that we will be returning to before long, without doubt.

Why is ICANN’s Ombudsman trying to take down a drink-drive mugshot?

Apparently there wasn’t already enough confusion about ICANN’s role in internet governance.
ICANN’s independent Ombudsman, Chris LaHatte, seems to be getting involved in content-related arguments between netizens and web site operators, according to a new case report posted on his blog.
LaHatte recently received a complaint from an internet user about the web site Busted Mugshots, a search engine for US criminal records.
The complainant was a professional who in his younger days had been pulled over for drink-driving and photographed by police, but never charged or convicted of any offense.
Busted Mugshots had apparently tried to charge him a fee and demanded to see non-existent court acquittal documents in order to remove his photograph from the site.
I’m assuming the individual in question complained to the Ombudsman because he has no idea what powers ICANN has or what the ICANN Ombudsman’s role is.
ICANN, for avoidance of doubt, has no powers over the content of web sites, and the Ombudsman’s job is to investigate complaints about ICANN’s actions or decisions.
Yet LaHatte, perplexingly, got involved anyway.
According to his case notes he contacted Busted Mugshots to point out that it was very unfair to keep the complainant’s photo up, but met with the same response as the complainant.
I’ve no doubt that LaHatte’s heart was in the right place here, and he says he pointed out at all times that he has no jurisdiction over web content, but I can’t help but worry that this doesn’t help ICANN’s image.
You only need to lurk on a Twitter search for “icann” for a day or two — or read some non-industry media coverage for that matter — to know that lots of people out there don’t know what ICANN does.
Many regular internet users mistakenly believe the organization is the internet’s government or police force, and ICANN has done a pretty poor job over the years of correcting misconceptions.
While I’m sure no one would challenge LaHatte’s right to complain about the contents of web sites as a private citizen, I don’t think the Ombudsman should be seen to be involving himself in this kind of dispute.

Beckstrom probed over bizarre spam complaint

ICANN’s Ombudsman looked into a complaint that former CEO Rod Beckstrom allegedly spammed community members the day after he left the organization, it has emerged.
Whoever filed the complaint evidently did not like Beckstrom one bit.
According to Ombudsman Chris LaHatte, who rejected the complaint, the complainant said:

I wish to file a formal complaint about the below SPAM originating from ICANN’s servers. Since Mr. Beckstrom has left yesterday it is clear that he cannot have had access to ICANN infrastructure any longer. If however this were the case, one would have to consider YET ANOTHER serious breach. In any case I do not wish to receive communications of any kind from this person, Mr. Beckstrom. Please confirm receipt of this complaint, commence an investigation and advise me of the outcome.

LaHatte found that the email in question was “a courteous farewell and introduction to the new CEO” sent to between 50 and 60 people, all movers and shakers in the ICANN community.
According to LaHatte, who blogged about the complaint today:

After discussing this matter with the ICANN staff, it is clear that this email was in fact not spam in the common meaning of the term. Spam is usually considered bulk emailing sent indiscriminately to very large numbers of recipients. By way of contrast, 60 emails specifically tailored for groups of recipients is hardly unusual within a large organisation such as ICANN.

I know Beckstrom was not a massively popular individual with some in the ICANN community, but this complaint seems to be way out of proportion for a simple unwanted email.
Somebody out there needs to take a chill pill.

Ombudsman dealing with new gTLDs complaint

ICANN Ombudsman Chris LaHatte is investigating a complaint related to the new generic top-level domains program.
Speaking to DI today, LaHatte declined to disclose the nature of the complaint or the identity of the complainant, but said he hoped to have the case resolved in a few weeks.
He may publish an official report about the investigation, he said. This would be the first such report to emerge from the Ombudsman’s office since October 2009.
The often-overlooked Ombudsman is not mentioned at all in the Applicant Guidebook, but it is an avenue open to applicants who believe they’ve been treated unfairly.
LaHatte said it’s “unlikely but conceivable” that he will receive complaints about unfair behavior when applications start being processed – and rejected – later this year.
The Ombudsman’s job is to look into allegations of unfairness in ICANN staff actions or the decisions of its board of directors.
But LaHatte said he believes he would be able to also handle complaints about the program’s outside evaluators, if applicants believe they have been treated unfairly.
“There will be some people who prefer to litigate and some who would prefer to come to me,” he said. “The message I would like to send to the community is that my door is always open.”
But he warned that the Ombudsman is not a “court of appeal” for applicants who simply disagree with adverse decisions.
The Ombudsman job has in the past been criticized for being relatively toothless – the role answers to the ICANN board and has no direct power other than the ability to make recommendations.
LaHatte characterized his ability to effect change as a “moral persuasion”.
He said he’s received 23 complaints so far in January, already double what his predecessor received per month, but many of these will be out his jurisdiction — cases of ICANN being blamed for domain theft or a registrar problem, for example.

ICANN appoints new Ombudsman

ICANN has named Kiwi lawyer Chris LaHatte as its new Ombudsman.
The appointment, which runs for an initial period of two years from July 28, was made during a board meeting last Thursday, and revealed today.
LaHatte said this of his qualifications, on the ICANN blog:

I am an experienced mediator and lawyer and have practiced in New Zealand, Taiwan and Central Asia. I qualified as a lawyer from the University of Auckland and earned a Masters Degree in Dispute Resolution from Massey University, with judicial settlement conferences as my thesis. I am a Fellow of the Arbitrators and Mediators Institute of New Zealand, a mediator for the New Zealand Law Society on cost issues and a construction law adjudicator.

While his experience appears to be primarily in the construction industry, he seems to have at least a bit of domain savvy already, given that he owns his last name under .co.nz.
LaHatte replaces interim Ombudsman Herb Waye, who stood in following the departure of his old Mountie colleague Frank Fowlie, ICANN’s first Ombudsman, who quit in January.
The Ombudsman role was set up to handle complaints about the organization. It is often criticized for being relatively toothless.

ICANN chief gets bonus

ICANN chief executive Rod Beckstrom is to be paid a bonus potentially as high as $195,000 this year.
Did you know that there were two ICANN board meetings held in Cartagena last week?
I didn’t, but I just spotted that resolutions from a December 8 meeting have been posted on the ICANN web site.
There are only two resolutions. They grant bonuses to Beckstrom and to outgoing ombudsman Frank Fowlie.
The board approved “a proportion” of both men’s “at-risk component”, which basically means their performance-related bonuses.
The resolutions do not specify how big a proportion was approved for either, but it is known that the maximum Beckstrom could have been awarded is $195,000.
His base salary is $750,000.

ICANN ombudsman quits

Frank Fowlie, ICANN’s ombudsman, has announced he will leave the post before the end of January next year.
A statement posted to the ICANN web site does not explain the reasons for his departure, but it does include this nugget:

“After six years with ICANN, I have logged 794 days in travel status, or about two years and five months away from home,” said Fowlie in announcing his departure to the ICANN staff. “It’s time for me to spend a bit more time at home with my wonderful wife.”

Read into that what you will.
ICANN will now look for a replacement. The ombudsman’s role is to hear complaints about ICANN’s actions. Former UN staffer Fowlie was the first to hold the position.
For no other reason than I think that it’s funny, here’s a link to a story about Fowlie getting shirty with a flight attendant.