Latest news of the domain name industry

Recent Posts

ICANN finds no conflict of interest in .sport decision

Kevin Murphy, June 5, 2017, Domain Policy

ICANN has rejected claims that the .sport gTLD contention set was settled by an arbitrator who had undisclosed conflicts of interest with the winning applicant.

Its Board Governance Committee last week decided that Community Objection arbitrator Guido Tawil had no duty to disclose his law firm’s ties to major sports broadcasters when he effectively eliminated Famous Four Media from its fight with SportAccord.

Back in 2013, SportAccord — an applicant backed by pretty much all of the world’s major sporting organizations — won the objection when Tawil ruled that FFM’s fully commercial, open-registration bid could harms its members interests.

FFM complained with Requests for Reconsideration, Ombudsman complaints and then an Independent Review Process complaint.

It discovered, among other things, that Tawil’s law firm was helping broadcaster DirecTV negotiate with the International Olympic Committee (one of SportAccord’s backers) for Olympics broadcasting rights at the time of the Community Objection.

The IRP panel ruled in February this year that the BGC had failed to take FFM’s allegations of Tawil’s “apparent bias” into account when it processed Reconsideration requests back in 2013 and 2014.

So the BGC reopened the two Reconsideration decisions, looking at whether Tawil was required by International Bar Association guidelines to disclosed his firm’s client’s interests.

In a single decision (pdf) late last week, the BGC said that he was not required to make these disclosures.

In each of the three claims of bias, the BGC found that the connections between Tawil and the alleged conflict were too tenuous to have required disclosure under the IBA rules.

It found that the IOC and SportAccord are not “affiliates” under the IBA definition, which requires some kind of cross-ownership interests, even though the IOC is, judging by the .sport application, SportAccord’s most valued supporter.

The BGC also found that because Tawil’s firm was representing DirecTV, rather than the IOC, the relationship did not technically fall within the disclosure guidelines.

For these and other reasons, the BGC rejected FFM’s Reconsideration requests for a second time.

The decision, and the fact that FFM seems to have exhausted ICANN’s appeals mechanisms, means it is now more likely that SportAccord’s application will be allowed to continue negotiating its .sport Registry Agreement with ICANN, where it has been frozen for years.

Time to show ICANN who’s boss!

Kevin Murphy, June 1, 2017, Domain Policy

You are in charge of ICANN.

That statement may sound trite — it is trite — but it’s always been true to some extent.

Even if their individual voices are often lost, members of the ICANN community have always had the ability to influence policy, whether through sporadic responses to public comment periods or long term, soul-crushing working group volunteer work.

ICANN only really has power through community consent.

That’s another trite statement, but one which became more true on October 1 last year, when ICANN separated itself from US government oversight and implemented a new set of community-created bylaws.

The new bylaws created a new entity, the “Empowered Community”, which essentially replaced the USG and is able to wield more power than the ICANN board of directors itself.

Indeed, the Empowered Community can fire the entire board if it so chooses; a nuclear option for the exercise of community control that never existed before.

And the EC is, at the ICANN 59 public meeting in Johannesburg at the end of the month, about to get its first formal outing.

What the EC will discuss is pretty dull stuff. That’s why I had to trick you into reading this post with an outrageous, shameless, sensationalist headline.

Before getting into the substance of the Johannesburg meeting, I’m going to first bore you further for several paragraphs by attempting to answering the question: “What exactly is the Empowered Community?”

The EC exists an an “unincorporated association” under California law, ICANN deputy general counsel Sam Eisner told me.

It doesn’t have shareholders, directors, staff, offices… you wouldn’t find it by searching California state records. But it would have legal standing to take ICANN to court, should the need arise.

It was basically created by the new ICANN bylaws.

It comprises the five major constituencies of ICANN — the Generic Names Supporting Organization, the Country Code Names Supporting Organization, the Governmental Advisory Committee, the At-Large Advisory Committee and the Address Supporting Organization.

They’re called “Decisional Participants” and each is represented on a committee called the EC Administration by a single representative.

Right now, each group is represented on the Administration by its respective chair — GNSO Council chair James Bladel of GoDaddy represents the GNSO currently, for example — but I gather that doesn’t necessarily have to be the case; each group can decide how it appoints its rep.

Bladel tells me that each representative only takes action or casts a vote after being told to do so by their respective communities. As individuals, their power is extremely limited.

When the EC makes decisions, there must always be at least three votes in favor of the decision and no more than one vote against. A 3-1 vote would count as approval, a 3-2 vote would not.

This is to make sure that there is a fairly high degree of consensus among stakeholders while also preventing one community stonewalling the rest for strategic purposes.

The EC’s nine powers are enumerated in article 6.2 of the ICANN bylaws.

It can hire and fire an unlimited number of directors, reject the ICANN budget, file Requests for Reconsideration or Independent Review Process appeals, sue ICANN, and oversee changes to the ICANN bylaws.

Most of these powers are reactive — that is, if the ICANN board did something terrible the EC would have to consciously decide to act upon it in some way.

But one of them — approval of changes to Fundamental Bylaws — places the EC squarely in the legislative pathway. Think of it like the Queen of England’s Royal Assent or the US president’s ability to veto bills before they become law.

That’s the role the EC will adopt in Joburg this month.

The ICANN board recently passed a resolution calling for a new board committee to be created to focus on handling accountability mechanisms such as Reconsideration, removing the function from the overworked Board Governance Committee.

Because this requires a change to a Fundamental Bylaw — those bylaws considered so important they need more checks and balances — the EC has been called upon to give it the community’s formal consent.

To the best of my knowledge, the bylaws amendment is utterly uncontroversial. I haven’t heard of any objections or complaints about what essentially seems to be a probably beneficial tweak in how ICANN’s board functions.

But it will be the EC’s first formal exercise of executive power.

So there will be a session at ICANN 59 in which the EC convenes to discuss the board’s resolution and, probably, hear any input it has not already heard.

The exact format of the session seems to be up in the air at the moment, but I gather an open-mic “public forum” style meeting of about an hour is the most likely choice. It will of course be webcast, with remote participation, as almost all ICANN public meetings are.

No votes will be cast at the session — I’m told the bylaws actually forbid it — but the EC will have only 21 days afterwards to poll their communities and formally deliver their verdict. Assuming at least three of the communities consent to the board resolution and no more than one objects, it will automatically become ICANN law.

The next test of the EC, which would prove to be actually newsworthy enough to write about without a clickbait headline, may well be the ICANN budget. ICANN’s financial year ends at the end of June, and the EC has explicit powers to reject it.

The budget often raises concerns from those parties who actually pay into it, and given the difficulties the industry is in right now there may be more concerns than usual.

Anyway, this is the way ICANN works nowadays. It would make for more interesting reading if a triumvirate of Iran, China and Russia now ran the show, but they don’t. You lot do.

Just be glad Donald Trump isn’t holding the reins.

Sorry, that was also trite, wasn’t it.

.gay, .music and others in limbo as ICANN probes itself

Kevin Murphy, May 8, 2017, Domain Policy

Several new gTLD applicants have slammed ICANN for conducting an investigation into its own controversial practices that seems to be as opaque as the practices themselves.

Seven proposed new gTLDs, including the much-anticipated .music and .gay, are currently trapped in ICANN red tape hell as the organization conducts a secretive probe into how its own staff handled Community Priority Evaluations.

The now broad-ranging investigation seems have been going on for over six months but does not appear to have a set deadline for completion.

Applicants affected by the delays don’t know who is conducting the probe, and say they have not been contacted by anyone for their input.

At issue is the CPE process, designed to give genuine “community” gTLD applicants a way to avoid a costly auction in the event that their choice of string was contested.

The results of the roughly 25 CPE decisions, all conducted by the independent Economist Intelligence Unit, were sometimes divergent from each other or just baffling.

Many of the losers complained via ICANN’s in-house Requests for Reconsideration and then Independent Review Process mechanisms.

One such IRP complaint — related to Dot Registry’s .inc, .llc, .llp applications — led to two of the three-person IRP panel deciding last July that ICANN had serious questions to answer about how the CPE process was carried out.

While no evidence was found that ICANN had coached the EIU on scoring, it did emerge that ICANN staff had supplied margin notes to the supposedly independent EIU that had subsequently been incorporated into its final decision.

The IRP panel majority wrote that the EIU “did not act on its own in performing the CPEs” and “ICANN staff was intimately involved in the process”.

A month or so later, the ICANN board of directors passed a resolution calling for the CEO to “undertake an independent review of the process by which ICANN staff interacted with the CPE provider”.

Another month later, in October, the Board Governance Committee broadened the scope of the investigation and asked the EIU to supply it with documents it used to reach its decisions in multiple controversial CPE cases.

A couple of weeks ago, BGC chair Chris Disspain explained all this (pdf) to the applicants for .music, .gay, hotel, .cpa, .llc, .inc, .llp and .merck, all of which are affected by the delay caused by the investigation.

He said that the investigation would be completed “as soon as practicable”.

But in response, Dot Registry and lawyers for fellow failed CPE applicant DotMusic have fired off more letters of complaint to ICANN.

(UPDATE: Dot Registry CEO Shaul Jolles got in touch to say his letter was actually sent before Disspain’s, despite the dates on the letters as published by ICANN suggesting the opposite).

Both applicants note that they have no idea who the independent party investigating the CPEs is. That’s because ICANN hasn’t identified them publicly or privately, and the evaluator has not contacted the applicants for their side of the story.

DotMusic’s lawyer wrote (pdf):

DotMusic’s rights are thus being decided by a process about which it: (1) possesses minimal information; (2) carried out by an individual or organization whose identity ICANN is shielding; (3) whose mandate is secret; (4) whose methods are unknown; and (5) whose report may never be made public by ICANN’s Board.

He added, pointedly:

The exclusion of directly affected parties from participation eerily reproduces the shortcomings of the EIU evaluations that are under scrutiny in the first place.

Dot Registry CEO Shaul Jolles, in his letter (pdf), quoted Disspain saying at a public forum in Copenhagen this March that a blog post addressing the concerns had been drafted and would be published “shortly”, but wasn’t.

He suggested the investigation is “smoke and mirrors” and, along with DotMusic, demanded more information about the investigator’s identity and methods.

It does strike me as a looking a bit like history repeating itself: ICANN comes under fire for non-transparently influencing a supposedly independent review and addresses those criticisms by launching another non-transparent supposedly independent review.

No matter what I feel about the merits of the “community” claims of some of these applicants, it has been over five years now since they submitted their applications and the courtesy of transparency — if closure itself its not yet possible — doesn’t seem like a great deal to ask.

ICANN’s Empowered Community to get its first test-drive after appeals panel vote

Kevin Murphy, February 8, 2017, Domain Policy

ICANN’s post-transition bylaws have only been in effect for a few months, but the board of directors wants to change one of them already.

The board last week voted to create a new committee dedicated to handling Requests for Reconsideration — formal appeals against ICANN decisions.

But because this would change a so-called Fundamental Bylaw, ICANN’s new Empowered Community mechanism will have to be triggered.

The Board Governance Committee, noting that the number of RfR complaints it’s having to deal with has sharply increased due to fights over control of new gTLDs, wants that responsibility split out to be handled by a new, dedicated Board Accountability Mechanisms Committee.

It seems on the face of it like a fairly non-controversial change — RfRs will merely be dealt with by a different set of ICANN directors.

However, it will require a change to one of the Fundamental Bylaws — bylaws considered so important they need a much higher threshold to approve.

This means the untested Empowered Community (which I’m not even sure actually exists yet) is going to get its first outing.

The EC is an ad hoc non-profit organization meant to give ICANN the community (that is, you) ultimate authority over ICANN the organization.

It has the power to kick out directors, spill the entire board, reject bylaws changes and approve Fundamental Bylaws changes.

It comprises four or five “Decisional Participants” — GNSO, the ccNSO, the ALAC, the ASO and (usually) the GAC.

In this case at least three of the five Decisional Participants must approve the change, and no more than one may object.

The lengthy process for the EC approving the proposed bylaws change is outlined here.

I wouldn’t expect this proposal to generate a lot of heated discussion on its merits, but it will put the newly untethered ICANN to the test for the first time, which could highlight process weaknesses that could be important when more important policy changes need community scrutiny.

ICANN feeds troll, refuses to censor “rip-off” web site

Kevin Murphy, February 2, 2017, Domain Policy

ICANN’s board has rejected a formal demand that it “take down” the web site RipoffReport.com in what is possibly the strangest Request for Reconsideration case it has considered to date.

The almost 20-year-old site hosts reports from consumers about what they consider to be “rip-offs”. It’s seen its fair share of controversy and legal action over the years.

Somebody called Fraser Lee filed the RfR in December after (allegedly) trying and failing to get the site’s registrar, DNC Holdings (aka Directnic), to yank the domain and then trying and failing to get ICANN Compliance to yank DNC’s accreditation.

The request (pdf) is a rambling, often incoherent missive, alleging that RipoffReport contains “legally proven illegal defamatory, copyright infringing, hateful, suicidal and human rights depriving content” and demanding ICANN “take down the site RIPOFFREPORT.COM AS EXPECTED BY THEIR POLICIES OR RISK BEING SUED AS AN ENDORSER OF CYBER TERRORISM.”

ICANN’s Board Governance Committee has naturally enough rejected (pdf) the request, largely on the grounds that it does not have the authority to police internet content and that it could find no evidence that DNC had breached its contract:

the Requester ultimately seeks to have ICANN assume greater responsibility of policing purportedly illegal activity on the Internet, and attempts to place the burden on ICANN to regulate content on the Internet. That is not ICANN’s role. If content is to be regulated, that review and enforcement falls to institutions charged with interpreting and enforcing laws and regulations around the world, such as law enforcement

In a bizarre twist, the BGC further decided that “Fraser Lee” may not even be the person who filed the original complaints with DNC and ICANN Compliance.

“Fraser Lee, has never initiated a complaint with the ICANN Contractual Compliance department,” the BGC wrote.

A lengthy (and, one imagines, maddening) email thread between DNC’s lawyer and somebody called “Smith”, evidently provided by DNC to ICANN (pdf), appears show that at least two different identities are in play here.

It’s an odd one for sure, but it does have the virtue of getting ICANN’s board on the record again stating that it does not police content.