GNSO still breathing as ICANN retracts “flawed” Trademark+50 thinking

The Generic Names Supporting Organization isn’t dead after all.
ICANN’s Board Governance Committee has retracted a document related to new gTLD trademark protections that some on the GNSO Council believed spelled the end of the multistakeholder model as we know it.
The BGC, in rejecting a formal Reconsideration Request related to the “Trademark+50” mechanism, had used a rationale that some said was overly confrontational, legalistic and gave ICANN staff the ability to ignore community input more or less at will.
We reported on the issue in considerable detail here.
The committee on Friday retracted the original rationale, replacing it with one (pdf) that, while still containing some of the flawed reasoning DI noted last month, seems to have appeased the GNSO Council.
Neustar policy VP Jeff Neuman, who raised the original concerns, told the Council: “I believe the rationale is much more consistent with, and recognizes, the value of the multi-stakeholder model.”
The BGC did not change its ultimate decision — the Reconsideration Request has still been rejected and Trademark+50 is still being implemented in the new gTLD program.

ICANN offers to split the cost of GAC “safeguards” with new gTLD registries

All new gTLD applicants will have to abide by stricter rules on security and Whois accuracy under government-mandated changes to their contracts approved by the ICANN board.
At least one of the new obligations is likely to laden new gTLDs registries with additional ongoing costs. In another case, ICANN appears ready to shoulder the financial burden instead.
The changes are coming as a result of ICANN’s New gTLD Program Committee, which on on Tuesday voted to adopt six more pieces of the Governmental Advisory Committee’s advice from March.
This chunk of advice, which deals exclusively with security-related issues, was found in the GAC’s Beijing communique (pdf) under the heading “Safeguards Applicable to all New gTLDs”.
Here’s what ICANN has decided to do about it.
Mandatory Whois checks
The GAC wanted all registries to conduct mandatory checks of Whois data at least twice a year, notifying registrars about any “inaccurate or incomplete records” found.
Many new gTLD applicants already offered to do something similar in their applications.
But ICANN, in response to the GAC advice, has volunteered to do these checks itself. The NGPC said:

ICANN is concluding its development of a WHOIS tool that gives it the ability to check false, incomplete or inaccurate WHOIS data
…
Given these ongoing activities, ICANN (instead of Registry Operators) is well positioned to implement the GAC’s advice that checks identifying registrations in a gTLD with deliberately false, inaccurate or incomplete WHOIS data be conducted at least twice a year. To achieve this, ICANN will perform a periodic sampling of WHOIS data across registries in an effort to identify potentially inaccurate records.

While the resolution is light on detail, it appears that new gTLD registries may well be taken out of the loop completely, with ICANN notifying their registrars instead about inaccurate Whois records.
It’s not the first time ICANN has offered to shoulder potentially costly burdens that would otherwise encumber registry operators. It doesn’t get nearly enough credit from new gTLD applicants for this.
Contractually banning abuse
The GAC wanted new gTLD registrants contractually forbidden from doing bad stuff like phishing, pharming, operating botnets, distributing malware and from infringing intellectual property rights.
These obligations should be passed to the registrants by the registries via their contracts with registrars, the GAC said.
ICANN’s NGPC has agreed with this bit of advice entirely. The base new gTLD Registry Agreement is therefore going to be amended to include a new mandatory Public Interest Commitment reading:

Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name.

The decision to include it as a Public Interest Commitment, rather than building it into the contract proper, is noteworthy.
PICs will be subject to a Public Interest Commitment Dispute Resolution Process (PICDRP) which allows basically anyone to file a complaint about a registry suspected of breaking its commitments.
ICANN would act as the enforcer of the ruling, rather than the complainant. Registries that lose PICDRP cases face consequences up to an including the termination of their contracts.
In theory, by including the GAC’s advice as a PIC, ICANN is handing a loaded gun to anyone who might want to shoot down a new gTLD registry in future.
However, the proposed PIC language seems to be worded in such a way that the registry would only have to include the anti-abuse provisions in its contract in order to be in compliance.
Right now, the way the PIC is worded, I can’t see a registry getting terminated or otherwise sanctioned due to a dispute about an instance of copyright infringement by a registrant, for example.
I don’t think there’s much else to get excited about here. Every registry or registrar worth a damn already prohibits its customers from doing bad stuff, if only to cover their own asses legally and keep their networks clean; ICANN merely wants to formalize these provisions in its chain of contracts.
Actually fighting abuse
The third through sixth pieces of GAC advice approved by ICANN this week are the ones that will almost certainly add to the cost of running a new gTLD registry.
The GAC wants registries to “periodically conduct a technical analysis to assess whether domains in its gTLD are being used to perpetrate security threats such as pharming, phishing, malware, and botnets.”
It also wants registries to keep records of what they find in these analyses, to maintain a complaints mechanism, and to shut down any domains found to be perpetrating abusive behavior.
ICANN has again gone the route of adding a new mandatory PIC to the base Registry Agreement. It reads:

Registry Operator will periodically conduct a technical analysis to assess whether domains in the TLD are being used to perpetrate security threats, such as pharming, phishing, malware, and botnets. Registry Operator will maintain statistical reports on the number of security threats identified and the actions taken as a result of the periodic security checks. Registry Operator will maintain these reports for the term of the Agreement unless a shorter period is required by law or approved by ICANN, and will provide them to ICANN upon request.

You’ll notice that the language is purposefully vague on how registries should carry out these checks.
ICANN said it will convene a task force or GNSO policy development process to figure out the precise details, enabling new gTLD applicants to enter into contracts as soon as possible.
It means, of course, that applicants could wind up signing contracts without being fully apprised of the cost implications. Fighting abuse costs money.
There are dozens of ways to scan TLDs for abusive behavior, but the most comprehensive ones are commercial services.
ICM Registry, for example, decided to pay Intel/McAfee millions of dollars — a dollar or two per domain, I believe — for it to run daily malware scans of the entire .xxx zone.
More recently, Directi’s .PW Registry chose to sign up to Architelos’ NameSentry service to monitor abuse in its newly relaunched ccTLD.
There’s going to be a fight about the implementation details, but one way or the other the PIC would make registries scan their zones for abuse.
What the PIC does not state, and where it may face queries from the GAC as a result, is what registries must do when they find abusive behavior in their gTLDs. There’s no mention of mandatory domain name suspension, for example.
But in an annex to Tuesday’s resolution, ICANN’s NGPC said the “consequences” part of the GAC advice would be addressed as part of the same future technical implementation discussions.
In summary, the NGPC wants registries to be contractually obliged to contractually oblige their registrars to contractually oblige their registrants to not do bad stuff, but there are not yet any obligations relating to the consequences, to registrants, of ignoring these rules.
This week’s resolutions are the second big batch of decisions ICANN has taken regarding the GAC’s Beijing communique.
Earlier this month, it accepted some of the GAC’s direct advice related to certain specific gTLDs it has a problem with, the RAA and intergovernmental organizations and pretended to accept other advice related to community objections.
The NGPC has yet to address the egregiously incompetent “Category 1” GAC advice, which was the subject of a public comment period.

Is the ICC ripping off new gTLD objectors?

New gTLD applicants have reportedly complained to ICANN about the unexpectedly high cost of dealing with objections.
The International Chamber of Commerce has apparently been quoting objectors prices as high as €150,000 for a three-person panel to handle a formal community objection.
At $195,000, that’s almost $10,000 more than the original ICANN application fee.
Because Community Objections run on a loser-pays basis, the stakes are high indeed. An applicant could lose its application, most of its application fee, and still have to pay the objector’s fees.
The complaints emerged during a session with ICANN new gTLD program head Christine Willett at a meeting in Brussels earlier this week, according to consultant and occasional DI contributor Stephane Van Gelder.
Writing on the NetNames blog yesterday, Van Gelder quoted Willett as saying:

We are aware that ICC fees are more than people were expecting. Some applicants have been quoted around 50,000 Euros for a one expert panel and 150,000 Euros for a three expert panel. Although in the same order of magnitude as the cost estimate listed in the applicant guidebook, they are still higher. In some cases, significantly higher. In fact, we had one applicant write to us last week saying that their quoted expert fee was more than the ICANN fees for submitting their application in the first place! So we have reached out to ICC and are hoping they can provide some rationale for the costs they are quoting.

The Applicant Guidebook does not detail the fees charged by dispute resolution providers, but materials provided by the ICC (pdf) say that its admin costs are €12,000 and €17,000 for a one-person and three-person panel respectively. The hourly rate for the panelists is €450, it says.
With a €150,000 total cost, back of the envelope doodling suggests that each panelist expects to spend around 100 hours working on each case — over two weeks at seven hours a day.
By contrast, the World Intellectual Property Organization’s fees for handling Legal Rights Objections with a three-person panel start at $23,000 ($3,000 for WIPO, $20,000 for the panelists).

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.

Tweets from Chehade’s keynote in Brussels today

ICANN CEO Fadi Chehade gave a keynote address at a meeting of European stakeholders in Brussels today.
While the meeting is evidently not accessible remotely, some interesting tweets and photos may give a flavor of the event and his remarks. I can’t vouch for the accuracy of the quotes.

#icann ceo giving keynote at Brussels meeting right now. pic.twitter.com/l7idKI5WxR

— Stephane Van Gelder (@stephvg) June 25, 2013

Fadi Chehadé at #ICANN #Brussels briefing: we need to birth new TLDs by the autumn, they are cutting oxygen from ICANN & making ICANN sick

— Caroline Greer (@CarolineGreer) June 25, 2013

Fadi Chehade at #ICANN CENTR meeting: "New #gTLD Registries are our licensees: our clients are registrants".

— StartingDot (@StartingDot) June 25, 2013

#icann Brussels briefing Fadi addressing The european stakeholders pic.twitter.com/Wjei3vlvxU

— Andrea Beccalli (@becktweet) June 25, 2013

F Chehadé: Europe can play a unique, moderating role in #InternetGovernance, standing between extreme national positions #ICANN

— Caroline Greer (@CarolineGreer) June 25, 2013

Fadi Chehadé: "There is no way one government, not even the US, can control the Internet" #ICANN Briefing Brussels

— Ana Olmos (@anaolmos) June 25, 2013

"We are committed to getting #newgtlds out by this fall!" Fadi Chehadé #icann CEO today in Brussels.

— Stephane Van Gelder (@stephvg) June 25, 2013

Fadi Chehadé: "Registrants are #ICANN's customers; not registrars, not registries" –> Focus on #users

— Ana Olmos (@anaolmos) June 25, 2013

Whois headed for the scrap heap in “paradigm shift”

Whois’ days are numbered.
An “Expert Working Group” assembled by ICANN CEO Fadi Chehade has proposed that the old Whois service we all love to hate be scrapped entirely and replaced with something (possibly) better.
After several months of deliberations the EWG today issued an audacious set of preliminary recommendations that would completely overhaul the current system.
Registrants’ privacy might be better protected under the new model, and parties accessing Whois data would for the first time have obligations to use it responsibly.
There’d also be a greater degree of data validation than we have with today’s Whois, which may appease law enforcement and intellectual property interests.
The new concept may also reduce costs for registries and registrars by eliminating existing Whois service obligations.
The EWG said in its report:

After working through a broad array of use cases, and the myriad of issues they raised, the EWG concluded that today’s WHOIS model—giving every user the same anonymous public access to (too often inaccurate) gTLD registration data—should be abandoned.
Instead, the EWG recommends a paradigm shift whereby gTLD registration data is collected, validated and disclosed for permissible purposes only, with some data elements being accessible only to authenticated requestors that are then held accountable for appropriate use.

The acronym being proposed is ARDS, for Aggregated Registration Data Services.
For the first time, gTLD registrant data would be centralized and maintained by a single authority — likely a company contracted by ICANN — instead of today’s mish-mash of registries and registrars.
The ARDS provider would store frequently cached copies of Whois records provided by registries and registrars, and would be responsible for validating it and handling accuracy complaints.
To do a Whois look-up, you’d need access credentials for the ARDS database. It seems likely that different levels of access would be available depending on the user’s role.
Law enforcement could get no-holds-barred access, for example, while regular internet users might not be able to see home addresses (my example, not the EWG’s).
Credentialing users may go some way to preventing Whois-related spam.
A centralized service would also provide users with a single, more reliable and uniform, source of registrant data.
Registrars and registries would no longer have to provide Whois over port 43 or the web, potentially realizing cost savings as a result, the EWG said.
For those concerned about privacy, the EWG proposes two levels of protection:

• An Enhanced Protected Registration Service for general personal data privacy needs; and
• A Maximum Protected Registration Service that offers Secured Protected Credentials Service for At-Risk, Free-Speech uses.

If I understand the latter category correctly, the level privacy protection could even trump requests for registrant data from law enforcement. This could be critical in cases of, for example, anti-governmental speech in repressive regimes.
The proposed model would not necessarily kill off existing privacy/proxy services, but such services would come under a greater degree of ICANN regulation than they are today.
It appears that there’s a lot to like about the EWG’s concepts, regardless of your role.
It is very complex, however. The devil, as always, will be in the details. ARDS is going to need a lot of careful consideration to get right.
But it’s a thought-provoking breakthrough in the age-old Whois debate, all the more remarkable for being thrown together, apparently through a consensus of group members, in such a short space of time.
The EWG’s very existence is somewhat controversial; some say it’s an example of Chehade trying to circumvent standard procedures. But it so far carries no official weight in the ICANN policy-making process.
Its initial report is currently open for public comment either via email direct to the group or planned webinars. After it is finalized it will be submitted to the ICANN board of directors.
The board would then thrown the recommendations at the Generic Names Supporting Organization for a formal Policy Development Process, which would create a consensus policy applicable to all registries and registrars.
With all that in mind, it’s likely to be a few years before (and if) the new model becomes a reality.

US and EU could be victims of ICANN power shift

Europe and North America could see an influx of new nations under changes to the way ICANN defines geographic regions, potentially diluting the influence of EU states and the USA.
Europe could soon be joined by several Middle Eastern countries, while North America could be expanded to encapsulate Caribbean nations.
The changes, which would alter the composition of key ICANN decision-making bodies, could come as a result of the Geographic Regions Review Working Group, which delivered a draft final set of recommendations over the weekend, after four years of deliberations.
Among its conclusions, the WG found that there are “anomalies” in how ICANN handles regions and that countries should have the right to move to a different region if they choose.
ICANN has long divided the world into five regions (North America, Europe, Asia-Pacific, Africa and Latin America and the Caribbean) along unique and sometimes unusual lines.
The regions are used to ensure diversity in the make-up of its board of directors, among other things. ICANN’s bylaws state that no region may have more than five directors on the board.
The working group was tasked with figuring out whether the current geographic regions made sense, whether there should more or fewer regions, and whether some countries should change regions.
ICANN’s regions as they stand today have some weirdness.
Cyprus, for example, is categorized as being in Asia-Pacific, despite it floating in the Mediterranean, being a member of the European Union and largely speaking Greek.
Mexico and most Caribbean islands are in Latin America, as far as ICANN is concerned, leaving the US, Canada and US overseas territories as the North American region’s only eight members.
Then there are anomalies relating to “mother countries”. The Falkland Islands, for example, is physically found in the Latin American region but is classified as European by ICANN because it’s a British territory.
Under changes proposed by the working group, many of these anomalies could slowly shake themselves out.
But the working group decided against forcing nations from one region into another (with an opt-out) as had been proposed in 2011. Instead, countries could choose to change regions.
This is the key recommendation:

The Working Group recommends that the Board direct Staff to prepare and maintain ICANN’s own unique organizational table that clearly shows the allocation of countries and territories (as defined by ISO 3166) to its existing five Geographic Regions. The initial allocation should reflect the status quo of the current assignments. However, Staff should also develop and implement a process to permit stakeholder communities in countries or territories to pursue, if they wish, re-assignment to a geographic region that they consider to be more appropriate for their jurisdiction.

While this looks like a free-for-all — there doesn’t seem to be anything stopping France moving to Africa, for example — in practice the working group seems to be expecting certain shifts.
For example, some Middle Eastern nations had expressed an interest in moving from Asia-Pacific to Europe, while some Caribbean island states apparently feel more aligned with North America.
Assuming the recommendations are taken on board and regional switches are approved on a case-by-case basis, both North America and Europe could soon swell to include new countries.
The working group’s recommendations would avoid the seismic shifts previously envisaged, however.
There will be no separate region for Arab states, which had been requested. Nor will there be any forced move of territories into regions different from their mother countries (which would have proved politically difficult in the case of disputed land masses such as the Falklands).
While the report is being called “final” it has been presented for public review until October, after which it will be formally sent to ICANN’s board.

ICANN hires former ARI exec to head gTLD relations

Krista Papac, formerly chief strategy officer with AusRegistry and ARI Registry Services, has joined ICANN as gTLD registry services director.
It appears to be a newly created job title at ICANN, though it sounds a little similar to the gTLD “liaison” role vacated by Craig Schwartz a couple of years ago.
Papac, a familiar face to many in the ICANN community, has been in the industry for over a decade.
Prior to ARI, which she left to become a consultant last September, she had stints at MarkMonitor, Verisign and Iron Mountain. She joined ICANN last month.
ICANN is hiring like crazy at the moment as it simultaneously gears up for the launch of new gTLDs and executes on CEO Fadi Chehade’s ambitious drive to simultaneously professionalize and globalize the organization.

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.

Atallah shunted sideways in ICANN exec rejig

ICANN has a new COO, after incumbent Akram Atallah was moved into a new role as president of a new Generic Domains Division.
The organization has hired Susanna Bennett to replace him. She is currently with Jazz Technologies and Jazz Semiconductor, where she is CFO and VP of human resources.
The new Generic Domains Division will “focus on generic domain operations, domain name industry engagement and web services for the community” ICANN said in a press release.
Bennett is the second person to be hired from Jazz in as many months. While it wasn’t announced, Jazz alum Allen Grogan joined the legal department last month as chief contracting counsel.
Before Jazz, Grogan worked for CoreObjects, Viacore and Vocado, three of the companies that CEO Fadi Chehade led before joining ICANN.
Atallah and Chehade recently came under fire from an anonymous ICANN staffer, claiming that they’ve been causing division among employees by hiring their friends and former co-workers.
More recipients of some reshuffling today include VP of stakeholder engagement for North America Jamie Hedlund, who is becoming a “special advisor” to Chehade.
Fellow Beckstrom-era hire Christopher Mondini is moving from VP of business engagement to VP of stakeholder engagement for North America and global business engagement.
Nora Abusitta, hired in January, will become VP of public responsibility programs. She’s currently the senior director of inter-governmental development.