Council of Europe has Whois privacy concerns too

The Council of Europe has expressed concern about the privacy ramifications of ICANN’s proposed changes to Whois requirements in the Registrar Accreditation Agreement.
In a letter this week (pdf), the Bureau of the Consultative Committee of the Convention for the Protection of Individuals with regard to Personal Data (T-PD) said:

The Bureau of the T-PD took note of the position of the Article 29 Data Protection Working Parking in its comments of 26 September 2012 on the data protection impact of the revision of these arrangements concerning accuracy and data retention of the WHOIS data and fully shares the concern raised.
The Bureau of the T-PD is convinced of the importance of ensuring that appropriate consideration be given in the ICANN context to the relevant European and international privacy standards

The letter was sent in response to outreach from ICANN’s Non-Commercial Users Constituency.
The Article 29 letter referenced said that EU registrars risked breaking the law if they implemented ICANN’s proposed data retention requirements.
Earlier today, we reported on ICANN’s response, which proposes an opt-out for registrars based in the EU, but we noted that registrars elsewhere are unlikely to dig a two-tier RAA.

New gTLD winners will be decided by lottery after all

ICANN will use a lottery to decide the order in which to process new gTLD applications, after a surprising U-turn.
ICANN this morning published a proposal that would prioritize applications based on a $100-a-ticket prize draw that would run in early December.
The results of the draw would be used to sequence applications for Initial Evaluation and, if successful, contract negotiations, pre-delegation testing and eventual delegation.
ICANN says the draw would give it an exemption to California’s anti-lottery laws, which was the primary reason it has so far resisted chance-based solutions to the batching/sequencing problem.
It’s applied for a special “fundraising drawings” license based on its non-profit status, which it expects to be granted before the end of November.
The license appears to have certain restrictions that confuse matters for applicants — they won’t be able to buy their tickets over the internet.
They’ll have to pay, in-person, for a paper ticket. But ICANN says that it can supply proxies for applicants at no cost, eliminating the need to fly a representative to California.
The whole process will be manual, so there’s little risk of an embarrassing Digital Archery-style snafu.
Applications for internationalized domain names would be given priority.
The draw would be run at some point between December 4 and 15.
Under the proposal, the results of Initial Evaluation would start to be released from March next year, starting with IDNs, at a rate of about 150 per week.
ICANN has also decided to extend the period for official objections to March 13, 2013, two months more than the current plan, due to requests for more time from potential objectors.
But the extension is unlikely to appease these objectors, which will still have to file objections before they know whether applications have passed Initial Evaluation, wasting money.
New gTLD applicants that pass Initial Evaluation, are not in contention and have no objections will have the option to immediately sign the standard registry contract.
Applicants wishing to negotiate their contracts will be processed according to their draw number.
However, no contracts will be signed before the ICANN meeting in Beijing next April. This is because the Governmental Advisory Committee does not expect to issue its formal Advice on applications before then.
ICANN expects to sign contracts and do pre-delegation testing at a rate of about 20 per week, which is roughly within the maximum 1,000-per-year delegation rate it has committed to.
The effect of this is that the first new gTLDs are expected to go live in the DNS root in the second quarter of 2013, rather than the third quarter.
I believe most of the proposals will be welcomed by most applicants. A lottery was always the most favored solution.
There will be some criticisms, however.
There does not appear to be a method envisaged for swapping slots, for example, so portfolio applicants probably won’t get to choose which of their gTLDs is delegated first.
The whole proposal is open for public comment here.

Strickling urges ICANN to bolster trademark protection for all gTLDs

US Department of Commerce assistant secretary Larry Strickling has called on ICANN to create more trademark protection mechanisms across new and existing gTLDs.
In a letter to ICANN yesterday, Strickling, head of the National Telecommunications and Information Administration, also expressed concerned about the slow progress on implementing the Uniform Rapid Suspension and Trademark Clearinghouse systems.
The URS has run into a problem because no provider ICANN has approached to date wants to run it for the $300 to $500 filing fee.
Meanwhile, the way ICANN plans to implement the Clearinghouse has been hit by criticism from registries, registrars and new gTLD applicants, many of which believe it is too inflexible.
Strickling told ICANN that “it is imperative that all fees associated with the URS remain low”, and suggested that cost savings could be achieved through integration with the Clearinghouse.
But he also called for stronger trademark protections in general, above and beyond what the ICANN community has already decided to implement.

Industry stakeholders have presented a variety of suggestions to reduce the cost of defensive registrations (e.g. trademark blocking mechanisms) and others have suggested enhanced safeguards for new gTLDs targeted at creative sectors.
While not taking a position in support of any specific proposal at this time, NTIA does believes that ICANN should continue and open and transparent dialogue between all actors in order to find solutions to these issues which have come into clearer focus since the release of the 1,930 applications this past June.

The letter was sent due to NTIA’s meeting with the 30-odd so-called “brand summit” companies — almost all household names — last month.
Among other things, they want the Clearinghouse to alert them whenever somebody registers a domain name containing their trademarks, instead of just exact matches.
The counter-argument from the domain industry is that such a proposal would create millions of false positives, due to dictionary words, run-ons and acronyms.
An example recently aired by attorney John Berryhill is the Yellow Pages trademark on “YP”, which would be triggered in the Clearinghouse whenever PayPal registered its brand as a domain name.
The brand summit companies also want a blanket trademark blocking system based on ICM Registry’s .xxx Sunrise B process, under which they pay a one-off fee to block their mark in a gTLD forever.
Opponents point out that such systems may be appropriate in single TLDs, but problems could arise when applied to all TLDs. Different companies have rights to the same strings in different fields.
Strickling appears to be aware of the problems that could be caused if the trademark community gets everything it wants. In the letter, he urges mutual understanding, writing:

Whatever process ICANN follows, trademark holders should provide clear, fact-based descriptions of the challenges they encounter in the global DNS and registries and registrars should clarify issues relating to the technical feasibility and costs of implementing any additional protections.

It’s a nice idea, but attempts to reach a sane solution have so far been unsuccessful.
Melbourne IT’s HARM proposal, which would give special rights to particularly vulnerable brands, was shot down by trademark owners as too limited during a meeting in Washington DC last month.

IP interests should join the Trademark Clearinghouse meeting on Tuesday

ICANN is to hold a webcast and teleconference next week to discuss alternative models for the new gTLDs Trademark Clearinghouse.
It will be the last time the community gets to discuss the issue before ICANN 45 kicks off in Toronto next weekend.
Neustar, ARI Registry Services, Verisign and Demand Media have jointly proposed two models for the mandatory new gTLD Sunrise period and Trademark Claims service that differ from ICANN’s.
While the proposals are enjoying general murmurs of support from the domain name industry side of the community, the trademark lobby has yet to have any substantial presence in the talks.
Most of the discussions to date have been hindered by this lack of input, and by a frustrating lack of hard feedback from ICANN and its two contractors, IBM and Deloitte.
Tuesday’s meeting might be a good opportunity for members of the Business Constituency and IP Constituency to brush up on the issues before Toronto.
The meeting will start at 9am US Eastern time, according to Neustar vice president Jeff Neuman, who provided the following information:

The documents are posted at:
http://newgtlds.icann.org/en/about/trademark-clearinghouse/sunrise-model-26sep12-en.pdf
http://newgtlds.icann.org/en/about/trademark-clearinghouse/claims-model-26sep12-en.pdf
http://newgtlds.icann.org/en/about/trademark-clearinghouse/model-issues-26sep12-en.pdf
The call-in information is:
Conference ID: 93759
Dial-in numbers for each country: http://www.adigo.com/icann/
Adobe Connect Room at: http://icann.adobeconnect.com/tmch/

No more Club Med? America and Africa would lose out under ICANN meetings overhaul

ICANN is having a big rethink about how it decides where to drag the community to on its thrice-yearly meetings.
A proposal published tonight would reduce the number of cities it visits between 2014 and 2016 from nine to seven, meaning Africa and North America would both lose a meeting.
ICANN says its meetings are getting bigger and it’s getting harder to find suitable locations that it hasn’t already been to:

As ICANN Meetings have increased in size and scope, the number of facilities capable of hosting an ICANN Meeting has decreased considerably. In addition, the number of facilities that actually meet all of the established meeting location selection criteria is very limited.
ICANN Meetings have already been held in more than 40 different cities worldwide. It is becoming increasingly difficult to identify new hosts, as well as new host cities with the appropriate facilities.

Under the new proposal, ICANN would pre-select conference centers worldwide that are big enough, are easy to get to, have decent internet access, have plenty of nearby hotels and so forth.
It reckons it could save money by negotiating multi-year deals with such venues, but that this would mean a reduced number of locations.
Under ICANN’s current plan, 2014-2016 would see two meetings in Europe, two in North America, two in Asia-Pacific, two in Africa, and one in Latin America. Each would be in a different city.
The new plan would increase Europe and Asia-Pacific to three meetings each, but in four countries instead of six. Africa and North America would both lose a meeting. Latin America would still have one meeting.
ICANN wants to know what you think about this idea. I can see it being divisive along predictable lines.

GNSO Chair contest is Rickert v Robinson

Two candidates for the soon-be-vacated chair of the Generic Names Supporting Organization have been put forward.
Jonathan Robinson has been nominated by the contracted parties house (registries and registrars), while Thomas Rickert has been put forward by the non-contracted parties.
Rickert, an IP lawyer, is director of names and numbers at Eco, a German internet industry association. He was appointed to the GNSO Council by the ICANN Nominating Committee last year.
UK-based Robinson is a longstanding member of the domain name industry and a registries rep on the Council. He’s a director of Afilias and runs IProta, the startup that managed ICM Registry’s sunrise last year.
The two men will be voted on by the GNSO Council before the chairman’s seat, currently occupied by Stephane Van Gelder, is vacated at the end of the Toronto meeting next month.
Van Gelder is coming to the end of his term on the Council after two years in the chair, hence the need for a replacement.

NIC Argentina offered prizes to object to .patagonia

Argentinian ccTLD manager NIC Argentina offered its Twitter followers prizes if they commented on the controversial .patagonia gTLD application.
Earlier this week, the company tweeted a few times:

Mandanos el ID de tu comentario en ICANN con #NoAPuntoPatagonia y participá por uno de los 20 kits de calcos de @nicargentina

— Nic Argentina (.ar) (@nicargentina) September 25, 2012

My Spanish isn’t great, but this appears to be a prize draw for “kits de calcos” — stickers or decals of some kind — for followers submitting comments against .patagonia.
The .patagonia application, a dot-brand bid filed by a clothing retailer, has caused a huge ruckus in Argentina, where Patagonia is a large geographic region.
The application has received over 1,500 comments to date, pretty much all of which are from disgruntled Latin Americans.

European privacy watchdog says ICANN’s Whois demands are “unlawful”

European Union privacy officials have told ICANN that it risks forcing registrars to break the law by placing “excessive” demands on Whois accuracy.
In a letter to ICANN yesterday, the Article 29 Working Party said that two key areas in the proposed next version of the Registrar Accreditation Agreement are problematic.
It’s bothered by ICANN’s attempt to make registrars retain data about their customers for up to two years after registration, and by the idea that registrars should re-verify contact data every year.
These were among the requests made by law enforcement, backed up by the Governmental Advisory Committee, that ICANN has been trying to negotiate into the RAA for almost a year.
The letter (pdf) reads:

The Working Party finds the proposed new requirement to re-verify both the telephone number and the e-mail address and publish these contact details in the publicly accessible WHOIS database excessive and therefore unlawful. Because ICANN is not addressing the root of the problem, the proposed solution is a disproportionate infringement of the right to protection of personal data.

The “root cause” points to a much deeper concern the Working Party has.
Whois was designed to help people find technical and operational contacts for domain names, it argues. Just because it has other uses — such as tracking down bad guys — that doesn’t excuse infringing on privacy.

The problem of inaccurate contact details in the WHOIS database cannot be solved without addressing the root of the problem: the unlimited public accessibility of private contact details in the WHOIS database.

It’s good news for registrars that were worried about the cost implications of implementing a new, more stringent RAA.
But it’s possible that ICANN will impose the new requirements anyway, giving European registrars an opt-out in order to comply with local laws.
The letter is potentially embarrassing for the GAC, which seemed to take offense at the Prague meeting this June when it was suggested that law enforcement’s recommendations were not being balanced with the views of privacy watchdogs.
During a June 26 session between the GAC and the ICANN board, Australia’s GAC rep said:

I don’t come here as an advocate for law enforcement only. I come here with an Australian government position, and the Australian government has privacy laws. So you can be sure that from a GAC point of view or certainly from my point of view that in my positions, those two issues have been balanced.

That view was echoed during the same session by the European Commission and the US and came across generally like a common GAC position.
The Article 29 Working Party is an advisory body set up by the EU in 1995. It’s independent of the Commission, but it comprises one representative from the data privacy watchdogs in each EU state.

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.

ICANN publishes RFI for URS provider

ICANN has issued an open call for dispute resolution providers interested in running its Uniform Rapid Suspension system.
In a request for information published last night, ICANN says it expects to pick a provider or providers by February 28, 2013.
If you’re not already running a dispute resolution service at scale there seems to be little point in applying. The RFI states that respondents must, at a minimum:

Have a track record in competently handling clerical aspects of Alternative Dispute Resolution or UDRP proceedings
…
Have a team of globally diverse and highly qualified neutrals, with experience handling UDRP or similar complaints, to serve as panelists.

With that in mind, will the RFI help sort out the problems with the URS?
What ICANN needs right now is a provider happy to administer proceedings for $300 to $500 per case.
ICANN has already asked WIPO and the National Arbitration Forum for their pricing expectations and neither apparently thinks they can do it much cheaper than UDRP. Hence the RFI.
Could the Czech Arbitration Court be in with a shot?
CAC already has UDRP experience and a stable of trademark experts on hand, and some say its level of automation is superior to — and presumably more cost-efficient than — both WIPO and NAF.