ICANN directors ruled out of CEO search

ICANN’s directors have been barred from applying for the soon-to-be-vacated CEO position.
The board elected a panel of directors to get the CEO search underway last Tuesday, but noted:

no current or incoming member of the Board or liaisons may be considered as a candidate for the role of the CEO for the current CEO Selection process.

A replacement for Rod Beckstrom, who announced that he will step down when his contract expires next June, will now be overseen by a special CEO Search Process Management Work Committee.
The committee will comprise: Steve Crocker, Bertrand de La Chapelle, Erika Mann Chris Disspain, Cherine Chalaby, Ray Plzak and R. Ramaraj. George Sadowsky will chair.
I had previously put at least three of those on my speculative list of “insiders” who could conceivably apply for the CEO’s job.

Google loses Goggle.com cybersquatting complaint

File this one under: “Good for UDRP, terrible for internet users.”
Google has managed to lose a cybersquatting complaint over the domain name goggle.com, after a National Arbitration Forum panel declined to consider the case.
Goggle.com, like so many other typos of the world’s most-popular sites, is currently being used to get people to sign up to expensive text messaging services via bogus surveys and competitions.
As Domain Name Wire reported when the complaint was filed, up until recently the site was using a confusingly similar style to Google’s familiar look and feel.
It’s got bad faith written all over it.
But “goggle” it is also a genuine English word.
And it turns out that the previous owner of goggle.com, Knowledge Associates, had entered into a “co-existence relationship” with Google that enabled it to operate the domain without fear of litigation.
The current owner was able to present NAF with documentation showing that this right may have been transferred when he bought the domain.
So the three-person NAF panel decided not to consider the complaint, concluding: “this case is foremost a business and/or contractual dispute between two companies that falls outside the scope of the Policy.”
The panel wrote:

Does the Co-existence Agreement apply to the disputed domain names? Does Respondent stand in the shoes of the original registrant? Does the consent of Complainant extend in time to the current actions of Respondent and in person to the Respondent? Has the Respondent complied with the obligations of the original registrant? Does the “no public statements” provision in the Co-existence Agreement prohibit its disclosure or use as a defense by Respondent?
These are factual and legal issues that go far beyond the scope of the Policy.
These are factual and legal issues that must be resolved before any consideration of confusing similarity, legitimate rights and interest, and bad faith under the Policy can be made.

This means that the current registrant gets to keep the domain, and to keep making cash from what in the vast majority of cases are likely to be clumsy typists.
Google now of course can either decide to pay off the registrant, or take him to court.
The registrant, David Csumrik, was represented by Zak Muscovitch.

VeriSign’s .com takedown power grab causing controversy

VeriSign’s request for a wide-ranging set of powers that would enable it to shut down .com and .net domain names that are suspected of abuse is already attracting criticism.
The proposals came in a Registry Services Evaluation Process request to ICANN that I reported on for The Register this morning.
It’s asking (pdf) to be able to create a new anti-abuse policy that would refocus many of the controls currently in the hands of registrars to the registry level instead.
The policy would “allow the denial, cancellation or transfer” of any VeriSign-managed domain if any any of these conditions were triggered:

(a) to protect the integrity, security and stability of the DNS;
(b) to comply with any applicable court orders, laws, government rules or requirements, requests of law enforcement or other governmental or quasi-governmental agency, or any dispute resolution process;
(c) to avoid any liability, civil or criminal, on the part of Verisign, as well as its affiliates, subsidiaries, officers, directors, and employees;
(d) per the terms of the registration agreement,
(e) to respond to or protect against any form of malware (defined to include, without limitation, malicious code or software that might affect the operation of the Internet),
(f) to comply with specifications adopted by any industry group generally recognized as authoritative with respect to the Internet (e.g., RFCs),
(g) to correct mistakes made by Verisign or any Registrar in connection with a domain name registration, or
(h) for the non-payment of fees to Verisign. Verisign also reserves the right to place upon registry lock, hold or similar status a domain name during resolution of a dispute;

As you can see, that’s a pretty broad range of justifications.
Notably, it would enable a domain to be canceled or transferred at the “requests of law enforcement or other governmental or quasi-governmental agency”, which would seem to circumvent the current practice of a court order being obtained before a domain is seized.
The question of what constitutes a “quasi-governmental agency” is also interesting. Is ICANN itself such a thing?
The policy would also enable a take-down “to avoid any liability, civil or criminal”, which seems to be just begging for VeriSign to be named spuriously in commercial lawsuits between .com registrants.
The RSEP also suggests that VeriSign plans to extend its hand of friendship to law enforcement agencies from outside the US:

Pilots with European Law Enforcement, Government CERTS and Registrars are planned, and other global test pilots will follow, to ensure global collaboration in the continuing development of the procedures.

Today, US agencies can get court orders instructing VeriSign to hand over domains. While imposing US law on .com owners from other countries is controversial, at least overseas registrants know where they stand.
Now VeriSign is talking about cooperating with European law enforcement agencies too.
At the risk of getting dangerously close to invoking Godwin’s Law, this brings us back to an old jurisdictional problem – what if the French police demand the seizure of a .com site selling Nazi memorabilia, which is illegal in France but legal in the US, for example?
Taking it a step further, what if VeriSign starts entertaining takedown requests from some of the world’s least pleasant theocracies, banana republics and dictatorships?
Half of .com could disappear overnight.
Since VeriSign has a business to run, that’s obviously not going to happen. So the company is going to have to draw a line somewhere, separating criminality from legitimate behavior and free speech.
I’m speculating wildly here, of course, but the RSEP doesn’t contain nearly enough detailed information about VeriSign’s proposed procedures to make a more informed analysis.
VeriSign knows what it is proposing is controversial. The RSEP says:

Registrants may be concerned about an improper takedown of a legitimate website. Verisign will be offering a protest procedure to support restoring a domain name to the zone.

The proposals have been made following many months of discussions between registries, registrars, law enforcement agencies and other community stakeholders.
It’s not entirely clear from VeriSign’s RSEP, which sometimes confusingly conflates the abuse policy with a separate proposed malware scanning service, how a takedown notice would be processed.
One likely reading is that VeriSign would act almost like a centralized clearinghouse for takedown requests, forwarding them to individual registrars for enforcement.
The registrars could be obliged by the terms of an amended Registry-Registrar Agreement to follow whatever process had been laid down.
There seems to be some concern in the ICANN community about this.
ICANN senior VP of stakeholder relations Kurt Pritz recently sent a document to PIR’s David Maher and Oversee.net’s Mason Cole outlining the procedure for amending the RRA.
The flowchart (pdf) describes a trilateral negotiation between the registry proposing the change, the Registrars Stakeholder Group and ICANN, with the ICANN board having the ultimate decision-making authority.
However this proceeds through ICANN, it’s going to cause some heated community debate.

ICANN hunts for anti-cybersquatting database provider

ICANN is in the process of looking for an operator for the Trademark Clearinghouse that will play a crucial brand protection role in new top-level domains.
An RFI published last week says that ICANN is looking for an exclusive contractor, but that it may consider splitting the deal between two companies — one to provide trademark validation services and the other to manage the database.
The TMCH is basically a big database of validated trademarks that registrars/registries will have to integrate with. It will be an integral part of any new gTLD launch.
Registries are obliged by ICANN rules to hold a sunrise period and a Trademark Claims service when they go live, both of which leverage the clearinghouse’s services.
Rather than having to submit proof of trademark rights to each gTLD operator, brand owners will only have to be validated by the TMCH in order to be pre-validated by all gTLDs.
I estimate that the contract is worth a few million dollars a year, minimum.
If the ongoing .xxx sunrise period is any guide, we might be looking at a database of some 30,000 to 40,000 trademark registrations in the first year of the TMCH.
One potential TMCH provider currently charges $100 for the initial first-year validation and a recurring $70 for re-validation in subsequent years.
ICANN has not ruled out the successful TMCH provider selling add-on services too.
But the organization also seems to be at pains to ensure that the clearinghouse is not seen as another gouge on the trademark industry.
The RFI contains questions such as: “How can it be assured that you will not maximize your registrations at the expense of security, quality, and technical and operational excellence?”
The two providers that immediately spring to mind as RFI respondents are IProta and the Clearinghouse for Intellectual Property (CHIP).
Belgium-based CHIP arguably has the most institutional experience. It’s handled sunrise periods for Somalia’s .so, the .asia IDN sunrise, a few pseudo-gTLD initiatives from the likes of CentralNIC (de.com, us.org, etc), and is signed up to do the same for .sx.
Its chief architect, Bart Lieben of the law firm Crowell & Moring, is also well-known in the industry for his work on several sunrise period policies.
IProta is a newer company, founded in London this year by Jonathan Robinson, an industry veteran best known for co-founding corporate domain registrar Group NBT.
The company is currently managing the .xxx sunrise period, which is believed to be the highest-volume launch since .eu in late 2005.
“IPRota is very well positioned on the basis of our recent and past experience so I think we almost certainly will go ahead and respond,” Robinson confirmed to DI.
Domain name registries and registrars could conceivably also apply, based on their experience handling high-volume transactional databases and their familiarity with the EPP protocol.
ICANN sees the potential for conflicts of interest — its RFI anticipates that any already-contracted party applying to run the TMCH will have to impose a Chinese wall to reduce that risk.
The RFI is open for responses until November 25. ICANN intends to name its selected provider February 14, a month after it starts accepting new gTLD applications.
This is another reason, in my view, why submitting an application in January may not be the smartest move in the world.

ICANN to hire conflict of interest experts

ICANN is to bring in ethics experts to advise it on its conflicts of interest policy, addressing the ongoing controversy over its former chairman’s move to the domain industry.
The organization plans to “engage an external firm with expertise in advising on ethical issues”, according to the minutes of a September 15 meeting of its Board Governance Committee.
The consultants will be tasked with helping to “develop an ICANN Ethics Regime or set of Guidelines for the Board, the staff and the community.”
ICANN has been faced recently with calls to impose post-employment restrictions on board members and staff, in order to prevent a “revolving door” between it and the industry it essentially regulates.
This follows former chairman Peter Dengate Thrush’s move to new gTLD applicant Minds + Machines just a few weeks after voting to approve the new gTLD program.
Senator Ron Wyden and the Association of National Advertisers are among those making the call, and the US Department of Commerce, which oversees ICANN, appears to have heard it.
But as I reported earlier in the week, it may actually be illegal for ICANN, as a California corporation, to contractually ban employees from joining domain name companies after they quit.
However, the BGC has other ideas about how to strengthen ethics without imposing these potentially problematic employment restrictions.
It’s now talking about a ethics policy with “disclosure and abstention requirements” for directors “surrounding future interests or potential future interests”.
While the policy has yet to be written, one can imagine a scenario in which an ICANN director would be prevented from voting on a policy that would be likely to enrich them in a future job.
Cherine Chalaby, Bill Graham and Ray Plzak are the BGC members who will be leading the board discussions, which are expected to continue in Dakar later this month.
The ethics issue was first raised publicly by ICANN president Rod Beckstrom during his opening address at the Singapore meeting in June — before the new gTLD vote and before Dengate Thrush’s departure.

Full UDRP reform unlikely until 2017

The often-criticized Uniform Dispute Resolution Policy is unlikely to see fundamental changes for at least five years, following an ICANN review published yesterday.
ICANN has recommended, after talking to the community, that full UDRP reform should be put on the back-burner until at least a year and a half after the first new gTLDs go live.
Since that isn’t likely to happen until early 2013, ICANN is unlikely to address the subject until mid-2014. The chances of a revamped UDRP going live before 2017 are therefore slim.
The new Final Issue Report (pdf), prepared by ICANN staff and sent to the GNSO Council yesterday, says:

Staff recommends that a [Policy Development Process] on the UDRP not be initiated at this time. Staff recommends that a PDP be delayed until after the New gTLD Uniform Rapid Suspension System (URS) has been in operation for at least eighteen months. Doing so would allow the policy process to be informed by data regarding the effectiveness of the URS, which was modelled on the UDRP, to address the problem of cybersquatting.

The report was informed by a number of stakeholder webinars and questionnaires sent to UDRP providers earlier this year, as well as a round of public comments.
It notes that UDRP has remained the same since October 1999, but that it still has proved flexible enough to react to changes in the domain industry and cybersquatting tactics.
The report states:

After carefully evaluating the issues and concerns expressed by the ICANN community regarding the UDRP, Staff has concluded that many relate to process issues associated with the implementation of the UDRP, rather than the language of the policy itself.

In the absence of root-and-branch reform, ICANN has suggested the formation of an “expert panel” to investigate whether smaller changes could be made to the periphery of the UDRP.
It could, for example, look at amendments to the Supplemental Rules that UDRP providers use to handle complaints and responses. ICANN wrote:

To the extent that these expert recommendations result in modifications to certain of the UDRP Rules or suggested changes for provider Supplemental Rules to align with the UDRP Rules, these may be adopted by the ICANN Board without the necessity of undertaking a complete PDP.

Consultations have shown that there’s little appetite for massive reform from either side of the debate; it’s probably not too cynical to say that the status quo will be maintained largely by paranoia.
Trademark holders would ideally prefer a cheaper, faster system that is more accommodating to their own interests, whereas domain investors would like to see an end to forum-shopping and panelists who give too much deference to big business.
But both sides are terrified that the actual process of reforming UDRP would be captured by their opponents, ultimately tilting the balance of power against their own interests.
The trademark lobby is convinced that ICANN policy-development is the plaything of the domain name industry, and vice versa.
What we’re left with is a system where cybersquatting still pays and in which reverse domain hijacking can sometimes be a cheap way to get your hands on a domain you want.
And it looks like it could stay that way for some time to come.
The Final Issue Report now needs to be considered by the GNSO Council, presumably at its public meeting in Dakar, Senegal later this month.
I think the Council will almost certainly accept the report’s recommendations against a PDP with little argument – everybody has far too much other stuff to be worrying about at the moment.
It’s less clear to me whether the idea of an “expert panel” will find favor, however. That may be one of Dakar’s more interesting open questions.

Would an ICANN ethics policy break the law?

Calls for a new ethics policy to prevent a “revolving door” between ICANN and the domain name industry stepped up today, with the Association of National Advertisers entering the debate.
But would such a policy be illegal in ICANN’s home state of California?
The ANA and others wrote to ICANN today, in response to a public comment period on the question of whether ICANN should revise its conflicts of interest policy.
ICANN had asked whether the policy should be changed in order to let its board of directors vote to give themselves a salary. They’re currently all unpaid except the chair.
But the responses so far have instead largely focused on the perceived need to stop directors (and to a lesser extent staff) from taking lucrative industry jobs after they quit.
That was perhaps inevitable given the recent mainstream media coverage of former ICANN chair Peter Dengate Thrush, who took a high-paying job with new gTLD applicant Minds + Machines just a few weeks after helping to push through approval of the gTLD program.
The ANA’s president, Bob Liodice, wrote:

There is, at a minimum, legitimate reason for concern that the lack of adequate conflict of interest policies have led to the development of a growing perception that Mr. Thrush (and perhaps other senior staff who recently have left ICANN) may have let future career prospects influence their official duties.

(The other senior staffer he refers to could only be Craig Schwartz, the former chief gTLD registry liaison, who quit ICANN to join a likely .bank applicant in June.
While there are good reasons that Dengate Thrush’s move looks extremely fishy to outsiders, I’ve yet to hear any compelling arguments that Schwartz, who I don’t think had any high-level policy-making power anyway, did anything wrong.)
The ANA is of course the ring-leader of the ongoing campaign to get ICANN to rethink the new gTLD program in its entirety.
Liodice’s letter goes on to outline a number of suggestions, posed as questions, as to how ICANN could improve its conflict of interest policy, such as:

should ICANN consider reasonable restrictions or a moratorium on post‐service employment of ICANN staff by, or the contracting of such staff members with, parties under contract to ICANN, or whose businesses are materially affected by any decision made by the Board during the staff member’s tenure?

In other words: should ICANN staff be banned from joining registrars and registries after they leave?
In two other letters to ICANN today, Coalition for Online Accountability, International Trademark Association and American IP Law Association (collectively) and the French government make similar calls for future employment restrictions, albeit only for ICANN directors rather than staff.
But here’s another question: if the community asked ICANN to institute a revolving-door prevention policy, could it legally do so? A bit of digging suggests it might be tough.
According to the minutes of an August 15 meeting of ICANN’s Board Governance Committee:

The BGC discussed that as a private sector organization, ICANN is limited in its ability to place restrictions on future employment, though there are many things that ICANN can do to address these concerns, such as continued strict adherence and enforcement of confidentiality provisions.

The matter was also discussed by the full board at its retreat last month, and is on the agenda for the public meeting in Dakar, Senegal, at the end of October.
While ICANN does have pseudo-regulatory power (all enforced through contract) it is at the end of the day a California corporation, which is bound by California law.
And in California, it may not be legal to unreasonably restrict employees’ future job opportunities.
I’m not a lawyer, and this may not be applicable to ICANN for any number of reasons, but consider how California law deals with so-called “non-compete clauses” in employment contracts.
The text “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void” is on the California statute books.
And in 2008, the California Supreme Court interpreted this rather strictly, ruling that “non-competition agreements are invalid under section 16600 in California even if narrowly drawn”.
So could ICANN legally prevent staff or directors from jumping into the for-profit sector when they please? Is there any point in the community even debating the subject?
At this point, any members of the California Bar reading this are welcome to throw their $0.02 into the comments section below.

US and EU could see power diluted in ICANN

A proposed shakeup of how ICANN divides the world into geographic regions could shift power away from US and European Union citizens.
Working group recommendations just finalized after over two years of discussion would see dozens of countries join the European and North American regions.
If adopted by ICANN, the proposals could potentially reduce the number of Western European and American faces on the ICANN board of directors.
ICANN currently recognizes five regions: North America, Latin America/Caribbean, Europe, Africa and Asia/Pacific. Under its bylaws, each region needs to have at least one seat on the board, and no region may have more than five.
After two years of deliberations, the volunteer Geographic Regions Review Working Group has now recommended that the five regions stay, but that many countries should be shuffled between regions to more accurately describe their location.
The North America group currently comprises just the US and Canada, along with a small number of US overseas territories. Mexico inexplicably counts as Latin America.
If the working group’s proposals are adopted, North America would lose territories such as Guam and American Samoa and gain more than 20 Caribbean and North Atlantic island nations, such as Jamaica, Barbados and the Cayman Islands.
The net result of this would be that when new ICANN directors are selected, the North American pool of candidates could be much more geographically and culturally diverse.
Europe’s boundaries would also be redrawn to encompass nations in the Middle East, which are currently assigned to the Asia/Pacific group.
Nations such as Iran, Saudi Arabia and Israel would join Europe, as would former Soviet states such as Georgia, Tajikistan and Armenia. In total, Europe would get 24 new countries.
Some former colonial territories currently assigned to Europe due to their political heritage rather than their actual location would be shuffled into a more geographically appropriate region.
The British-owned Falklands would move to Latin America, for example, while French Polynesia and the British Indian Ocean Territory would join the Asia/Pacific region.
Again, a result of this reshuffle is that a region currently dominated by EU and other Western European states would have to be shared by a more diverse group of stakeholders.
Many of the moves make a lot of sense. In the current set-up, for example, the largely Greek-speaking EU nation Cyprus is in the same “geographic region” as Australia, some 9,000 miles away.
The new borders have been recommended to match the way the regions are currently handled by the five Regional Internet Registries, which allocate IP addresses to network operators.
The working group, in deciding to use the RIRs’ jurisdiction as a baseline, wrote in its report (pdf):

Fundamentally, ICANN is a technical organization and so aligning regions with the technical “infrastructure” of the numbering resource allocation system seems logical and defensible.
If adopted without modification, a total of 62 countries and territories would move to new regions, but many of these are the result of assigning territories to their geographic region rather than to the region of their mother country

The decision to stick at five regions will come as a blow to Arab states and some island nations, which had lobbied for new regions to be created to reflect their interests.
The working group has also recommended that any country or territory that wants to stick with its existing region is entitled to do so, but that once they do they’re locked into that decision for 10 years.
ICANN has opened the proposals to a longer-than-usual period of public comment, starting today and ending December 19, presumably in order to give the Governmental Advisory Committee and its members plenty of time to prepare reactions.
It seems unlikely we’ll see any formal adoption of the recommendations before the Costa Rica ICANN meeting in March 2012 at the earliest.

First video of ICANN’s new gTLDs outreach

Here’s what I believe is the first publicly available video from ICANN’s ongoing new top-level domains marketing road-trip, which kicked off earlier this month.
CEO Rod Beckstrom, along with a small entourage of ICANN staffers, attended a breakfast panel discussion of new gTLDs at the London offices of PR company Edelman on September 20.
Also on the panel, moderated by Edelman’s Jonathan Hargreaves, were: Lesley Cowley, CEO of .uk registry Nominet; Lorna Gradden, director of brand-focused registrar Com Laude; and me.
There were roughly 75 people in the audience, which I’ve heard is somewhat more than showed up to similar ICANN panels in Berlin and Paris later in the week.
I know from conversations after the camera stopped rolling that a decent number of attendees were from outside the domain name industry – potential applicants – but the questions you’ll hear on the video pretty much all come from those with a closer interest in the new gTLD program.
As I’ve been reporting, ICANN is taking a softly-softly approach to outreach, saying it’s trying to “educate not advocate”, which is also evident in this video.
My main takeaway – and the story I would have written had I been in the audience taking notes rather than on the panel not – is that some of the recommendations of the JAS working group on new gTLD developing-world applicant support appear to be stillborn.
In the meantime, here’s all 68 minutes of the video.

Will URS really be as cheap as ICANN says?

I’m having a hard time believing that trademark holders will be able to enforce their rights in new top-level domains for just $300.
The Uniform Rapid Suspension policy (pdf) is one of the new systems ICANN is putting in place to deter cybersquatters from abusing trademarks in new gTLDs.
It’s very similar to the existing UDRP, but it’s quicker and it only deals with the suspension – not transfer – of infringing domain names.
No URS arbitration provider has yet been appointed, but ICANN’s Applicant Guidebook, which spells out the policy, currently estimates a price of $300 per single-domain filing.
At least twice during the newdomains.org conference in Munich this week I heard ICANN representatives quote a price between $300 and $500.
I’m wondering how realistic this is.
Typically, domain arbitration fees are split between the provider, which receives a third, and the panelist, who receives the remaining two thirds.
With a $300 fee, that’s $100 to the provider and $200 to the sole panelist – who must be an experienced trademark lawyer or similar – compared to a $500/$1,000 split with the UDRP.
My question is: how many trademark lawyers will get out of bed for $200?
The URS gives panelists between three and five days to come up with a decision, but I’m guessing that you’d be lucky, for $200, to buy three to five hours of a panelist’s time.
Even I charge more than $200 for half a day’s work.
The Rapid Evaluation Service recently introduced by ICM Registry, which serves essentially the same purpose as URS but for the .xxx gTLD, costs $1,300 in National Arbitration Forum fees.
Like URS, the RES is designed for a speedy turnaround – just three days for a preliminary evaluation – of clear-cut cybersquatting cases.
Like URS, complaints submitted using RES have a tight word-count limit, to minimize the amount of work panelists have to do.
With that in mind, it seems to me that a $300 fee for URS may be unrealistic. Even the $500 upper-end ICANN estimate may be optimistic.
It will be interesting to see if ICANN’s negotiating clout with likely URS providers is better than ICM’s and, more importantly, to see whether $200 is enough to buy consistent, reliable decisions from panelists.