10 Years Ago… new gTLDs, ICANN pay, DNS abuse and ethics

The more things change, the more they stay the same.

I’ve been in a reflective mood recently, and it’s a slow news day, so I thought now might be a good time to launch a new, irregular feature — a trawl back through the DI archives to see what we were all talking about a decade ago this month.

In many respects, the conversations haven’t changed all that much in the last 10 years. Some are being repeated almost verbatim today. Others seem almost laughably naive with hindsight.

New TLDs

We were just a few months away from the opening of the first big new gTLD application window, but in October 2011 many of the rules of the program were, remarkably, still up in the air.

ICANN still hadn’t decided how much an application would cost. It had yet to decide how it would subsidize poorer applicants.

No Trademark Clearinghouse supplier had yet been found, and there was still some confusion about how the application process would work, and how it would be communicated to potential applicants.

The industry was awash with speculation, as it had been for the whole year, about who might apply for a gTLD. In October, there were stories about potential applications from New South Wales, Orange, Corsica, and BITS.

Afilias was offering $5,000 for new gTLD ideas.

But perhaps the strangest idea was a pitch from CentralNic to the super-rich. For $500,000, it would apply for your family name as a new gTLD. This came to nothing in the 2012 round, but CentralNic’s site is still live.

While new gTLDs were still in the future, October 2011 saw the ongoing sunrise period for the previous round’s .xxx, auctions following the recent launch of .co, and the creation of two new ccTLDs.

Abuse

October 2011 was marked by the registrar community reluctantly agreeing to enter talks with ICANN to renegotiate their standard Registrar Accreditation Agreement, which would ultimately lead to the current 2013 RAA.

The move came as the Governmental Advisory Committee was on the warpath on behalf of its law enforcement allies, demanding more action from the industry on DNS abuse and threatening legislation if it didn’t happen.

Imagine that.

Meanwhile, Verisign asked ICANN for more powers to take down abusive domains, which faced immediate pushback from registrars and others, before the request was retracted mere days later.

The Revolving Door

There was a lot of talk during and around ICANN 42 about conflicts of interest, particular with regards the emergence of a so-called “revolving door” between ICANN’s top brass and the domain industry.

It had been just a few months since chair Peter Dengate Thrush had, on the eve of his retirement from the board, pushed through final approval of the new gTLD program and promptly took a top job at portfolio applicant Minds + Machines.

It looked rotten, and ICANN CEO Rod Beckstrom, who had himself announced he was quitting just months earlier, had made its his personal mission to reduce at least the perception of conflicts of interest at the Org.

He ruled out being replaced by a fellow director, threw money at consultants, and said the next CEO should be an industry outsider.

It was probably all pointless.

As it turned out, the guy who replaced Beckstrom, Fadi Chehade, put in a few years in the corner office before prematurely quitting for private equity, where he now runs the company that owns Donuts, itself run by Chehade’s ICANN number two, Akram Atallah.

The amount of revolving door action at less-senior levels has been so frequent since 2011 that I don’t even keep track of it any more.

ICANN Pay

ICANN gave its top execs big pay raises. Along with death and taxes, this is a universal constant.

I’m not kidding, ICANN is flirting with banning jokes

ICANN has come a long way since 2005 or thereabouts, when, at a public meeting, I made deputy general counsel Dan Halloran laugh so hard he vomited out of his nose.

Now, the increasingly po-faced Org has crawled so far up its own arse that it’s openly talking about banning — or at the very least discouraging — humor and lightheartedness during its thrice-annual get-togethers.

Ombudsman Herb Waye today blogged up his traditional pre-meeting reminder about the Expected Standards of Behavior, ahead of this month’s ICANN 72 AGM, which is taking place virtually.

There’s nothing wrong with this — the ESOB is merely a form of institutionalized politeness — but it’s being embellished this time around with a warning not to joke around in the Zoom chat rooms.

Waye wrote:

the intention of a comment can be difficult to ascertain without the benefit of vocal tone and body language. What was intended as a joke or light-hearted observation online to a group can unintentionally make the subject of the comment feel unfairly targeted.

I consulted with the ICANN community and organization (org) leadership for thoughts on how to promote a respectful virtual environment while also supporting the spirit of open dialogue that drives ICANN. I am grateful for their input. To ensure our Zoom sessions are engaging, inclusive, and productive, please remember these tips:

• To avoid confusion and to respect the session’s planned agenda, please keep your interventions in the public chat on the topic that is being discussed.
• Use private messages for off-topic comments.
• Before commenting or adding a joke, please remember the cultural diversity of the ICANN community and consider how your comment could be perceived.

Remember, ICANN meetings are designed to be soul-crushingly dull, and attended only by sensitive North American children, so let’s keep them that way.

DotConnectAfrica slammed for two-faced strategy as it loses .africa appeal

Unsuccessful gTLD applicant DotConnectAfrica has been handed what may prove to be the final nail in the coffin for its failed .africa bid.

A California appeals court has upheld ICANN’s lower-court victory over DCA in its entirety, ruling that the .africa applicant had a two-faced legal strategy that saw it first argue that it did not have a right to sue, but then suing anyway.

After having its .africa application rejected by ICANN due to lack of African government support in 2012, the following year DCA filed an Independent Review Process complaint against ICANN.

One of its key arguments in that case was that it, along with every other new gTLD applicant, had been forced to sign a legal waiver, preventing them from taking ICANN to court.

When it was handed a partial victory in the IRP, sufficient to embarrass ICANN but not enough to have .africa reassigned, DCA was one of a few parties who ignored the legal waiver and sued anyway, in 2016.

Now, the California appeals court has confirmed a lower court ruling that this violated the rule of “judicial estoppel”, which prevents a party switching between two diametrically opposing arguments to suit their strategy at any given time.

“DotConnect took two contrary positions. It told the arbitrators on the Independent Review Panel it could not sue in court. DotConnect then sued in court,” the three judges wrote.

They added that the “text of that litigation waiver was unequivocal, unconditional, and unlimited.”

The ruling describes the .africa case in pretty much the same way as I have for the last decade — DCA didn’t have government support when it applied for the gTLD and ICANN was well within its rights to throw out the application under the program’s rules.

ICANN was handed a thoroughly comprehensive victory, in other words, and awarded costs.

Is this the end of the .africa case? Given DCA boss Sophia Bekele’s apparent fondness for the sunk cost fallacy, who knows?

While all these legal shenanigans have been ongoing, .africa has been delegated to and launched by ZA Central Registry, which had the support of the African Union following an RFP that DCA refused to participate in.

There are about 30,000 .africa domains under management today, which is not terrible for a new gTLD.

The 30-page appeals court ruling (pdf) was made September 20 and ICANN published it this week.

Marby finds his pandemic pessimism

CEO Göran Marby has spelled out his goals for ICANN’s current fiscal year, and they include a scaled-back ambition when it comes to face-to-face public meetings in the face of an ongoing pandemic.

His first enumerated goal for the year ending June 30, 2022 is:

Develop, with the community and with support from the Board, the ability to conduct hybrid meetings that are inclusive and enhance the opportunity for community interaction and decision-making.

Compare this with his equivalent goal from July 2020:

Work with Supporting Organization and Advisory Committee leaders, community members, and the Board to define and implement a phased plan to return to face-to-face meetings.

The goal of creating a “face-to-face” meetings plan has been replace with a “hybrid” meeting plan, where some section of the community can only participate online, depending on travel restrictions.

A lot has happened in the last 15 months when it comes to the coronavirus pandemic.

In June 2020, there was still some optimism in the ICANN board that the October meeting that year would go ahead in Hamburg as normal. That didn’t happen, and the face-to-face components of the three subsequent meetings have also been cancelled.

At that time, the world still hadn’t experienced the reality of Covid-19 variants, and the possibility of multiple lockdown scenarios was still largely theoretical.

So it’s probably no surprise that Marby has been forced to rein in his hopes for bumping elbows with the global community any time soon.

ICANN 72 later this month, originally planned for Seattle, will be the sixth consecutive online-only public meeting, but Marby has been tasked by the board with making the Puerto Rico meeting next March a “hybrid” affair.

Given his goals run to mid-2022, it seems possible ICANN 74, slated for The Hague next June, is also being considered most likely a hybrid meeting.

Marby has nine goals for the year in total. Seven he wrote himself, two were set by the board. Last year, he had 10 in total of which four were set by the board.

Other areas of interest coming from his own pen include greater focus on legislation around the world, emerging technologies such as blockchain naming, outreach in the developing world, DNS security and stability and prioritizing ICANN’s increasingly overwhelming workload.

Not all of them are stated as goals, at least in Marby’s blog post, and not all appear to have measurable outcomes.

The board has told him to “stimulate Universal Acceptance” and “work with Internet governance stakeholders”. Again, it’s all pretty amorphous stuff.

One 2021 goal that does not make an appearance this year is “Develop a plan for the potential economist function”, or hiring an “astrologer in chief” as I phrased it last year.

Reasonable people could disagree with whether this one was fulfilled — the economist job has been advertised on the ICANN web site all year, but does not yet appear to have been filled.

Price of Whois lookups could rise as ICANN delays reform work

ICANN has delayed the conclusion of work on Whois reform, potentially increasing the cost of requesting domain registration data in future.

Back in March, its board of directors gave the Org six months to complete the Operational Design Phase of the so-called SSAD, or System for Standardized Access and Disclosure, but that deadline passed this week.

It appears that ICANN is not even close to concluding its ODP work. No new deadline has been announced, but ICANN intends to talk to the community at ICANN 72 next month.

SSAD is a proposal created by the community and approved — not without controversy — by the GNSO Council. It would essentially create a centralized clearinghouse for law enforcement and intellectual property interests to request private registrant data from registries and registrars.

The ODP is a new process, never before used, whereby ICANN clarifies the community’s intentions and attempts to translate policy recommendations into a roadmap that is feasible and cost-effective to implement.

It seems this process suffered some teething troubles, which are partially responsible for the delays.

But it also appears that ICANN is having a hard time finding potential service provider partners capable of building and operating SSAD all by themselves, raising the prospect of a more complex and expensive piecemeal solution.

It had 17 responses to a recent RFI, but no respondent said it could cover all the bases.

The key sticking point, described by some as a “chicken and egg” problem, is figuring out how many people are likely to use SSAD and how often. If the system is too expensive or fails to deliver results, it will be used less. If it works like a charm and is cost-effective, query volumes would go up.

So ICANN is challenged to gaze into its crystal ball and find a sweet spot, balancing cost, functionality and usage, if SSAD is to be a success. So far, its estimates for usage range from 25,000 users making 100,000 requests a year to 3 million users making 12 million requests.

That’s how far away from concluding its work ICANN is.

Confounding matters, the longer ICANN drags its feet on the ODP phase, the more expensive SSAD is likely to be for the end users who will ultimately wind up paying for it.

In a webinar last week, CEO Göran Marby said that the SSAD project is meant to recover its own costs. Whatever ICANN is spending on the ODP right now is expected to be recouped from access fees when SSAD goes live.

“This should not cost ICANN Org anything,” he said. “The costs should be carried by the user.”

ICANN is working on the assumption that SSAD will eventually happen, but if the ODP decides not to implement SSAD, ICANN will have to eat the costs, he indicated.

When the ICANN board approved this ODP, it did not specify how much money was being allocated to the project.

A second and separate ODP, looking at the next round of new gTLDs, was earlier this month given $9 million to conduct an anticipated 10-month project.

ICANN won’t vote on new gTLDs for another year

Those of you champing at the bit for an opportunity to apply for some more new gTLDs have a longer wait ahead of you than you might have hoped, following a vote of the ICANN board of directors last week.

The board has asked ICANN staff to kick off the latest — but not last — stage of the long-running runway to the next application window, but it will take around 10 months and cost millions.

On September 12, the board gave CEO Göran Marby $9 million from the 2012 round’s war chest and told him to kick off the so-called Operational Design Phase of the New Generic Top-Level Domain Subsequent Procedures Policy Development Process (SubPro).

What this means is that ICANN will take the community-created policy recommendations approved by the GNSO Council in January and try to figure how they specifically could be implemented, before the board decides whether they should be implemented.

The ODP will “assess the potential risks, anticipated costs, resource requirements, timelines, and other matters related to implementation” the board resolution states.

For example, while the SubPro final report calls for an outreach campaign prior to opening the application window, the ODP scoping document (pdf) asks what materials would be needed to be produced and how much they would cost.

The scoping paper comprises dozens and dozens of questions like this, over 15 pages. I started counting them but got bored.

ICANN chair Maarten Botterman said the ODP will provide the board “with relevant materials to facilitate the Board’s determination whether the recommendations are in the best interest of the ICANN community or ICANN”.

While the resolution says the ODP should be completed “within 10 months”, that clock starts ticking when the Marby “initiates” the process, and that does not appear to have happened.

Given that, and ICANN’s habitual tardiness, I’d guess we’re looking at closer to a year before the Org has a document ready to put before the board for consideration.

With all the other stuff that needs to happen following the board’s approval, we’re probably talking about a 2024 application window. That would be 12 years after the last round and 11 years later than the next round was originally promised.

ICANN now has half a billion bucks in the bank after huge pandemic profits

ICANN, the non-profit organization with the limited technical mandate, now has over half a billion dollars in the bank, after the affects of the coronavirus pandemic boosted funding and slashed costs.

The Org ended June 2021 with cash and investments of $521 million, up $40 million over the preceding 12 months.

While some of this gain can be attributed to investment gains, the majority chunk comes from ICANN largely misjudging the length and impact of pandemic-related restrictions.

Expenses were $10 million lower than budget, because all three ICANN meetings during the year were held online, where they cost about half a million bucks a pop, about $3 million lower than in-person gatherings.

ICANN had budgeted for its 2021 meetings to take place face-to-face in venues around the world, but governmental travel restrictions made this impossible.

The Org saved well over half a million dollars in director expenses alone.

On the top half of the financial statement, the numbers also show a failure to predict how much the pandemic would be generally a boon, rather than a burden, to the domain name industry.

ICANN received $142 million in funding during the year, which was $12 million ahead of budget and $1 million more than it received in fiscal 2020.

CTO Conrad quits ICANN

ICANN chief technology officer David Conrad will leave the Org at the end of the month, ICANN said Friday.

No reason was given for the departure, neither was Conrad’s destination, should there be one, disclosed.

He’s been CTO since 2014. Before that, he was a VP there from 2005 to 2010.

He’ll be temporarily replaced by long-time ICANN staffer John Crain, currently chief security, stability, and resiliency officer, while ICANN carries out a formal recruitment drive.

ICANN could get the ball rolling on next new gTLD round this weekend

ICANN may be about to take the next step towards the next round of new gTLD applications at a meeting this Sunday.

On the agenda for the full board of directors is “New gTLD Subsequent Procedures Operational Design Phase (ODP): Scoping Document, Board Resolution, Funding and Next steps”.

But don’t quite hand over all your money to an application consultant just yet — if ICANN approves anything this weekend, it’s just the “Operational Design Phase”.

The ODP is a new piece of procedural red tape for ICANN, coming between approval of a policy by the GNSO Council and approval by the board.

It is does NOT mean the board will approve a subsequent round. It merely means it will ask staff to consider the feasibility of eventually implementing the policy, considering stuff like cost and legality.

CEO Göran Marby recently said the ODP will take more than six months to complete, so we’re not looking at board approval of the next round until second-quarter 2022 at the earliest.

More privacy headaches? UK to withdraw from GDPR

The UK is to craft its own privacy legislation, after Brexit enabled it to extricate itself from the EU’s General Data Protection Regulation, potentially causing headaches for domain name companies.

While it’s still in the very early pre-consultation stages, the government announced today that it wants “to make the country’s data regime even more ambitious, pro-growth and innovation-friendly, while still being underpinned by secure and trustworthy privacy standards.”

The country looks to be heading to a new privacy regime that registries and registrars doing business there will have to comply with, particular with regard to Whois services, in other words.

But it might not be too bad — the government is talking up plans to make “data adequacy” deals with third countries to enable the easy, legal transfer of private data across borders, which is always useful in the context of domain names.

While the UK is no longer in the EU, most EU laws including GDPR were grandfathered in and are still in effect.