GNSO faces off with governments over IGO cybersquatting

A defiant ICANN working group looking at cybersquatting rules for intergovernmental organizations is sticking to its guns in an ongoing face-off with the Governmental Advisory Committee.
In a report published for public comment this week, the GNSO working group recommended that IGOs should be given the right to use the UDRP and URS rights protection mechanisms, despite not being trademark owners.
But the recommendations conflict with the advice of the GAC, which wants ICANN to create entirely new mechanisms to deal with IGO rights.
I explored a lot of the back story of this argument in two posts a few months ago, which I will not rehash here.
The latest development is the publication of the proposed initial report of the GNSO IGO-INGO Access to Curative Rights Protection Mechanisms Initial Report (pdf) for comment.
The WG was tasked with deciding whether changes should be made to UDRP and URS to help protect the names and acronyms of IGOs and INGOs (international non-governmental organizations).
For INGOs, including the special cases of the International Olympic Committee and the Red Cross/Red Crescent, it decided no changes and no new mechanisms are required, concluding:

Many INGOs already have, and do, enforce their trademark rights. There is no perceivable barrier to other INGOs obtaining trademark rights in their names and/or acronyms and subsequently utilizing those rights as the basis for standing in the existing dispute resolution procedures (DRPs) created and offered by ICANN as a faster and lower cost alternative to litigation. For UDRP and URS purposes they have the same standing as any other private party.

The case with IGOs is different, because using UDRP and URS requires complainants to agree that the panel’s decisions can be challenge in court, and IGOs by their nature have a special legal status that allows them to claim jurisdictional immunity.
The WG recommends that these groups should be allowed access to UDRP and URS if they have protection under Article 6ter of the Paris Convention, a longstanding international intellectual property treaty.
This rule would actually extend UDRP and URS to hundreds more IGO names and acronyms than the GAC has requested protection for, which is just a few hundred. WIPO’s 6ter database by contrast currently lists 925 names and 399 abbreviations.
To deal with the jurisdictional immunity problem, the WG report recommends that IGOs should be allowed to file cybersquatting complaints via a third-party “assignee, agent or licensee”.
It further recommends that if an IGO manages to persuade a court it has special jurisdictional immunity, having been sued by a UDRP-losing registrant, that the UDRP decision be either disregarded or sent back to the arbitration for another decision.
The recommendations with regard IGOs are in conflict with the recommendations (pdf) of the so-called “small group” — a collection of governments, IGOs, INGOs and ICANN directors that worked quietly and controversially in parallel with the WG to come up with alternative solutions.
The small group wants ICANN to create separate but “functionally equivalent” copies of the UDRP and URS to deal with cybersquatting on IGO name and acronyms.
These copied processes would be free for IGOs to use and, to account for the immunity issue, would not be founded in trademark law.
The WG recommendations are now open for public comment and are expected to be the subject of some debate at the March ICANN meeting in Copenhagen.

ICANN joins anti-phishing group board

ICANN’s VP of security has joined the board of directors of the Anti-Phishing Working Group.
Dave Piscitello is one of three new APWG board members, arriving as the group expands its board from two people to five.
APWG said the expansion “is recognition of the growing complexity and scale of Internet crime today and the challenges in responding to this global threat.”
In a press release, it noted that targeted phishing attacks are said to be the root cause of the data thefts that may or may not have influenced the US presidential election last year.
The other two new directors are Brad Wardman of PayPal and Pat Cain of The Cooper Cain Group, a security consulting firm (a different bloke to the similarly named Pat Kane of Verisign).
APWG is an independent, public-private coalition that collects and publishes data about phishing attack trends and advice for how to defend against them.
Part of this work entails tracking how many domain names are involved in phishing, and in which TLDs.
The APWG board also includes chair David Jevans of Proofpoint and secretary-general Peter Cassidy.

As Trump sworn in, CADNA returns to lobby for stronger cybersquatting laws

Remember the Coalition Against Domain Name Abuse? The lobby group that campaigned for stronger cybersquatting laws and against new gTLDs?
It’s back.
CADNA on Thursday used the imminent inauguration of new US president Donald Trump to announce that it’s back in the game, hoping a Republican-dominated government will be friendlier to its agenda.
It told its supporters on “the 2016 general elections outcomes for both the U.S. Congress and the White House present a unique and timely opportunity to push through legislation”.
It wants new federal laws modeled on 2010 Utah state legislation, the E-Commerce Integrity Act, which creates liability for non-registrant third-parties including domain name registrars.
The Utah law is closely modeled on the federal Anticybersquatting Consumer Protection Act of 1999, but has some crucial differences.
CADNA noted at the time the law was up for a vote that it:

expands the liability for cybersquatting activity to include the registrant’s authorized licensee, agent, affiliate, representative, domain name registrar, domain name registry, or other domain name registration authority that knowingly and actively assists a violation

That’s something ACPA does not allow for, and CADNA wants the federal law amended to include provisions such as this. It said:

The Coalition Against Domain Name Abuse (CADNA) is now mobilizing the global business community to promote and pass legislation that will greatly enhance the available protection mechanisms for online trademark protection and limit the appeal of cybersquatting.

The last time US cybersquatting laws came close to being amended was with the Anti-Phishing Consumer Protection Act of 2008, aka the Snowe Bill, which ultimately did not pass.
The Internet Commerce Association, which lobbies on behalf of domain investors, expressed concern with CADNA’s new efforts to revive its noughties lobbying tactics, telling members:

for now this is more of a CADNA recruiting effort than an active legislative natter. As you can see, CADNA announced a similar Federal effort in 2010, which went nowhere. Nonetheless, we should proceed on the assumption that CADNA will secure a sponsor and have such legislation introduced in the new Congress and that such legislation may well gain traction in the current political environment.

The ICA also expressed concern about the amount of statutory damages the Utah law permits compared to the ACPA.
While both Utah and ACPA allow damages of $1,000 to $100,000 per domain, the Utah law assumes the highest amount if a “pattern or practice” of cybersquatting can be demonstrated.
CADNA has been pretty quiet for the last few years.
Before the US elections last November, its most recent press release dated from October 2013.
The group is managed by the same people who run Fairwinds Partners, a new gTLD consultancy specializing in managing dot-brand gTLDs for some of the world’s biggest names.
Its gTLD clients include L’Oreal, Marriott and Walmart.
Fairwinds used its links to CADNA and its staunch opposition to the new gTLD program to pitch for these clients back in 2012.

Trump nominee open to retaking ICANN oversight role

The incoming head of the US Department of Commerce has indicated that it is unlikely he’ll try to reestablish the US government’s unique oversight of ICANN, at least in the short term.
But at his confirmation hearing in Congress yesterday, Trump nominee for secretary of commerce Wilbur Ross said he’d be open to ideas about how the US could increase its power over ICANN.
He was responding to a question from Ted Cruz, the Texas senator who made halting the IANA transition one of his key concerns last year.
Cruz, framing the question in such a way as to suggest ICANN is now in the hands of an intergovernmental consortium (which it is not) asked Ross whether he was committed to preventing censorious regimes using ICANN to hinder Americans’ freedom of speech.

Ross replied:

As such a big market and really as the inventors of the Internet, I’m a little surprised that we seem to be essentially voiceless in the governance of that activity. That strikes me as an intellectually incorrect solution. But I’m not aware of what it is that we actually can do right now to deal with that. If it exists, if some realistic alternative comes up, I’d be very interested.

His response also mischaracterizes the power balance post-transition.
The US is not “essentially voiceless”. Rather, it has the same voice as every other government as a member of the Governmental Advisory Committee.
Its role is arguably still a lot more powerful than other nations, given that ICANN is now bylaws-bound to remain headquartered in California and under US jurisdiction.
As head of Commerce, Ross will have authority over the National Telecommunications and Information Administration, the agency most directly responsible for dealing with ICANN and domain name issues in general.
NTIA itself will to the best of my knowledge still be headed by assistant secretary Larry Strickling, who handled the IANA transition from the US government side. (UPDATE: this may not be correct)
Ross, 79, is a billionaire investor who made most of his estimated $2.5 billion fortune restructuring bankrupt companies in the coal and steel industries.

ICANN retires Affirmation of Commitments with US gov

ICANN has terminated its last formal oversight link with the US government.
Late last week, ICANN chair Steve Crocker and Larry Strickling, assistant secretary at the US National Telecommunications and Information Administration mutually agreed to retire the seven-year-old Affirmation of Commitments.
The AoC, negotiated during the tail end of Paul Twomey’s leadership of ICANN and signed by successor Rod Beckstrom, laid out ICANN’s responsibilities to the US government and, to a lesser extent, vice versa.
It included, for example, ICANN’s commitments to openness and transparency, its promise to remain headquartered in California, and its agreement to ongoing reviews of the impact of its actions.
Ongoing projects such as the Competition and Consumer Trust Review originate in the AoC.
The rationale for concluding the deal now is that most of significant provisions of the AoC have been grandfathered into ICANN’s revised bylaws and other foundational documents following the IANA transition, which concluded in October.
Reviews such as the CCT and the lock on its California HQ are now in the bylaws and elsewhere, ICANN said in a blog post.
It’s worth mentioning that the US gets a new administration led by Donald Trump in a little over a week, so it probably made sense to get the AoC out of the way now, lest the new president do something insane with it.
The letters from Crocker and Strickling terminating the deal can be read together here (pdf).

ICANN’s top DC lobbyist gets consumer safeguards role

ICANN has named veteran staffer Jamie Hedlund as its new senior VP for contractual compliance and consumer safeguards.
It’s a new executive team role, created by the departure of chief contract compliance officer Allen Grogan. Grogan announced his intention to leave ICANN last May, and has been working there part-time since August.
The “consumer safeguards” part of the job description is new.
ICANN first said it planned to hire such a person in late 2014, but the position was never filled, despite frequent poking by anti-spam activists.
Now it appears that the two roles — compliance and consumer safeguards — have been combined.
This makes sense, give that ICANN has no power to safeguard consumers other than the enforcement of its contracts with registries and registrars.
From the outside, it does not immediately strike me as an obvious move for Hedlund.
While his job title has changed regularly during his six or so years at ICANN, he’s mainly known as the organization’s only in-house Washington DC government lobbyist.
He played a key role in the recent IANA transition, which saw the US government sever its formal oversight ties with ICANN.
His bio shows no obvious experience in consumer protection roles.
His replacement in the government relations role is arguably just as surprising — Duncan Burns, a veteran PR man who will keep his current job title of senior VP of global communications.
The appointments seem to indicate that lobbying the US government is not as critical to ICANN in the post-transition world, and that institutional experience in the rarefied world of ICANN is a key qualifier for senior positions.

.africa could go live after court refuses injunction

DotConnectAfrica’s attempt to have ICANN legally blocked from delegating the .africa gTLD to rival applicant ZACR has been denied.
The ruling by a Los Angeles court, following a December 22 hearing, means ICANN could put .africa in the root, under ZACR’s control, even before the case comes to trial.
A court document (pdf) states:

The plaintiff is seeking to enjoin defendant Internet Corporation for Assigned Names and Numbers (ICANN) from issuing the .Africa generic top level domain (gTLD) until this case has been resolved…
The plaintiff’s motion for the imposition of a Preliminary Injunction is denied, based on the reasoning expressed in the oral and written arguments of defense counsel.

ICANN was just days away from delegating .africa last April when it was hit by a shock preliminary injunction by a California judge who later admitted he hadn’t fully understood the case.
My understanding is that the latest ruling means ICANN may no longer be subject to that injunction, but ICANN was off for the Christmas holidays last week and unable to comment.
“Sanity prevails and dotAfrica is now one (big) step closer to becoming a reality!” ZACR executive director Neil Dundas wrote on Facebook. He declined to comment further.
Even if ICANN no longer has its hands tied legally, it may decide to wait until the trial is over before delegating .africa anyway.
But its lawyers had argued that there was no need for an injunction, saying that .africa could be re-delegated to DCA should ICANN lose at trial.
DCA case centers on its claims that ICANN treated it unfairly, breaking the terms of the Applicant Guidebook, by awarding .africa to ZACR.
ZACR has support from African governments, as required by the Guidebook, whereas DCA does not.
But DCA argues that a long-since revoked support letter from the African Union should still count, based on the well-known principle of jurisprudence the playground “no take-backs”.
The parties are due to return to court January 23 to agree upon dates for the trial.

After Zika threat passes, ICANN confirms return to Puerto Rico

ICANN will hold its first public meeting of 2018 in San Juan, Puerto Rico, which was originally supposed to the venue for this October’s meeting.
ICANN moved ICANN 57 from San Juan to Hyderabad, India in May, at the height of the scare about the Zika virus.
Zika is spread by mosquitoes and sex and can cause horrible birth defects. An epidemic, beginning in 2015, saw thousands affected in the Americas and South-East Asia.
Puerto Rico was one of the affected regions. At the time of the ICANN postponement, numerous government travel warnings were in effect.
The World Health Organization announced last month that the epidemic is over.
It was always understood that Puerto Rico had been merely postponed rather than permanently canceled, and ICANN’s board of directors this week resolved to hold the March 2018 meeting — ICANN 61 — there.

Survey says most Whois records “accurate”

Ninety-seven percent of Whois records contain working email addresses and/or phone numbers, according to the results of an ongoing ICANN survey.
The organization yesterday published the second of its now-biannual WHOIS Accuracy Reporting System reports, a weighty document stuffed with facts and figures about the reliability of Whois records.
It found, not for the first time, that the vast majority of Whois records are not overtly fake.
Email addresses and phone numbers found there almost always work, the survey found, and postal addresses for the most part appear to be real postal addresses.
The survey used a sample of 12,000 domains over 664 gTLDs. It tested for two types of accuracy: “syntactical” and “operability”.
Syntactical testing just checks, for example, whether the email address has an @ symbol in it and whether phone numbers have the correct number of digits.
Operability testing goes further, actually phoning and emailing the Whois contacts to see if the calls connect and emails don’t bounce back.
For postal addresses, the survey uses third-party software to see whether the address actually exists. No letters are sent.
The latest survey found that 97% of Whois records contain at least one working phone number or email address, “which implies that nearly all records contain information that can be used to establish immediate contact.”
If you’re being more strict about how accurate you want your records, the number plummets dramatically.
Only 65% of records had operable phone, email and postal contact info in each of the registrant, administrative and technical contact fields.
Regionally, fully accurate Whois was up to 77% in North America but as low as 49.5% in Africa.
So it’s not great news if Whois accuracy is your bugbear.
Also, the survey does not purport to verify that the owners of the contact information are in fact the true registrants, only that the information is not missing, fake or terminally out-of-date.
A Whois record containing somebody else’s address and phone number and a throwaway webmail address would be considered “accurate” for the survey’s purposes.
The 54-page survey can be found over here.

ICANN picks Madrid for next gTLD industry meeting

ICANN’s Global Domains Division has invited the domain industry to Madrid for next year’s GDD Industry Summit.
The meeting will be held at the drably named NH Collection Madrid Eurobuilding hotel from May 8 to 11 2017.
The timing may be fortuitous for intercontinental travelers — it ends just a couple of days before the Domaining Europe event starts in Berlin, which is just a short flight away.
ICANN summits are intersessional meetings dedicated to particular constituencies within the ICANN community. The GDD Industry Summit caters to registries, registrars and others in the business of selling gTLD domains.
They’re less formal that ICANN’s regular public meetings, designed to enable engagement between participants and between participants and ICANN staff.
The 2016 meeting was held in Amsterdam this June, attracting about 400 attendees.
ICANN’s formal public meetings next year are slated for Copenhagen (March), Johannesburg (June) and Abu Dhabi (October).