.africa to finally go live after judge denies injunction

A Los Angeles court has rejected a demand for a preliminary injunction preventing ICANN delegating .africa, meaning the new gTLD can go live soon.
Judge Howard Halm ruled February 3, in documents published last night, that the “covenant not to sue” signed by every new gTLD applicant is enforceable and that Africans are being harmed as long as .africa is stuck in legal limbo.
The ruling comes two and a half years after ZA Central Registry, the successful of the two .africa applicants, signed its Registry Agreement with ICANN.
Rival applicant DotConnectAfrica, rejected because it has no African government support, is suing ICANN for fraud, alleging that it failed to follow its own rules and unfairly favored ZACR from the outset.
Unfortunately, the ruling does not address the merits of these claims. It merely says that DCA is unlikely to win its suit due to the covenant it signed.
Halm based his decision on the precedent in Ruby Glen v ICANN, the Donuts lawsuit that seeks to stop ICANN awarding .web to Verisign. The judge in that case ruled last November that Donuts signed away its right to sue.
An earlier judge in the DCA v ICANN case had ruled — based at least in part on a misunderstanding of the facts — that the covenant was unenforceable, but that decision now seems to have been brushed aside.
Halm was not convinced that DCA would suffer irreparable harm if ZACR got given .africa, writing:

The .Africa gTLD can be re-delegated to DCA in the event DCA prevails in this litigation… Further, it appears that any interim harm to DCA can be remedied by monetary damages

He balanced this against the harm of NOT delegating .africa:

The public interest also weighs in favor of denying the injunction because the delay in the delegation of the .Africa gTLD is depriving the people of Africa of having their own unique gTLD.

So what now?
ICANN said in a statement: “In accordance with the terms of its Registry Agreement with ZACR for .AFRICA, ICANN will now follow its normal processes towards delegation.”
As of this morning, ZACR’s .africa bid is officially still marked as “On Hold” by ICANN, though this is likely to change shortly.
Assuming ZACR has already completed pre-delegation testing, delegation itself could be less than a week away.
If DCA’s record is anything to go by, it seems unlikely that this latest setback will be enough to get it to abandon its cause.
Its usual MO whenever it receives an adverse decision or criticism is to double down and start screaming about conspiracies.
While the injunction was denied, the lawsuit itself has not been thrown out, so there’s still plenty of time for more of that.
You can read Halm’s ruling here (pdf).

Antitrust feds probing Verisign’s .web deal

US antitrust authorities are investigating Verisign over its anticipated operation of the .web gTLD.
The probe was disclosed by company CEO Jim Bidzos in yesterday’s fourth-quarter earnings call. He said:

On January 18, 2017, the company received a Civil Investigative Demand from the Antitrust Division of the US Department of Justice, requesting certain information related to Verisign’s potential operations of the .web TLD. The CID is not directed at Verisign’s existing registry agreements.

He did not comment further, beyond describing it as “kind of like a subpoena”.
Verisign acquired the rights to run .web at an ICANN last-resort auction last July, agreeing to pay $135 million.
Rather than applying for the gTLD itself, it secretly bankrolled shell company Nu Dot Co, which intends to transfer its .web contract to Verisign after it is signed.
ICANN is being sued by rival applicant Donuts, which claims NDC should have been banned from the auction. Afilias, the auction runner up, is also challenging the outcome.
But this new DoJ investigation, if we take Bidzos’ words at face value, appears to focus on what Verisign plans to do with .web once it is live.
It’s the view of many that .web would be the new gTLD best positioned as an alternative to .com, which makes Verisign hundreds of millions of dollars a year.
It’s my view that it would make perfect sense for Verisign to flush the $135 million and bury .web, rather than have a viable competitor on the market.
Verisign has repeatedly said that intends to “grow and widely distribute .web”, words Bidzos repeated last night.
The investigation is likely into whether Verisign wants to actually raise .web, or strangle it in its crib.
It seems the investigation was launched in the dying days of the Obama administration, so the recent changing of the guard at Justice — Attorney General Jeff Sessions was confirmed by Congress just two days ago — may have an impact on how it plays out.

ICANN’s Empowered Community to get its first test-drive after appeals panel vote

ICANN’s post-transition bylaws have only been in effect for a few months, but the board of directors wants to change one of them already.
The board last week voted to create a new committee dedicated to handling Requests for Reconsideration — formal appeals against ICANN decisions.
But because this would change a so-called Fundamental Bylaw, ICANN’s new Empowered Community mechanism will have to be triggered.
The Board Governance Committee, noting that the number of RfR complaints it’s having to deal with has sharply increased due to fights over control of new gTLDs, wants that responsibility split out to be handled by a new, dedicated Board Accountability Mechanisms Committee.
It seems on the face of it like a fairly non-controversial change — RfRs will merely be dealt with by a different set of ICANN directors.
However, it will require a change to one of the Fundamental Bylaws — bylaws considered so important they need a much higher threshold to approve.
This means the untested Empowered Community (which I’m not even sure actually exists yet) is going to get its first outing.
The EC is an ad hoc non-profit organization meant to give ICANN the community (that is, you) ultimate authority over ICANN the organization.
It has the power to kick out directors, spill the entire board, reject bylaws changes and approve Fundamental Bylaws changes.
It comprises four or five “Decisional Participants” — GNSO, the ccNSO, the ALAC, the ASO and (usually) the GAC.
In this case at least three of the five Decisional Participants must approve the change, and no more than one may object.
The lengthy process for the EC approving the proposed bylaws change is outlined here.
I wouldn’t expect this proposal to generate a lot of heated discussion on its merits, but it will put the newly untethered ICANN to the test for the first time, which could highlight process weaknesses that could be important when more important policy changes need community scrutiny.

ICANN’s divorce from the US cost $32 million

The IANA transition cost ICANN a total of $32 million, according to documentation released today.
The hefty bill was racked up from the announcment of the transition in March 2014 until the end of 2016, according to this presentation (pdf).
A whopping $15 million of the total went on lawyers.

Another $8.3 million went on other third-party services, including lobbying, PR and translation.
More than half of the overall expenses — $17.8 million — was incurred in ICANN’s fiscal 2016, which ended last June.

ICANN feeds troll, refuses to censor “rip-off” web site

ICANN’s board has rejected a formal demand that it “take down” the web site RipoffReport.com in what is possibly the strangest Request for Reconsideration case it has considered to date.
The almost 20-year-old site hosts reports from consumers about what they consider to be “rip-offs”. It’s seen its fair share of controversy and legal action over the years.
Somebody called Fraser Lee filed the RfR in December after (allegedly) trying and failing to get the site’s registrar, DNC Holdings (aka Directnic), to yank the domain and then trying and failing to get ICANN Compliance to yank DNC’s accreditation.
The request (pdf) is a rambling, often incoherent missive, alleging that RipoffReport contains “legally proven illegal defamatory, copyright infringing, hateful, suicidal and human rights depriving content” and demanding ICANN “take down the site RIPOFFREPORT.COM AS EXPECTED BY THEIR POLICIES OR RISK BEING SUED AS AN ENDORSER OF CYBER TERRORISM.”
ICANN’s Board Governance Committee has naturally enough rejected (pdf) the request, largely on the grounds that it does not have the authority to police internet content and that it could find no evidence that DNC had breached its contract:

the Requester ultimately seeks to have ICANN assume greater responsibility of policing purportedly illegal activity on the Internet, and attempts to place the burden on ICANN to regulate content on the Internet. That is not ICANN’s role. If content is to be regulated, that review and enforcement falls to institutions charged with interpreting and enforcing laws and regulations around the world, such as law enforcement

In a bizarre twist, the BGC further decided that “Fraser Lee” may not even be the person who filed the original complaints with DNC and ICANN Compliance.
“Fraser Lee, has never initiated a complaint with the ICANN Contractual Compliance department,” the BGC wrote.
A lengthy (and, one imagines, maddening) email thread between DNC’s lawyer and somebody called “Smith”, evidently provided by DNC to ICANN (pdf), appears show that at least two different identities are in play here.
It’s an odd one for sure, but it does have the virtue of getting ICANN’s board on the record again stating that it does not police content.

Trump’s ‘Muslim ban’ draws fire, creates confusion in ICANN community

At least two senior-level ICANN community members, including a new member of its board of directors, have been affected by US President Donald Trump’s controversial travel restrictions, imposed this weekend on the citizens of seven Muslim-majority nations.
The so-called “Muslim ban” has also attracted criticism from other members of the community.
Kaveh Ranjbar, Amsterdam-based chief information officer for RIPE/NCC and an ICANN director, said that he is unable to attend this week’s board retreat in Los Angeles because he holds an Iranian passport.
“I have checked this with ICANN’s general counsel and they have tried an external counsel with expertise in immigration,” Ranjbar told DI. “Their advice was that I might be able to travel but they were not sure. As you know the situation is really fluid and things change real fast.”
“After checking with the airline and looking at similar cases, I decided not to even try, because I did not want to risk deportation or being detained in the US,” he said.
Ranjbar was born in Iran but holds dual Dutch-Iranian citizenship.
He said he will participate remotely in the board retreat, likely until with 3am each day.
“However, the work of ICANN board is no different than any other board, it is mostly free exchange of ideas and discussing and challenging positions, outside of the formal setting of the meetings, that’s how you get a feel on your other colleagues positions and will be informed enough about their positions which will enable you to support or oppose with proper grounds and arguments,” he said. “I will miss that critical part.”
Non-Commercial Users Constituency chair Farzaneh Badiei is also affected. She’s Iranian, but recently relocated to the US on an academic visa.
She told NCUC members that she’s effectively stuck there, unable to attend an intersessional meeting in Iceland or ICANN’s March meeting in Denmark, for fear of not being allowed to return.
“I have been advised to take precautionary measures in light of the current draft executive order that might not allow current visa holders re-entry to the United States,” she said.
ICANN is still evaluating the situation.
“We are still trying to fully understand the potential impact of the President’s Executive Order on our community, Board and staff travelers. We want to ensure ICANN’s continued accessibility and openness,” a spokesperson said on Sunday.
ICANN does have Iranian-born staffers, but I’m not aware that any have reported travel problems as a result of the Trump move.
The travel ban has drawn fire from other related organizations.
Internet Society CEO Kathy Brown wrote that she was “deeply troubled” by the ban, adding:

Not only will the purported bans place an unwarranted burden on people in our organization, it is an anathema to the Internet Society whose values rest firmly on a commitment to an open, globally connected community dedicated to the open, global Internet. We are encouraged by the countries who have rejected the U.S. action this weekend and by the human rights organizations that have stood in solidarity with countless refugees and travelers who were so abruptly halted in entering the U.S.

The chairs of the IETF, IAOC and IAB indicated in a joint statement that they may reconsider holding future meetings in the US:

the recent action by the United States government to bar entry by individuals from specific nations raises concerns for us—not only because upcoming IETF meetings are currently scheduled to take place in the U.S., but also because the action raises uncertainty about the ability of U.S.-based IETF participants to travel to and return from IETF meetings held outside the United States….
Our next meeting is planned for Chicago, and we believe it is too late to change that venue. We recognize, however, that we may have to review our other planned meeting locations when the situation becomes clearer. We are already reviewing what to do as far as location for the next open North American meeting slot.

Meanwhile, the Internet Governance Project’s Milton Mueller blogged:

This has significant implications for Internet governance. Coordination and policy making for a global medium based on cooperation and voluntary standards requires open transnational institutions. Participation in those institutions requires the ability to freely travel. The United States can no longer be considered the leader, either politically or ideologically, of an open global Internet if its own society is mired in protective barriers… What a stroke of good fortune that the prior administration succeeded in freeing ICANN from the U.S. government in its waning months.

The travel ban is said to be “temporary”, lasting just 90 days, but some fear it may evolve into a permanent fixture of US policy.

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.