Judge throws out DotConnectAfrica’s case against ZACR

South African registry ZACR did not engage in a fraudulent conspiracy with ICANN to get its .africa gTLD application approved, a court ruled yesterday.
The California judge in the case of DotConnectAfrica vs ICANN and ZACR threw out all of DCA’s claims against ZACR, approving ZACR’s motion to dismiss.
The judge said DCA had failed to make claims for fraud, contract intereference and unfair competition.
He also threw out DCA’s demand for ZACR’s .africa Registry Agreement to be scrapped.
The case is not over, however.
DCA’s claims against ICANN still stand and ICANN, perhaps regrettably, withdrew its own motion to dismiss the case weeks ago. The case still looks like heading to trial.
DCA reckons ICANN, ZACR, independent evaluator InterConnect Communications, and the Governmental Advisory Committee improperly ganged up on it, in breach of its new gTLD application contract.
The judge has already ruled that the litigation waiver DCA signed when it applied for .dotafrica .africa may be unenforceable.
He also based a decision to give DCA’s claims the benefit of the doubt on a huge misunderstanding of the facts, which he has yet to address publicly.
You can read the judge’s latest order here (pdf).
Under an injunction DCA won, .africa cannot be delegated until the case is resolved.

NTIA gives nod to IANA transition

The US National Telecommunications and Information Administration has formally thrown its weight behind the community-led proposal that would remove the US government, itself in effect, from DNS root oversight.
Assistant secretary Larry Strickling held a press conference this afternoon to confirm the hardly surprising development, but dodged questions about a Republican move to scupper the plan in Congress.
The IANA transition plan, which was developed by the ICANN community over about two years, meets all the criteria NTIA had set out in its surprise 2014 announcement, Strickling confirmed.
Namely, NTIA said in a press release that the the plan would:

• Support and enhance the multistakeholder model;
• Maintain the security, stability, and resiliency of the Internet DNS;
• Meet the needs and expectations of the global customers and partners of the IANA services; and
• Maintain the openness of the Internet.

Probably more importantly, NTIA agrees with everyone else that the plan does not replace NTIA’s role with more government meddling.
US Sen. Ted Cruz and Rep. Sean Duffy see things differently. They yesterday introduced the Protecting Internet Freedom Act, which would stop the transition going ahead.
Strickling said that NTIA has been talking to Congress members about the transition, but declined to “speculate” about the new bill’s likelihood of success.
“We’ve been up on the Hill doing briefings and will continue to do so with any member that wants to talk to us,” he said.
Currently, NTIA is forbidden by law from spending any money on the transition, but that prohibition expires (unless it is renewed) at the end of the current federal budget cycle.
The plan is to carry out the transition after that, Strickling said.
The current IANA contract expires September 30. It may be extended, depending on how quickly ICANN and Verisign proceed on their implementation tasks.

Cruz-Duffy bill would put brakes on IANA transition

America’s continuing unique oversight role in the DNS root management system, fuck yeah!
That’s basically the takeaway from a new bit of proposed US legislation, put forward by Sen. Ted Cruz and Rep. Sean Duffy in both houses of Congress yesterday.
The two Republican Congressmen have proposed the inappropriately named Protecting Internet Freedom Act, which is specifically designed to scupper the IANA transition at the eleventh hour.
PIFA would prevent the National Telecommunications and Information Administration from backing away from its role in the DNS root management triumvirate.
It’s supported, ironically, by a bunch of small-government right-wing think tanks and lobby groups.
If the bill is enacted, NTIA would need a further act of Congress in order to cancel or allow to expire its current IANA functions contract with ICANN
The bill (pdf) reads:

The Assistant Secretary of Commerce for Communications and Information may not allow the responsibility of the National Telecommunications and Information Administration with respect to the Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the performance of the Internet Assigned Numbers Authority functions, to terminate, lapse, expire, be cancelled, or otherwise cease to be in effect unless a Federal statute enacted after the date of enactment of this Act expressly grants the Assistant Secretary such authority.

The bill also seeks to ensure that the US government has “sole ownership” of the .gov and .mil TLDs “in perpetuity”.
These ownership rights are not and have never been in question; the inclusion of this language in the bill looks like a cheap attempt to stir up Congresspeople’s basest jingoistic tendencies.
A Cruz press release said the IANA transition “will allow over 160 foreign governments to have increased influence over the management and operation of the Internet.”
Duffy added:

President Obama wants to hand over the keys to the Internet to countries like China and Russia. This is reckless and absurd. The governments of these countries do not value free speech. In fact, they censor the Internet and routinely repress and punish political dissidents. They cannot be trusted with something as fundamental to free speech as a free and open Internet.

It’s unfiltered scaremongering.
No country — not China, Russia, the US nor any other government — gets increased powers under the IANA transition proposal, which was painstakingly crafted by, and is now supported by, pretty much all community stakeholders over two years.
In fact, governmental power is significantly curtailed under the proposal.
Post-transition, the Governmental Advisory Committee’s current voting practice, which essentially requires unanimity, would be enshrined in ICANN’s bylaws.
If the GAC came to ICANN with advice that did not have consensus — that is, some governments formally objected to it — ICANN would be able to reject it much more easily than it can today.
The one area where the GAC does get a new role is in the so-called “Empowered Community”, a new concept that will enter the ICANN bylaws post-transition.
The Empowered Community would be a non-profit legal entity formed by the ICANN community in the exceptional event that the ICANN board goes rogue and starts doing really egregious stuff that nobody wants — for example, introducing Draconian policy regulating freedom of speech.
The EC would have the power to kick out the ICANN board members of its choice, reject the ICANN budget, throw out proposed bylaws amendments and so on. As far as ICANN is concerned, the EC would be God.
Its members, or “Decisional Participants” would be the GNSO, the ccNSO, the ALAC, the ASO and the GAC.
The fact that the GAC has a seat at the EC table is the straw that Cruz, Duffy and co grasp at when they talk about governments getting increased power in a post-transition ICANN.
But the GAC’s voice is equal to those of the other four participants, and the GAC is not allowed a vote on matters stemming from ICANN’s implementation of consensus GAC advice.
In other words, the only way Cruz’s boogeymen governments would ever get to push through a censorship policy would be if that policy was also supported by all the other governments or by the majority of the diverse, multi-stakeholder ICANN community.
The arguments of Cruz and Duffy are red herrings, in other words.
Not only that, but the US record on attempted censorship of the DNS root is hardly exemplary.
While it’s generally been quietly hands-off for the majority of the time ICANN has had its hand on the rudder, there was a notable exception.
The Bush-era NTIA, following a letter-writing campaign by the religious right — Bible-thumping Cruz’s base — exerted pressure on ICANN to reject the proposed porn-only .xxx gTLD.
So who’s the real threat here, Red China or Ted Cruz, the man who tried to ban the sale of dildos in Texas?
The Protecting Internet Freedom Act is obviously still just a bill, but Republicans still control both houses of Congress so it’s not impossible that the tens of thousands of hours the ICANN community has put into the IANA transition could be sacrificed on the altar of embarrassing the President, who is probably Kenyan anyway.

ICANN to publish board meeting transcripts

In a surprising move towards further transparency, the ICANN board of directors has decided to start publishing transcripts and possibly recordings of its meetings.
It passed a resolution during a meeting in Amsterdam this week stating:

the Board directs the President and CEO, or his designee(s), to work with the Board to develop a proposed plan for the publication of transcripts and/or recordings of Board deliberative sessions, with such plan to include an assessment of possible resources costs and fiscal impact, and draft processes to: (i) ensure the accuracy of the transcript; and (ii) for redaction of portions of the transcript that should be maintained as confidential or privileged.

Transcription services can be picked up dirt cheap, so I can’t see money getting in the way of this proposal becoming a reality.
A question mark of course hangs over the “confidential or privileged” carve-out, of course. ICANN is sometimes over-generous with what it considers redactable material.
Still, it’s great news for the ICANN community, which has been calling for greater board transparency for years.
When I started covering ICANN back in 1999, board sessions at the then four-times-a-year public meetings were conducted in the open; all the thinking was done aloud.
At some point in the early 2000s that stopped, however, and the board’s public sessions became a case of rubber-stamping resolutions that had already been debated behind closed doors.
Minutes, staff-prepared briefing materials and broad-stroke narrative reports have been published, but they give limited insight into the depth of the discussions.
Chair Steve Crocker has even stated in recent years that its goal was to make these public sessions “as boring as possible”.
That’s obviously no good for those of us who’d like to know how top-level decisions at ICANN actually get made.
The plan is for new CEO Goran Marby, who starts on Monday, to come up with a proposal before the Helsinki meeting next month, with a view to start publishing transcripts not long thereafter

ICANN diverts from Puerto Rico to India to avoid Zika

ICANN has confirmed that its 57th public meeting will not be held, as originally planned, in Puerto Rico.
Instead, it is asking community members to instead head to Hyderabad, India, this November.
Those Las Vegas rumors turned out not to be true. However, on the up-side, those Las Vegas rumors turned out not to be true!
The decision was to relocate made to the a “state of emergency” being declared in Puerto Rico due to the Zika virus.
Zika is spread by mosquitoes and male sexual partners and can cause devastating birth defects in kids.
Latest figures from the US Center for Disease Control put infections in US territories at 701, three of whom were travelers.
ICANN said in a blog post this evening:

This decision was based on available research and information and the fact that Puerto Rico has declared a state of emergency due to the ongoing Zika virus outbreak. We believe that the Zika virus poses a significant enough threat that we need to postpone going to Puerto Rico for the health and safety of our community and our ICANN team, just as we had to postpone ICANN52 and relocate from Marrakech to Singapore due to the Ebola virus outbreak in 2014.

It’s the second of this year’s meetings to be relocated due to Zika. June’s Panama meeting has been moved to Helsinki.
ICANN said that the new venue for ICANN 57, which takes place from November 3 to 9 this year, is the Hyderabad International Convention Centre.
It’s said that ICANN will take a seven-figure hit to its bank balance in order to cancel the PR meeting.

ICANN pimps new sexual harassment rules

ICANN has proposed new anti-harassment guidelines for its community that would ban “unwelcome hostile or intimidating behavior”.
It wants your comments on the changes to its longstanding “Expected Standards of Behavior” document, which applies to both its in-person meetings and online discussions and mailing lists.
The proposed addition to the document reads like this:

Respect all members of the ICANN community equally and behave according to professional standards and demonstrate appropriate behavior. ICANN strives to create and maintain an environment in which people of many different backgrounds and cultures are treated with dignity, decency, and respect. Specifically, participants in the ICANN process must not engage in any type of harassment. Generally, harassment is considered unwelcome hostile or intimidating behavior — in particular, speech or behavior that is sexually aggressive or intimidates based on attributes such as race, gender, ethnicity, religion, age, color, national origin, ancestry, disability or medical condition, sexual orientation, or gender identity.

The definition of harassment has been borrowed almost directly from the Internet Engineering Task Force’s policy on harassment, which was signed off in 2013.
ICANN has added the words “ethnicity” and “medical condition” to the IETF’s list of protected characteristics, but has not included the IETF’s list of examples:

the use of offensive language or sexual imagery in public presentations and displays, degrading verbal comments, deliberate intimidation, stalking, harassing photography or recording, inappropriate physical contact, and unwelcome sexual attention.

The changes were prompted by a recent allegation of sexual harassment at an ICANN meeting which divided the community on whether the alleged incident amounted to sexual harassment or not.
ICANN’s Ombudsman, Chris LaHatte, concluded that whatever took place “cannot be considered serious”, but he did not make a formal finding.
LaHatte has already endorsed the proposed change to the expected standards document.
It does not seem unreasonable to me, at first glance, either.
What do you think? ICANN has opened a public comment period that closes June 25, to find out.

With Zika fears, is ICANN dissing Latin America?

Internet organizations in Latin America are pissed off with ICANN for cancelling its Panama public meeting and potentially cancelling its Puerto Rico meeting.
They said that the cancellations will have “a direct negative impact on the participation of our communities in the region, since they view these meetings as favorable opportunities to get together for the development of their respective work agendas, leveraging geographic and cultural proximity.”
“This has a direct effect on the development of the Internet in our regions,” they added.
The comments came in a May 5 letter (pdf) from the Latin America and Caribbean Internet Addresses Registry (LACNIC) the Latin America and Caribbean TLD Association (LACTLD) and the Latin America and Caribbean Association of Internet Exchange Points (LAC-IX).
Together, they represent IP addressing, ccTLDs and internet exchanges in the region.
ICANN recently switched its ICANN 56 venue from Panama to Finland due to the Zika virus outbreak in the region.
It is also expected to relocate ICANN 57 from Puerto Rico to Las Vegas, for the same reason, though no decision has yet been made.
The letter claims that the LAC region is being under-served in terms of ICANN meeting time.
While ICANN’s goal is to rotate its meetings through its five regions, the letter says that the LAC region only gets one out of six meetings.
But is the region getting fewer meetings than elsewhere? I don’t think the numbers support that assertion.
This is how all the meetings to date break down by ICANN region.
[table id=40 /]
It’s clear that LAC isn’t getting singled out in particular for a dissing, no more than Africa or North America.
In fact, LAC may be doing better than North America, due to the weird way ICANN assigns countries to regions.
The Caribbean island of Puerto Rico (where ICANN met in 2007) counts as North America as far as ICANN is concerned, due to its status as a US territory.
ICANN counts Mexico (where it met in 2009), which is geographically North American, as a LAC nation for some reason.
But the three organizations signing this letter all count both Mexico and Puerto Rico as LAC nations. By that definition, they’ve had 11 meetings to North America’s nine, placing LAC in the middle of the table with exactly one out of every five meetings taking place there.
ICANN chair Steve Crocker did not dissect the numbers in his reply (pdf) yesterday, instead focusing on sympathizing with the LAC groups’ concerns and pointing out that finding suitable locations for ICANN meetings is extremely tricky.
“On rare occasions, due to events outside ICANN’s control, we face challenges sufficiently severe that we feel we cannot proceed with meetings in the venue we have planned,” Crocker wrote.
He continued: “[I]t is our understanding that the Zika virus poses a serious threat to human health. We have consulted extensively on risks and considered whether under the circumstances we can hold an efficient and safe meeting. In this instance we have decided this is a serious risk and decided to go to an alternate venue for the safety of our community.”

.shop lawsuit falling to pieces

Commercial Connect’s lawsuit against ICANN appears to be on its way out, as ICANN claims the .shop applicant has “abandoned” the case.
The company sued ICANN in January in an attempt to prevent .shop gTLD being sold off via an ICANN last-resort auction.
It failed, and the auction raised a $41 million winning bid from GMO Registry.
It transpired that the company didn’t bother telling its lawyer that it had signed an agreement not to sue when it applied for .shop, and the lawyer jumped ship less than two weeks after the complaint was filed.
The lawyer told the court the waiver had been “buried among thousands and thousands of documents on a USB drive” and that he hadn’t noticed it before filing the suit.
In a court filing (pdf) yesterday, ICANN said that Commercial Connect had failed to secure a new lawyer, had failed to formally serve ICANN with the complaint, and had missed its April 25 deadline to argue against ICANN’s motion to dismiss the case.
For these reasons, it said, the case should be chucked.
Commercial Connect applied for .shop in 2000 and again in 2012 and has used every appeals mechanism and legal tool at its disposal in order to disrupt competing bids.
GMO’s .shop is currently in pre-delegation testing.

Burr to replace Tonkin on ICANN board

ICANN lifer Becky Burr is to replace Bruce Tonkin on the ICANN board of directors when his term expires in November.
She’ll take the seat reserved for the Contracted Parties House of the Generic Names Supporting Organization, following a vote by registries and registrars a few weeks ago.
Tonkin, CTO of Aussie registrar Melbourne IT, has held the seat for the last nine years. He’s limited to three consecutive three-year terms under ICANN bylaws.
Burr, a lawyer by trade, is currently chief privacy officer at TLD registry Neustar, a position she has held since 2012.
Before that, she was a partner at the law firm Wilmer Hale.
But way back in 1998, in a senior role at the US National Telecommunications and Information Administration, she was one of the key people responsible for ICANN’s creation under the Clinton administration.

It’s open season on ICANN as judge rules new gTLD applicants CAN sue

DotConnectAfrica has won a California court ruling that will allow it to continue suing ICANN over its twice-rejected .africa gTLD application.
District judge Gary Klausner ruled yesterday that the litigation waiver all applicants had to sign when they applied may be unenforceable.
“The Court finds substantial questions as to the Release, weighing toward its unenforceability,” he wrote (pdf).
California law says that such waivers cannot stop people being sued for fraud, and fraud is what DCA is alleging, he explained.

DCA alleges that ICANN intended to deny DCA’s application after the IRP proceeding under any pretext and without a legitimate reason.
…
The evidence suggests that ICANN intended to deny DCA’s application based on pretext. Defendants have not introduced any controverting facts. As such, the Court finds serious questions regarding the enforceability of the Release due to California Civil Code § 1668.

The judge granted DCA’s request for a preliminary injunction that will prevent it from delegating .africa to successful applicant ZACR.
ZACR has the backing of the African Union Commission and, per ICANN rules, over 60% of the governments in Africa.
DCA applied for .africa with no government support, but with an AUC letter of support than had already been retracted. The company claims that the AUC was not allowed to withdraw its endorsement under ICANN rules.
But it doesn’t seem to matter what the governments of Africa want. Klausner wrote:

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

Sorry Africa, no gTLD for you yet!
The case continues…