Panel slaps ICANN in .africa case

A panel of arbitrators had some stern words for ICANN as it handed controversial .africa gTLD applicant DotConnectAfrica another win in its Independent Review Process case.
In a 33-page procedural ruling (pdf) published by ICANN late Friday, the IRP panel disagreed with ICANN’s lawyers on almost every argument they made, siding with DCA instead.
The panel strongly indicated that it believes ICANN has attempted to render the IRP toothless, after losing the first such case against ICM Registry a few years ago.
The ruling means that ICANN’s top executives and board may have to face hostile cross-examination by DCA lawyers, rather than simply filing written statements with the panel.
It also means that whatever the IRP panel ultimately decides will in all likelihood be binding on ICANN.
DCA filed the IRP with the International Center for Dispute resolution after ICANN, accepting Governmental Advisory Committee advice, rejected the company’s application for .africa.
The ICDR panel has not yet ruled on the merits of the case — personally, I don’t think DCA has a leg to stand on — but last week’s ruling is certainly embarrassing for ICANN.
On a number of counts, ICANN tried to wriggle out of its accountability responsibilities, the ruling suggests.
Primarily, ICANN lawyers had argued that the eventual outcome of the IRP case should be advisory, rather than binding, but the panel disagreed.
The panel noted that new gTLD applicants sign away their rights to sue when they apply for a gTLD, meaning IRP is their last form of appeal against rejection.
It also called into question ICANN’s ability to police itself without a binding decision from an independent third party, pointing to previously reported accountability problems (my emphasis):

The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.
Moreover, assuming for the sake of argument that it is acceptable for ICANN to adopt a remedial scheme with no teeth, the Panel is of the opinion that, at a minimum, the IRP should forthrightly explain and acknowledge that the process is merely advisory. This would at least let parties know before embarking on a potentially expensive process that a victory before the IRP panel may be ignored by ICANN.

The decision is the opposite of what the IRP panel found in the ICM Registry case, which was ruled to be “non-binding” in nature.
While deciding that its own eventual ruling will be precedential, the panel said it did not have to follow the precedent from the ICM case, due to changes made to the IRP procedure in the meantime.
ICANN had also argued against the idea of witnesses being cross-examined, but the panel again disagreed, saying that both parties will have the opportunity “to challenge and test the veracity of statements made by witnesses”.
The hearing will be conducted by video ink, which could reduce costs somewhat, but it’s not quite as streamlined as ICANN was looking for.
Not only will ICANN’s top people face a grilling by DCA’s lawyers, but ICANN’s lawyers will, it seems, get a chance to put DCA boss Sophia Bekele on the stand.
I’d pay good money for a ticket to that hearing.

Governments to get more power at ICANN

Governments are to get more power to influence ICANN’s board of directors.
Under a proposal launched late Friday, ICANN plans to make it harder for the board to reject the often-controversial advice of the Governmental Advisory Committee.
Today, the board is able to reject GAC advice with a simple majority vote, which triggers a consultation and reconciliation process.
Following the proposed changes to the ICANN bylaws, the threshold would be increased to a two-thirds majority.
The change is to be made following the recommendations of the Board-GAC Recommendations Implementation Working Group, made up of members of the board and the GAC.
The new rule would bring the GAC into line with the multistakeholder Generic Names Supporting Organization. The ICANN board also needs a two-thirds vote to reject a formal GNSO recommendation.
The differences between the GAC and the GNSO include the lack of detailed industry awareness GAC members regularly demonstrate during their public meetings, and the fact that GAC advice regularly comprises deliberately vague negotiated language that ICANN’s board has a hard time interpreting.
That disconnect may improve in future due to the recent creation of a GAC-GNSO liaison position, designed to keep the GAC up to date with policy goings-on between the thrice-yearly ICANN meetings.
The proposed bylaws change is open for public comment, but appears to be a fait accompli; the board has already said it will use the higher voting threshold if called to make a decision on GAC advice prior to its formal adoption.

Dublin picked for ICANN 54

ICANN had selected Dublin to play host to its 54th public meeting, which will be held in October next year.
According to a blog post from Michele Neylon, CEO of Irish registrar Blacknight, the venue will be the imaginatively named The Convention Centre, Dublin.
The primary sponsor will be INEX, the local internet exchange, he reports.
It will be interesting to see if the Irish government bothers to show up. It’s not a member of the GAC and Neylon has frequently criticized it for taking no interest in ICANN affairs.
The meeting will be held from 18 to 22 October, 2015.
Despite Ireland having only one accredited registrar, Dublin houses the nominal headquarters for a big chunk of the registry side of the industry, largely for tax purposes.
Afilias has been there for over a decade and recently Rightside, the Demand Media spin-off, also relocated its HQ there. A number of smaller new gTLD applicants founded in other countries are also “based” in Dublin.
ICANN still hasn’t named the city for ICANN 53, 2015’s mid-year meeting. I assume it will be in either Asia or Latin America. ICANN 51 is in Los Angeles this October, 52 is in Marrakech next February.
Personally, I’m looking forward to visiting Dublin. Despite what a startling number of you (even people who’ve known me for years!) seem to think, I’m not Irish and I’ve never been to Ireland.

Two more years! Chehade stays at ICANN with $100,000 pay raise

ICANN CEO Fadi Chehade has had his contract renewed for an extra two years with a new pay package worth up to $100,000 more than he was previously getting.
The ICANN board of directors last week approved an extension of his contract, which had not been due to expire until July next year, to June 30, 2017.
Effectively immediately, he’ll receive a new salary of $630,000 a year, with a performance-related bonus of up to $270,000 per year. That’s up 12.5% from his original salary of $560,000 and $240,000 bonus.
ICANN described the compensation as “comparable to similar positions”.
Despite the hefty bump, Chehade is still on a smaller package than his immediate predecessor, Rod Beckstrom, who was on a base salary of $750,000 with $195,000 in bonuses.
By renewing his contract a year early, ICANN avoids the kind of leadership speculation that dogged Beckstrom’s final year in the corner office.
“As we noted in the Board resolution, taking this action will help ensure the stability in leadership that is important for ICANN. It also shows the support and confidence that the Board has in Fadi,” ICANN chair Steve Crocker said in a statement.

Terror victims try to seize five ccTLDs

ICANN is fighting a US court action that could see the ccTLDs of Iran, Syria and Korea being seized by victims of terrorism.
While ICANN has not been sued as such, it’s been named in three “writs of attachment”, which seek to force the organization to hand over control of .ir, .sy, .kp, سور, and ايران.
This audacious attempt to take over three nations’ domains is being attempted by lawyers representing victims of state-sponsored terrorism, reportedly led by Nitsana Darshan-Leitner.
Darshan-Leitner has secured billions of dollars worth of judgments against these states in US courts over the last decade.
But because the states won’t pay up, she’s been getting US courts to seize state-owned US-based assets, such as valuable real estate, instead.
Now her attention has turned to domain names.
The writs against ICANN, issued by a District of Columbia court a month ago, would force ICANN to hand over any assets belonging to Iran, Syria and Korea.
But ICANN says it cannot and should not be made to do so, filing hundreds of pages of court documents yesterday explaining why ccTLDs are not property that can be “attached”.
“Attachment” is a legal term used in the process of transferring assets from debtors to creditors.
In its defense, ICANN argues that allowing the seizure would do nothing less than jeopardize the globally interoperable internet:

First, a ccTLD simply is not “property” subject to attachment. Second, although operating for the benefit of the people of Iran, Syria and North Korea, respectively, the relevant ccTLDs are not “owned” by the defendants or anyone else, for that matter. Third, the .IR, .SY and .KP ccTLDs are not “located” in the District of Columbia or even the United States, and therefore are beyond the reach of Plaintiffs’ Writs of Attachment. Fourth, even if these ccTLDs could be characterized as “property in the United States of the defendants,” this Court would lack jurisdiction over these proceedings, according to the Foreign Sovereign Immunities Act. Fifth, ICANN does not unilaterally have the capability or authority to transfer the .IR, .SY or .KP ccTLDs to Plaintiffs. Finally, a forced transfer of the .IR, .SY and .KP ccTLDs would destroy whatever value may exist in these ccTLDs, would wipe out the hundreds of thousands of second-level domain names registered therein by various individuals, businesses and charitable organizations, and could jeopardize the single, global, interoperable structure the Internet.

“While we sympathize with what plaintiffs may have endured, ICANN’s role in the domain name system has nothing to do with any property of the countries involved,” ICANN general counsel John Jeffrey said in a statement.
In its motions to quash the writs, ICANN describes how it has no contractual relationship and few dealings with the three ccTLD managers in question and how it has received no money from them.
It goes on to describe its relationship to the DNS root zone and the US Department of Commerce
The motion then compares domain names to street addresses and not “property”:

a ccTLD can be thought of as a zip code. That zip code may encompass many different addresses, and those addresses in turn may correspond to certain places on the Internet that people can access, such as websites. But the street address itself is not property, nor is the zip code in which the street address exists…To the extent a ccTLD is capable of a legal definition, it is a collection of technical and administrative services, rather than property

There’s a bunch of US case law that states second-level domain names are not property, which ICANN draws on heavily in its motion.
I’m not going to dwell on the legal issues at stake here too much, but the case is politically, to use an inappropriate word, explosive.
If ICANN were to receive a court order, instructing it to transfer ownership of .ir to Darshan-Leitner’s group, and had no option but to comply, we’re looking at a major international political incident.
Under ICANN’s current IANA arrangement, ICANN-recommended changes to ccTLD management are handled by Verisign, but only with the consent of the US National Telecommunications and Information Administration.
The US Department of Commerce, of which NTIA is a part, would have to give its approval to the transfer of Iran’s ccTLD from an Iranian institution to an Israeli entity.
That, at a time when US-Iranian relations are softening, in light of the new ISIS crisis in Iraq.
It’s a recipe for putting the IANA contract at the center of what can mildly be described as a “political incident” unlike anything the internet has seen to date.
While the US government has a role in ccTLD redelegations today, due to its membership of the DNS root zone triumvirate, it has announced its intent to step away from IANA stewardship.
The NTIA will be replaced, possibly as early as September 2015, by a mechanism that the ICANN community has started to develop.
If we can assume that the US government’s current role may prove to be a buffer between the US courts and potentially devastating forced ccTLD redelegations, it’s not at all clear that the NTIA-replacement mechanism would hold the same kind of political clout.
Would an IANA without US stewardship be more susceptible to crazy US court rulings?
If the US court asserts its authority over the DNS root zone, by ordering the transfer of a ccTLD to a private entity, all ccTLD registries would have a right to be very nervous indeed.
The case also highlights the fact that ICANN is subject to US court jurisdiction — something likely to remain after the IANA stewardship transition — which also makes some nations very nervous.
Rumors have been floating around for a while that ICANN would like to move its headquarters and primary legal structure to Switzerland — it already has an office and a legal presence there — and this case will certainly provide ammunition for those who would like to see such a move happen.

ICANN looking for chief registrant advocate (but there’s a catch)

ICANN is looking for a Registrant Services Director — somebody to advocate for the rights of registrants within the organization.
It’s a paid staff position, reporting directly to Global Domains Division president and ICANN number two Akram Atallah, not a part of the volunteer community.
The catch is that the newly created position is going to be based in Istanbul, Turkey, at one of ICANN’s three hub offices, which is probably going to limit the pool of available candidates.
“The right person for the role will build a team to develop and maintain a range of services and activities to support the needs of Domain Name Registrants,” the job ad states.
“It involves participation in a number of cross-organizational projects in areas such as registrant rights, contract interpretations and compliance, operations, legal policy definitions and implementation with a strong focus on multi-stakeholder collaboration,” it goes on.
I believe it will be the first time ICANN has had an executive dedicated to looking after the interests of registrants on its staff.
Limiting the pool of candidates further, ICANN is looking for somebody with eight to 12 years’ experience in a relevant role within the domain name industry.
An MBA or an advanced degree in engineering would be a plus, the ad states.

ccTLD anger over IANA group “capture”

Operators of dozens of ccTLDs are said to be furious that they don’t have representation on the group coordinating the transition of the IANA functions from US oversight.
The IANA Stewardship Transition Coordination Group (ICG) has been “captured” by members of ICANN’s country-code Names Supporting Organization, which does not represent all ccTLDs, according to ccTLD sources.
While the ccNSO is the official body representing ccTLDs within ICANN, many refuse to participate.
Some registries fear that signing up to ICANN and its rules may one day lead to them losing their delegations, while others have sovereignty or liability concerns.
It is believed that while 151 ccTLDs participate in the ccNSO, 104 do not.
None of these 104 are represented on the new ICG, which met for the first time to draft a charter in London last Thursday and Friday.
The ICG is tasked with holding the pen when the community writes a proposal for replacing the US government in the management of the DNS root zone and other IANA functions.
The ccTLD community was given four seats on the ICG, out of a total of 27. All four seats were taken by ccNSO members, picked by a five-person selection committee that included one non-ccNSO member.
I gather that about 20 non-ccNSO ccTLDs are up in arms about this state of affairs, which they believe has seen them “proactively excluded” from the ICG.
Some concerns originate from operators of ccTLDs for dependent territories that may face the risk of being taken over by governments in future.
Because IANA manages the DNS root zone, the transition process may ultimately impact ccTLD redelegations.
But the loudest voice, one of only two speaking on the record so far, is India’s government-established National Internet Exchange of India, which runs .in.
Dr Govind (apparently he doesn’t use his first name), CEO of NIXI, said in a statement last week:

Clearly the process has already been captured by a subset of the ccTLD community. The selection process controlled by the ccNSO resulted in all four seats being assigned to their members. A significant section of the ccTLD Registry operator community do not share the objectives of the ccNSO membership are now excluded from the process.

Balazs Martos, registry manager of Hungary’s .hu, added:

I am very concerned that the ccNSO seem to feel they speak for the whole ccTLD Community when dealing with every IANA matter. They do not, .HU is an IANA service user, but we are not a member of the ccNSO.

The joint statement also raises concerns about “cultural diversity”, which seems like a cheap move played from a position in the deck close to the race card.
The ccTLD representation on the ICG comprises the UK, New Zealand, China and Nigeria.
The chair of the ccNSO, .ca’s Byron Holland, has stated that the way the these four were selected from the 12 candidates (two of whom were non-ccNSO) was a “very difficult task”.
The selection committee had to consider factors such as geography, registry size, candidate expertise and available time, governance structure and business model, Holland said.
Blogging last week, addressing Govind’s concerns if not directly acknowledging them, he wrote:

Given the criteria we had to balance, there were no ‘reserved’ seats for any one group. The fact is four seats only allowed us to ensure some – not all – of the criteria were met. The discussion was difficult and the outcome was not unanimous. We did, however, reach consensus. In paring this list down to the final four, we balanced the selection criteria – balance being the keyword here. Geographic diversity is a good example of this – while there are five ICANN-defined geographic regions, we only had four seats on the Coordination Committee.
…
Did we meet the all of the criteria set out at the beginning of the process? No, but given the constraints we were facing – four seats to represent a community as large and diverse as ccTLDs – I have no hesitation in endorsing each of them for their ability to be representative of the global ccTLD community – both ccNSO members and non-members – effectively.

ICANN puts porn gTLDs on hold for no good reason?

In a decision that seems to have come out of nowhere, ICANN has effectively put bids for three porn-themed new gTLDs on hold.
In a June 21 meeting, the board’s New gTLD Program Committee discussed .adult, .sex and .porn, calling them “sensitive strings”.
While it passed no resolution, I understand that ICANN legal staff is delaying the signing of contracts for at least one of these gTLDs while the NGPC carries out its talks.
It’s a surprising development, given that the three strings are not subject to any Governmental Advisory Committee advice, are not “Community” applications, and have not been formally objected to by anyone.
The report from the NGPC meeting acknowledges the lack of a GAC basis for giving the strings special treatment (emphasis added):

The Committee engaged in a discussion concerning applications for several adult-oriented strings in the current round of the New gTLD Program, including .ADULT, .PORN, and .SEX. The applications propose to serve the same sector as the .XXX sponsored TLD. Staff noted that the applications were not the subject of GAC advice, or any special safeguards, other the safeguards that are applicable to all new gTLDs. The Committee considered how the safeguards in the new gTLD Program compare to the safeguards that were included in the .XXX Registry Agreement. The Committee requested staff prepare additional briefing materials, and agreed to discuss the matter further at a subsequent meeting.

This begs the question: why is ICANN giving .porn et al special treatment?
What’s the basis for suggesting that these three strings should be subject to the same safeguards that were applied to .xxx, which was approved under the 2003 sponsored gTLD round?
.porn, .sex and .adult were were applied for under the 2012 new gTLD program, which has an expectation of predictability and uniformity of treatment as one of its founding principles.
Who decided that .sex is “sensitive” while .sexy is not? On what basis?
Is it because, as the NGPC report suggests, that the three proposed gTLDs “serve the same sector” as .xxx?
That wouldn’t make any sense either.
Doesn’t .vacations, a contracted 2012-round gTLD, serve the same sector as .travel, a 2003-round sponsored gTLD? Why wasn’t .vacations subject to additional oversight?
Is it rather the case that the NGPC is concerned that ICM Registry, operator of .xxx, has applied for these three porn strings and proposes to grandfather existing .xxx registrants?
That also wouldn’t make any sense.
.sex has also been applied for by Internet Marketing Solutions, a company with no connection to .xxx or to the 2003 sponsored gTLD round. Why should this company’s application be subject to additional oversight?
And why didn’t .career, which “serves the same sector” as the sponsored-round gTLD .jobs and was applied for by the same guys who run .jobs, get this additional scrutiny before it signed its contract?
It all looks worryingly arbitrary to me.

US winemakers rebel against their government

Groups representing thousands of US winemakers have come out against .wine and .vin, bringing their government’s position on the two proposed new gTLDs into question.
Seven regional associations, representing close to 2,000 wineries, issued a statement last night raising “strong objections” to the gTLDs with “non-existent to grossly insufficient safeguards”.
The joint statement says:

If granted to unscrupulous bidders, second-level domain names such as napavalley.wine or wallawalla.wine could be held in perpetuity by a company or individual that has never seen a vineyard, cultivated fine wine grapes or made a single bottle of wine.

It’s the first mass objection from US winemakers, but they join colleagues from France, Spain and other European Union nations in their opposition to a .wine that does not respect geographic indicators (GIs).
It also makes the US delegation to ICANN’s Governmental Advisory Committee look rather out of touch with the very companies it professes to be looking out for.
At the ICANN 50 meeting in London last week, US rep Suzanne Radell told the GAC:

The three U.S. wineries that our colleagues in Europe have cited as being privy to the exchanges between the European wine industries and the applicants are, in fact, just three U.S. wineries. If I may emphasize, the United States has thousands and thousands of wineries who are quite interested in this matter and do not support the European model of GI protection. So let’s just please put that to bed.

The US winery groups now objecting comprise almost 2,000 wineries. According to Wikipedia, the US has fewer than 3,000 wineries.
We’re looking at a two-thirds majority objection from the US wine-making industry here.
“The coalition of American quality wine regions representing nearly 2,000 U.S. wineries clearly contradicts Radell’s testimony in London on June 22,” the groups said.
The groups also have Californian congresspeople Anna Eshoo and Mike Thompson on their side. As we reported yesterday, Eshoo has already written to ICANN to urge it to kill off .wine.
The big questions are: will this be enough to change the position the US takes to the GAC in future, and will that help the GAC find consensus on anti-.wine advice?
Australia and Canada have also been vocal opponents of the European demands in the past. They’d need to change their minds too, in order for the GAC to find a new consensus.
Without a GAC consensus, the .wine and .vin applicants have little to worry about.

Democrat congressman sides with France on .wine

US Representative Anna Eshoo has written to ICANN’s top brass to express “deep concerns” about the .wine and .vin new gTLDs and urge that they be permanently killed off.
In a letter (pdf) to CEO Fadi Chehade, Eshoo wrote:

it’s my understanding that the .wine and .vin gTLDs have been met with fierce opposition from the wine industry, both here in the US and around the world. Given these concerns, coupled with the complexities of reaching agreement on Geographic Indications (GIs), I urge you to advocate for the .wine and .vin gTLDs to be permanently withdrawn from consideration.

Eshoo, a Democrat, is breaking rank with the official position of the Obama administration on this, which is that no special treatment is warranted for the two wine-related gTLDs.
Europe, on the other hand, is vehemently opposed to the introduction of either without strong protection for GIs.
At ICANN 50 in London last week the European Commission and France led the charge against approval of the gTLDs, with the Commission even floating the idea of legal action at one point.
France, meanwhile, seems ready to throw ICANN’s ambitions for independence under a bus in order to get what it wants.
Eshoo is ranking member of the House Communications and Technology Subcommittee, which recently passed the DOT-COM Act over her protestations that it was “embarrassing”.
She also represents the Silicon Valley area of northern California, which is known for its wineries.
While a handful of US winemakers do have a decidedly European attitude to GI protections, the US Governmental Advisory Committee delegation last week said that only a few out of “thousands” agree with France.