“Cyberflight” rules coming to UDRP next July

It will soon be much harder for cybersquatters to take flight to another registrar when they’re hit with a UDRP complaint.
From July 31 next year, all ICANN-accredited registrars will be contractually obliged to lock domain names that are subject to a UDRP and trademark owners will no longer have to tip off the registrant they’re targeting.
Many major registrars lock domain names under UDRP review already, but there’s no uniformity across the industry, either in terms of what a lock entails or when it is implemented. Under the amended UDRP policy, a “lock” is now defined as:

a set of measures that a registrar applies to a domain name, which prevents at a minimum any modification to the registrant and registrar information by the Respondent, but does not affect the resolution of the domain name or the renewal of the domain name.

Registrars will have two business days from the time they’re notified about the UDRP to put the lock in place.
Before the lock is active, the registrants themselves will not be aware they’ve been targeted by a complaint — registrars are banned from telling them and complainants no longer have to send them a copy of the complaint.
If the complaint is dismissed or withdrawn, registrars have one business day to remove the lock.
Because these change reduce the 20-day response window, registrants will be able to request an additional four calendar days (to account for weekends, I assume) to file their responses and the request will be automatically granted by the UDRP provider.
The new policy was brought in to stop “cyberflight”, a relatively rare tactic whereby cybersquatters transfer their domains to a new registrar to avoid losing their domains.
The policy was approved by the Generic Names Supporting Organization in August last year and approved by the ICANN board a month later. Since then, ICANN staff has been working on implementation.
The time from the first GNSO preliminary issue report (May 27, 2011) to full implementation of the policy (July 31, 2015) will be 1,526 days.
You can read a redlined version of the UDRP rules here (pdf).

Judge blocks seizure of Iran’s ccTLD

ICANN has won a court battle, and avoided a major political incident, over an attempt by terrorism victims to seize ccTLDs belonging to Iran, Korea and Syria.
A District of Columbia judge ruled this week that while ccTLDs may be a form of “property” under the law, they’re not “attachable” property.
Attachment is a legal concept used when creditors attempt to seize assets belonging to debtors.
The ruling overturns a request by a group of terrorism survivors, led by attorney Nitsana Darshan-Leitner, to have .ir, .sy, .kp, سور, and ايران. transferred to them in lieu of payment of previous court rulings.
Darshan-Leitner has previously secured US court judgments amounting to hundreds of millions of dollars against the three nations. Because the nations have not paid these penalties, she’s been using the courts to seize state-owned assets in the US instead.
But US District Judge Royce Lamberth ruled (pdf) earlier this week:

the country code Top Level Domain names at issue may not be attached in satisfaction of plaintiffs’ judgments because they are not property subject to attachment under District of Columbia law.

However, he added in a footnote:

But the conclusion that ccTLDs may not be attached in satisfaction of a judgment under District of Columbia law does not mean that they cannot be property. It simply means that they are not attachable property within this statutory scheme.

Drawing on “sparse” case law, Lamberth’s rationale appears to be that domain names are not a product, they’re a service. He wrote:

The ccTLDs exist only as they are made operational by the ccTLD managers that administer the registries of second level domains within them and by the parties that cause the ccTLDs to be listed on the root zone file. A ccTLD, like a domain name, cannot be conceptualized apart from the services provided by these parties. The Court cannot order plaintiffs’ insertion into this arrangement.

The ruling, which may of course be challenged by the plaintiffs, helps ICANN and the US government avoid a huge political embarrassment at a time when the links between the two are being dissolved and relations with Iran are defrosting.

Ebola 1 – ICANN 0 as Marrakech dumped for Singapore

Ebola has claimed its first Moroccan victim, in the form of ICANN 52.
The organization confirmed overnight that its next public meeting will not be held in Marrakech next February after all.
Instead, the ICANN community will head to Singapore, and the now-familiar halls of the Raffles Convention Center.
ICANN had previously said it was reconsidering Marrakech due to the worry of African travel restrictions in light of the Ebola virus, which has infected over 13,000 people in West Africa.
While Morocco, thousands of kilometers away, has not recorded any cases, there’s concern that large international gatherings, such as the African Cup of Nations or ICANN 52, could import the disease.
ICANN did not mention Ebola in its announcement today, however.
Instead, it said that is relocating the meeting to Singapore due to the overworked community’s desire to stick to its three-meetings-per-year schedule.
It will head to Marrakech in early 2016 instead.
The Singapore meeting will be held on the same dates — February 8 to 12 — at a location that will be familiar to regular ICANN travelers. ICANNs 41 and 49 have been held there in the last few years.

For only the second time, ICANN tells the GAC to get stuffed

ICANN’s board of directors has decided to formally disagree with its Governmental Advisory Committee for what I believe is only the second time in the organization’s history.
In a letter to new GAC chair Thomas Schneider today, ICANN chair Steve Crocker took issue with the fact that the GAC recently advised the board to cut the GNSO from a policy-making decision.
The letter kick-starts a formal “Consultation Procedure” in which the board and GAC try to reconcile their differences.
It’s only the second time, I believe, that this kind of procedure — which has been alluded to in the ICANN bylaws since the early days of the organization — has been invoked by the board.
The first time was in 2010, when the board initiated a consultation with the GAC when they disagreed about approval of the .xxx gTLD.
It was all a bit slapdash back then, but the procedure has since been formalized somewhat into a seven-step process that Crocker outlined in an attachment to his letter (pdf) today.
The actual substance of the disagreement is a bit “inside baseball”, relating to the long-running (embarrassing, time-wasting) saga over protection for Red Cross/Red Crescent names in new gTLDs.
Back in June at the ICANN 50 public meeting in London, the GAC issued advice stating:

the protections due to the Red Cross and Red Crescent terms and names should not be subjected to, or conditioned upon, a policy development process

A Policy Development Process is the mechanism through which the multi-stakeholder GNSO creates new ICANN policies. Generally, a PDP takes a really long time.
The GNSO had already finished a PDP that granted protection to the names of the Red Cross and Red Crescent in multiple scripts across all new gTLDs, but the GAC suddenly decided earlier this year that it wanted the names of 189 national Red Cross organizations protected too.
And it wasn’t prepared to wait for another PDP to get it.
So, in its haste to get its changing RC/RC demands met by ICANN, the GAC basically told ICANN’s board to ignore the GNSO.
That was obviously totally uncool — a slap in the face for the rest of the ICANN community and a bit of an admission that the GAC doesn’t like to play nicely in a multi-stakeholder context.
But it would also be, Crocker told Schneider today, a violation of ICANN’s bylaws:

The Board has concerns about the advice in the London Communiqué because it appears to be inconsistent with the framework established in the Bylaws granting the GNSO authority to recommend consensus policies to the Board, and the Board to appropriately act upon policies developed through the bottom-up consensus policy developed by the GNSO.

Now that Crocker has formally initiated the Consultation Procedure, the process now calls for a series of written and face-to-face interactions that could last as long as six months.
While the GAC may not be getting the speedy resolution it so wanted, the ICANN board’s New gTLD Program Committee has nevertheless already voted to give the Red Cross and Red Crescent the additional protections the GAC wanted, albeit only on a temporary basis.

Oops! Cock-up reveals ICANN survey respondent emails

An ICANN contractor accidentally revealed the email addresses of almost 100 people who responded to a survey related to a review of the Generic Names Supporting Organization.
An invitation to participate in a follow-up survey was sent out to respondents today with all the email addresses in the To:, rather than BCC:, field.
Westlake Governance, which is conducting the survey for ICANN, quickly sent an apology:

We have been sending invitations in batches, and regret that we included your address in the only set of invitations that was copied inadvertently in the “To” line as addressee, rather than as a “Bcc.”
We sincerely apologise for this breach of our internal protocols and potentially of your privacy.

The misfire revealed that 15 out of the 98 listed respondents have @icann.org email addresses, suggesting roughly 15% of the responses came from ICANN staffers.
While the survey certainly anticipated responses from within the organization — one question gives “staff” as an option for the respondent to state their affiliation — some are not happy anyway.
Neustar vice president Jeff Neuman tweeted:

Should #ICANN staff be providing feedback on GNSO review? I see value in that; but results should not be grouped in with other responses.

— Jeff Neuman (@jintlaw) November 1, 2014

The massive, 93-question survey (pdf) was designed to kick-start the next cycle in ICANN’s interminable reviews of its policy-making bodies, in this case the GNSO.
The results of the survey will be used to inform a review of the GNSO’s structure, which could potentially re-balance power within the organization.

ICANN board bill tops $2 million

ICANN’s board of directors cost the organization over $2 million in pay and expenses in its fiscal 2014, a document released last night shows.
The total bill for the year ended June 30 was $2,000,609, up 16% on FY13’s $1,721,191 and up 27% on the FY12 figure.
The majority of the expenditure went on travel and other expenses. Just $538,983 went on compensation.
ICANN directors get $35,000 per year basic, plus another $5,000 for each board committee they chair. Board chair Steve Crocker gets $75,000 and accumulated $149,000 in FY2014 expenses.
Six directors chose to receive no compensation whatsoever, though they all racked up travel expenses.
The $2 million total does not include any contribution from CEO Fadi Chehade.
Chehade’s salary was $559,999. He also received $253,826 in bonuses and accumulated expenses totaling $519,421.
FY14 was of course the year in which Chehade and members of the board traveled extensively for outreach related to the IANA stewardship transition process and the NetMundial initiative.

Quitted ICANN director gets old job back

Olga Madruga-Forti, who quit ICANN’s board of directors earlier this month, has gone back to work for the US Federal Communications Commission.
I gather that while ICANN was aware of her new job, it was unable to announce the move at the time of her resignation.
The FCC said Madruga-Forti will be chief of Strategic Analysis and Negotiations Division at its International Bureau.
She worked for the FCC for nine years until 1997 as special counsel with responsibility for satellite policy. She’s spent the intervening years working for satellite companies in the US and Argentina.

ICANN may cancel Morocco meeting over Ebola fear

ICANN may cancel its forthcoming meeting in Marrakech, Morocco, due to fears about the spread of Ebola in Africa.
The organization issued a statement last night, after local reports said the decision to cancel had already been made:

Following Morocco’s recent request to postpone the Africa Cup of Nations football tournament because of possible African travel restrictions, ICANN is in active and ongoing discussions with our ICANN 52 Marrakech hosts.
ICANN is considering postponing the meeting in Marrakech scheduled for 8-12 February, 2015 as the likelihood of travel restrictions being imposed on nationals from African countries would reduce participation in the meeting. ICANN’s multistakeholder, bottom up model relies on the broad, active participation of communities across geography and society.
ICANN staff is working closely with the ICANN Board and its Community representatives.
No decision has been taken yet, however ICANN understands the importance of providing timely updates and path forward on the status and location of ICANN 52.

Citing an unnamed ICANN source, Le360 reported on Saturday that ICANN 52 had been canceled due to the Moroccan government’s reluctance to host large international gatherings.
While Morocco is not affected by the current Ebola outbreak — which has infected over 10,000 people thousands of kilometers away, mainly in Sierra Leone, Guinea and Liberia — there are fears that major international events could bring the virus into the country.
The government has been urging the Confederation of African Football to postpone the Africa Cup of Nations, a football tournament due to take place January 17 to February 8.
The ICANN meeting in Marrakech is scheduled for February 8 to 12.

Why kicking out the .gay “community” was right

Since Dotgay’s application for a Community Priority Evaluation on .gay failed last week, there’s been some unrest among its supporters and in the media.
An effort to get #ICANNisBroken trending hasn’t exactly set the Twittersphere alight, but there have been a handful of news stories that attack the CPE decision for failing to represent the gay community.
I think the criticisms are misplaced.
The Economist Intelligence Unit, which conducts the CPEs for ICANN, got it right in this case, in my view.
Dotgay scored 10 points out of 16 on the CPE. It needed 14 to pass. A pass would have given it exclusive rights to .gay, forcing the three other applicants to withdraw.
It could have scored 14 had it managed to get 4 points out of the available 4 on the “Nexus” criteria — the strength of the relationship between the string “gay” and the community Dotgay said it wanted to represent.
The EIU scored Dotgay zero.
The reason was that Dotgay, in its application, defined its community like this:

The Gay Community includes individuals who identify themselves as male or female homosexuals, bisexual, transgender, queer, intersex, ally and many other terminology – in a variety of languages – that has been used at various points to refer most simply to those individuals who do not participate in mainstream cultural practices pertaining to gender identity, expression and adult consensual sexual relationships. The Gay Community has also been referred to using the acronym LGBT, and sometimes the more inclusive LGBTQIA. The most common and globally understood term – used both by members of the Gay Community and in the world at large – is however “Gay”.

Dotgay lost the 4 points it needed to pass the CPE almost entirely because of this paragraph.
It overstretched, and it doing so it failed to play by the ICANN rules.
Remember, the EIU was asked to determine the “nexus”, or correlation, between the gTLD string — the word “gay” — and the people Dotgay said it was trying to represent.
By trying to be as inclusive as possible to as many different sexuality/gender identities as it could, Dotgay lost sight of the fact that the gTLD string it wants only describes a subsection of those people.
LGBTQIA isn’t even a particularly well-understood acronym. The “A” could mean “Ally”, as Dotgay said in its application, or “Asexual”, as it is often (but not in Dotgay’s application) interpreted.
Dotgay tried to define “intersex” people — humans whose genitalia or other sexual characteristics do not conform to the standard male/female norms — as “gay”. Are they “gay”?
It tried to define “allies” of gay rights as “gay”. Are we?
The majority of the straight people reading this post, myself included, would characterize themselves as an “ally” of the gay community — we’re supporters of equal rights — but we would not call ourselves “gay”.
The fact that we wouldn’t is an important part of the EIU’s logic, the reason it found Dotgay had overstretched in its community definition, and as hard as I try I can’t figure out why that logic is faulty.
“Membership in the Gay Community is not restricted by any geographical boundaries and is united by a common interest in human rights,” the Dotgay application reads.
Is that not an implicit admission that the “gay community” defined in the application actually includes the majority of the populations of most right-thinking democracies?
Regardless of the EIU’s logic, there has been a moderate amount of outrage online about its decision.
The article getting the most link love appears to be this one at Slate, written by “LGBTQ activist” Marc Naimark.
First, note the acronym Naimark uses in his bio at the bottom of the piece. There are two letters missing when compared to the Dotgay application — “I” and “A”, for “Intersex” and “Ally” or “Asexual”.
Would Dotgay have won its CPE if it had limited itself to the same five letters? Maybe, maybe not. GLAAD defines “gay” as only those people attracted to the same gender. Transsexuals may not count. I and A almost certainly don’t.
Is this just nit-picking?
Not really. The point of the CPE, taken as a whole, was to allow genuine communities to avoid expensive auctions whilst preventing gaming by unscrupulous registries that would seek to claim a valuable string without a genuine community behind them.
In a previous new gTLD round, ICM Registry defined its .xxx “community” as essentially ‘anyone who wants to be a member of the community’. The .mobi registry defined its community as basically ‘anyone with a mobile phone’.
These were both attempts, in my view, to game the rules ICANN had put in place for that particularly new gTLD application round. They were both successful.
What Dotgay tried to do with its .gay application was to define its community as basically everyone. I don’t think I would call it gaming, but I might call it a failure to follow the community rules closely enough.
So is it a bad thing that Dotgay’s CPE got rejected?
I don’t think so.
Remember, Dotgay has not been ruled out of the process. It can still compete at auction with the other applicants.
If that’s too rich for it, there may even be an opportunity for the company to combine in another way with a rival applicant, rather like DotGreen did with Afilias for .green.
In Salon, Naimark wrote that a non-Community .gay — one manged by Top Level Design, Minds + Machines or Rightside, the other three applicants — will likely be awash with pornography or homophobia:

Now, instead, .gay is up for auction, with dotgay LLC facing off against three much larger rivals whose sole aim is to make as much money as possible from .gay names. That means no oversight over who gets a name or what it’s used for. Gay bashers will be able to buy .gay domains. More significantly, the largest market is likely to be among porn sites. Any legitimate use of the name by individuals, businesses, and organizations associated with the LGBTQ community will likely be drowned in a sea of sex: On the Internet, everyone will be .gay for pay.

On the face of it, that seems like a compelling argument. Wouldn’t it be nicer if .gay was devoted to worthy causes rather than gay porn? I would probably agree with that argument.
But none of the four applicants for .gay — not even Dotgay — have any prohibitions or restrictions on porn in their applications.
There’s no reason on the new gTLD program record to believe Dotgay won’t sell .gay domains to porn sites too.
Where Dotgay does have a moral advantage against its competitors is in its explicit prohibitions against homophobic speech in the domain names it sells.
One of the policies it proposes in its application is that domain names should not be “words or phrases that incite or promote discrimination or violent behavior, including anti-gay hate speech.”
The other three applicants don’t have anything nearly as specific in their applications.
But by applying as a formal, big-C “Community” applicant, Dotgay also had to promise to restrict its gTLD to a limited number of people who were members of its self-defined “community”.
This is where I struggle.
Dotgay proposes to restrict .gay to people who obtain a special code via a number of as-yet unspecified, approved “Authentication Providers” — organizations that represent sections of the LGBTQIA community.
This process has clearly been created by the applicant, in my opinion, in order to get the required number of points in the CPE’s “Registration Policies” criteria, where you have to be restrictive to win.
What Dotgay is proposing is a system whereby in order to express your homosexuality (or membership of another LGBTQIA community, including “ally”) you need to apply to an approved gay-related organization for a special code.
That just seems wrong to me.
Whatever happened to the “self-identified” gay person? I thought that “self-identification”, in the sexual and gender identity world, was a bit of a big deal.
You need a password to “come out” online? Really?
I don’t want to be accused of “straightsplaining”, so it’s a genuine question: is it okay for a registry to need to authenticate your sexual/gender identity before you can register a .gay domain?

Another ICANN director mysteriously quits

ICANN director Olga Madruga-Forti unexpectedly quit the board last week.
ICANN did not give an explanation for her sudden departure, which came toward the end of the ICANN 51 public meeting in Los Angeles.
The Argentinian telco lawyer’s resignation means she will miss the third and final year of her appointed three-year term.
Her decision comes almost exactly a year after Filipino entrepreneur Judith Vazquez also quit, again with no reason given, two years into her own three-year term.
This possible coincidence has led to speculation that the ICANN board has an “aggressively male culture”, whatever that means.
Both Madruga-Forti and Vazquez were selected by the Nominating Committee, which has guidelines obliging it to try to maintain a healthy gender balance on the ICANN board.
I’m not sure whether Madruga-Forti’s resignation supports or challenges my previously stated view that pro-female gender discrimination by NomCom is of questionable value.
On the one hand, NomCom has for two years in a row selected candidates — partly on the basis of their gender and geographic origins — that didn’t make it through a full term.
On the other hand, if the male-heavy gender balance on the board is to blame for these resignations, perhaps a bit of enforced balancing may help maintain a stable board in future.
It’s a tricky one.
Currently, only four of the (currently) 20-member board are female. Three have voting rights. Of those three, two were selected by NomCom. The third was elected by the At-Large.
Two of them have been on the board for less than a week, having been selected or elected for terms beginning last Thursday.
It seems likely that Madruga-Forti’s permanent replacement will turn out to be female. Just a hunch.
What do you think? Is ICANN too blokey? How important should gender balance be on the ICANN board?