Lawyer ban coming to ICANN

Tell us who you’re working for, or get out.

That’s the message, mainly targeting lawyers in private practice, underpinning a proposed change to the rules governing participating in ICANN policy-making proceedings.

The Org has published a new “discussion draft” of a Community Participant Code of Conduct Concerning Statements of Interest, which proposes closing a loophole that currently allows lawyers to keep their clients’ identities secret.

Today, everyone who participates in policy-making has to file a Statement of Interest, disclosing among other things their employers and/or clients, so their fellow volunteers know who they’re dealing with.

But there’s an exemption where “professional ethical obligations prevent you from disclosing this information”.

The new proposals would remove this exemption. The text (pdf) reads:

withholding relevant information about the interests involved in the deliberations could impair the legitimacy of ICANN’s processes. When disclosure cannot be made, the participant must not participate in ICANN processes on that issue.

This rule would also apply, for example, to participants from companies that are secretly working on technology patents relevant to the area of policy work, ICANN said.

Imagine an employee of a Big Domains firm pushing hard for a change to Whois policy while their employer is covertly intending to patent elements of the technology that would be needed to implement that policy.

The other example I’ve been given is of a lawyer in private practice who’s representing a company that intends to apply to ICANN for a new gTLD in the Next Round, where disclosing the desired string might be unwise.

If Pepsi is planning to apply for .pepsi, thinking it will give it a competitive advantage over Coca-Cola, having its outside counsel essentially announce that fact to the world could tip off its rival to start working on its .coke application.

In both those situations, the proposed new SOI policy would ask the would-be volunteer to either disclose or recuse. If discovered to have lied about their interests, they could be banned from all future ICANN policy-making work.

The proposals also target those working for trade groups who keep their member lists private. The document states:

If participants are participating on behalf of a trade association, consortium, or similar organization, those participants are urged to identify where other participants within ICANN can locate pertinent information about the membership or funding of that organization.

The proposals appear to have originated with ICANN Org after community efforts to reach consensus on SOIs failed.

A GNSO working group called CCOICI, for Council Committee for Overseeing and Implementing Continuous Improvement, after internal disagreements last year recommended keeping the lawyer loophole.

But when it came to a GNSO Council vote almost exactly a year ago, the Contracted Parties House (registries and registrars) unanimously rejected the CCOICI recommendations, precisely because of the loophole.

The Non-Contracted Parties House gave the changes their unanimous approval.

CPH members’ interests are of course generally known by virtue of the fact that they’re CPH members, representing their employers.

As I reported back in March, the CPH continues to think the SOI rules need strengthening, and that position is shared by members of the influential Governmental Advisory Committee.

The proposals are open for public comment until December 2.

ICA teams up with WIPO on UDRP reform

The Internet Commerce Association and WIPO are jointly chairing an off-the-books review of the UDRP, ahead of a likely ICANN review of the anti-cybersquatting policy next year.

WIPO said today that the review is being coordinated by Brian Beckham of WIPO and Zak Muscovitch of the ICA, and comprises another 16 participants, mostly UDRP lawyers, panelists, and WIPO itself.

ICANN is being represented by director Sarah Deutsch. Domainers are represented by Telepathy’s Nat Cohen. The brand owner representative is Mette Andersen of regular UDRP complainant Lego.

The team is also drawing on the expertise of a couple dozen experts, a who’s who drawn from all sectors of the industry from registrars to domainers to IP interests to the UDRP providers themselves.

The composition looks very much like what an ICANN policy working group on this topic would look like, but the talks are being held outside of the usual policy development process.

WIPO says: “The core aim of this project is to maintain the UDRP as an efficient and predictable out-of-court dispute resolution mechanism for clear trademark-based disputes.”

But the organization seems to be engaging in some expectation management aimed at those who believe UDRP needs to be gutted. WIPO said:

Any recommendations should be borne out by a demonstrated compelling need for a change, and must be considered against this background, as any perceived case-specific or anecdotal faults of the UDRP do not warrant a wholesale revision of this industry best practice.

The group is expected to produce a report early next year for public input, and share a final report with ICANN thereafter, when the GNSO community is expected to kick off its owner formal Policy Development Process looking at UDRP.

UDRP review has been on the back-burner for the last couple of years since an initial public comment period, mainly due to workload issues faced by ICANN staff and community volunteers.

The GNSO was expected to open its PDP preparations more or less now, but the GNSO Council is expected to vote this Thursday to delay the start of the project for another six months, due to delays implementing other rights protection mechanism reviews.

Given how long PDPs typically take, by my estimate you’re looking at at least three years before any changes to UDRP are approved.

Response to sex harassment lawsuit “inadequate”, say ICANN vets

ICANN’s response to a sexual harassment lawsuit filed by a former long-serving employee was “inadequate” and failed to address “pervasive and obvious problems” women experience in the community, some veteran community members have said.

In a letter to chair Tripti Sinha, 15 people, not exclusively female, also say that previous responses to reports of harassment have focused more on protecting ICANN’s reputation rather than protecting the affected party.

Tanzanica King, a former senior member of ICANN’s meetings team and the Org’s second-longest-serving employee, sued ICANN in August, complaining about specific instances of harassment and a broader “frat boy culture”.

In response, ICANN said many of King’s claims were “untrue”, saying it “strives to create a positive, safe, and inclusive work and community environment” and has “a zero-tolerance policy toward harassment”.

Sinha later announced a forthcoming “strengthening” of the Org’s anti-harassment policy and named its new Ombuds as Liz Field, a woman with experience overseeing anti-harassment policies in governmental and quasi-governmental settings.

Now, the 15 veteran community members, drawn from contracted and non-contracted parties but all writing in their personal capacity, have called ICANN’s initial response “profoundly disappointing”. They wrote (pdf).

It is time to acknowledge that ICANN Org and the Community must make the necessary changes to create a welcoming and professional Community and to protect and defend both Org staff and Community members against harassment and sexual abuse. Denial of this issue has gone on for too long, protecting ICANN’s reputation rather than protecting victims.

The September 24 letter goes on to specifically criticize the Office of the Ombuds, until about a year ago led exclusively by men and then on an interim basis by a woman who was also an Org staffer, for not having the power or willingness to act on harassment reports. They wrote:

An ombuds must have independence and the ability to act; ICANN’s Office of the Ombuds has neither. Typically when harassment has been raised with the Ombuds, the Office did not have the ability to protect the reporter and the impacted person. The Office has illustrated over and over that their function is to protect ICANN Org’s interests—reputation, financial interest, or damage to organizational integrity.

Sinha has since responded (pdf), saying the ICANN board takes the issue “very seriously” and asking permission to publish the letter as “a positive way to encourage dialogue”.

She added that the new Ombuds reports directly to the board and that she “is fully empowered to act as an independent, impartial dispute resolution provider, with autonomy and authority.”

ICANN has not retracted its statement in response to the King lawsuit as the letter-writers requested.

Reporter gains first access to .io island for decades

A BBC journalist is believed to have become the first reporter to visit Diego Garcia, the main island of the contested British Indian Ocean Territory that owns the .io domain, in decades.

Alice Cuddy was given access to the island after a court battle as part of the Beeb’s coverage of litigation against the UK government, which administers BIOT, and spent five days there.

Her coverage does not mention the contested .io ccTLD at all, but it does provide a fascinating account of her time on the island, the largest of the Chagos Archipelago, which is used almost exclusively as a US military base.

The article describes what sounds like a tropical island paradise populated almost exclusively by squaddies and giant crabs, but administered by Kim Jong Un.

Cuddy was escorted everywhere she went, had reporting restrictions imposed, and wasn’t allowed to visit certain places (including places as innocuous-sounding as a bowling alley).

The report delves into the history of the island, from the forcible deportation of its native population in the 1970s to its strategic use supporting US/UK military misadventures in the Middle East.

There’s also a fair bit of local color, with Cuddy noting that, despite the name, BIOT is in equal parts very much American. She notes the electrical outlets and currency are American, she dined on “tater tots”, and everybody drives on the wrong side of the road.

It’s well worth the read if you have a passing interest in the place .io technically represents.

As I reported earlier today, .io’s registry, part of Identity Digital, sold almost $40 million of domains last year.

Plurals ban policy handed to ICANN board

The GNSO Council has approved a blanket ban on singular and plural versions of the same word being delegated as gTLDs in future and passed it to the ICANN board of directors for final consideration.

The proposed policy would prevent anyone applying for the singular/plural equivalent of an existing gTLD, and would put future applications for single/plural clashes into contention sets where only one would survive.

The ban would prevent a future .kitchens, for example, because there’s already a .kitchen, and there could be no .motorcycle gTLD because there’s already a .motorcycles.

It would also mean that if there are future applications in the same round for .podcast and .podcasts, for example, they would be placed in the same contention set, likely go to auction, and only one would be delegated.

Applicants would also be banned from applying for singular/plural variants of the few dozen strings found on a “limited blocked name list” that comprises mainly the names of internet policy organizations including ICANN, the IETF and the GNSO.

That list also includes dictionary words such as “onion”, “invalid”, “test”, “internal” and “local”, so there could never be a .onions or .locals gTLD under the policy.

ICANN would decide whether two strings are “the singular or plural version of the same word in the same language” by reference to a dictionary.

The idea behind the ban is mitigating abusive registrations that could be used in, for example, phishing attacks, as well as lazy gTLD applicants that might hope to piggyback on the success of their single/plural rival.

The policy recommendation was written by a “Small Team Plus” of 15 community volunteers after the ICANN board last year rejected the GNSO’s original singular/plural policy, which would have made exceptions to the ban based on the applicant’s “intended use” of the gTLD.

An example given was that if one applicant applied for .spring to represent the meteorological season and another applied for .springs to represent flexible coils of metal, the latter would not be judged a plural of the former.

But the board was worried that if ICANN had to make a call on “intended use”, ICANN would also have to monitor and enforce the use of the gTLD in future, breaking its bylaws promise not to regulate internet content.

Under the revised policy recommendation, .spring and .springs would be ruled as singular/plural equivalents of each other, regardless of how they were going to be marketed.

While the Small Team was not unanimous in its consensus recommendation, the GNSO Council was unanimous in approving it at its monthly meeting last week. The language will now be sent to the ICANN board for approval or rejection.

ICANN confirms new gTLD application fee

It’s $227,000. That’s the minimum ICANN expects to charge for each new gTLD application in the Next Round.

The Org confirmed the price, which is $42,000 more than it charged in 2012, in a blog post this afternoon.

It’s toward the low end of the $208,000 to $293,000 range discussed in June, but up on the $220,000 number being circulated a few weeks ago.

ICANN is able to put a tentative price on applications now because its board has now squared away all the outstanding policy items that could have substantially affected its evaluation costs.

That includes its new process for evaluating potential name collisions, which I wrote about just a few hours ago.

The fee is based on an estimate that ICANN will receive 1,500 applications, where $227,000 will allow it to recover its development, implementation, and operations costs. It may issue rebates if there are more applications.

The $227,000 fee is just a baseline. Applicants will be expected to pay more for extra services, such as if they want a Community Priority Evaluation or want to operate a dot-brand, ICANN said.

ICANN has previously said that most of the price increase over 2012 is due to inflation. But this hasn’t stopped grumbling that the fee is too high, given efficiencies such as technical back-end operations being evaluated separately.

Less well-financed wannabe applicants from certain countries — mostly outside Europe and North America — will have the chance to apply for a fee subsidy under the Applicant Support Program.

New gTLD application fee rises by thousands after collision call

ICANN has upped its expected new gTLD application fee after approving a costly new plan to tack name collisions.

The baseline price of applying for a single string, most recently pegged at $220,000, is now expected to go up by $5,000, according to a recent resolution of the ICANN board of directors.

The board earlier this month approved the Name Collision Analysis Project Study 2 Final Report, which proposed a way to prevent new gTLDs seriously interfering with existing non-standard TLD use on private networks.

Strings applied for successfully in the 2012 round had to agree to a 90-day post-launch period of “controlled interruption”, during which the entire gTLD was wildcarded with information to help affected parties fix their DNS configuration.

So if a company had been using .horse on its internal network, and a suddenly-delegated .horse gTLD started causing leakages to the public DNS, the company was quickly alerted to what the problem was.

Under the now-approved NCAP 2 plan, ICANN will take over responsibility for controlled interruption. Applied-for strings will be tested in the live DNS before a registry has even been contracted.

The results would be assessed by a Technical Review Team and applicants for strings considered at high risk of collisions would be able to submit mitigation plans for evaluation before having their registry contracts approved.

While approving NCAP 2 will generate more confidence that the Next Round will in fact go ahead in the second quarter of 2026, this extra stage of course will add friction and cost to the evaluation process.

ICANN estimates it will add $500,000 to its program implementation budget and $6.9 million to the application processing budget, increasing the application fee by $5,000 per application. That seems to assume 1,500 applications being submitted.

The likely increase has been flagged up for months, so is unlikely to surprise potential applicants, but will not appease those already grumbling that the fee has gone up so sharply from the $185,000 charged in the 2012 round.

It’s also bad news for companies that applied for .home, .corp or .mail in 2012, which were rejected due to the high risk of collisions.

The ICANN board rejected NCAP 2’s recommendation that these three gTLDs should be submitted to the new Name Collision Risk Assessment Process, potentially reawakening their applications from their Not Approved status.

Under the latest board action, anyone who applied for .home, .corp or .mail in 2012 will have no preferential treatment if they apply for the same strings again in 2026, according to the resolution.

Affected applicants were already offered a full refund for their rejected bids, with only deep-pocketed Amazon and Google so far not exercising that option. Now they have no excuse.

ICANN names its Supreme Court judges

ICANN has finally named the members of the quasi-judicial body that will oversee its highest accountability mechanism.

The names of the 12 members of the Independent Review Process Standing Panel were published by ICANN this afternoon and the International Centre for Dispute Resolution, which manages the IRP, published their resumes.

They’re mainly lawyers and law professors with extensive arbitration experience. There’s one African, and the rest are either North American or European; none are from Asia or Latin America.

The Standing Panel has been a long time coming. It’s been over a decade since ICANN first said it would create one. The jurists were picked by a community committee in January, but ICANN wanted to get them all contracted and up to speed before naming them.

The idea is to streamline IRP, which currently is barely distinguishable from the judicial system when it comes to duration of cases, by allowing ICANN and complainants to select their panel from a known pool of trained, experienced, vetted experts.

The IRP is the final formal appeals mechanism within the ICANN process before lawsuits start flying. There’s been over 20 filed in the last 16 years, and ICANN’s win-to-loss ratio is not great.

ICANN hires new Ombuds from WIPO

ICANN has named its new Ombuds, who will take over the role vacated by Herb Waye almost a year ago.

She’s Liz Field, a HR specialist who spent most of her career at Amnesty International but most recently has been working for WIPO as an independent outside consultant, according to her LinkedIn.

After almost two decades at Amnesty, Field worked for two years as an anti-harassment coordinator for the UK government’s Foreign, Commonwealth and Development Office.

Field, who says she also speaks French and Spanish, will take over from complaints officer Krista Papac, who has been filling in for Waye since his resignation.

ICANN said that 36 people applied for the job — 22 men and 14 women. The Ombuds Search Committee interviewed five of them and two candidates were interviewed by the full board of directors.

The genders of the applicants is relevant in this case. Some female ICANN community members have previously said they would be reluctant to make gender-related complaints, such as sexual harassment, to a male Ombuds.

ICANN chair Tripti Sinha earlier this week linked the hiring of the new Ombuds to a strengthened anti-harassment policy that the board hopes to shortly introduce. Field seems to have the CV to support such a goal.

The Ombuds role is to hear complaints about unfair treatment and unpleasant behavior in and from the Org and community.

The job occupies a unique position in ICANN’s structure, answering directly to the board rather than the Org’s management hierarchy. Only four people have occupied the role since it was created 20 year ago.

Big twist as ICANN bans new gTLD auctions

ICANN is to ban new gTLD applicants from paying each other off if they apply for the same strings, removing a business model that saw tens of millions of dollars change hands in the 2012 application round.

But, in a twist, applicants will be able to submit second-choice strings along with their main application, allowing them to switch if they find themselves in contention.

While ICANN’s board of directors has yet to pass a resolution on private resolution in forthcoming application rounds, chair Tripti Sinha said in a letter to the GNSO Council (pdf) and blog post that there’s agreement on three principles.

“Private resolution of contention sets will not be permitted during the Next Round,” Sinha told the Council. The idea of permitting joint-venture resolution was also ruled out as impractical and open to gaming.

This of course means that where contention sets do occur, they’ll be resolved with a “last resort” auction where ICANN gets all the cash from the winning bidder.

Funds raised this way in the last round, along with a decade’s worth of investment interest, have been used to replenish ICANN’s reserve fund, to fund the current Grant Program, and may be shortly used to subsidize the Applicant Support Program.

Second, applicants will be able to submit at least one alternate string with their applications, allowing them to avoid a contention set and last resort auction.

This potentially makes the cost of acquiring a gTLD cheaper for the applicant while increasing the number of gTLDs that go live. ICANN might also have to issue fewer refunds for withdrawn applications.

ICANN thinks this measure might make gTLDs more affordable for less well-resourced applicants from the Global South, where ICANN is keen to diversify the industry, although the applicants may not get their first-choice strings.

Applicants would only be able to switch to an alternate string, which they will have to have pre-selected, if doing so would not create a new contention set or make the applicant join a different existing contention set.

They’d also only be able avoid a contention set of exact-match strings, and not sets subsequently created by the String Similarity Review or String Confusion Objection results.

So, to take an example from 2012, any of the seven .hotels applicants would have been able to switch to a second-choice string immediately after Reveal Day, but not after the similarity review placed them in contention with .hoteis.

The third point of agreement from the board is that the last resort auctions should keep the ascending-clock second-price method used for the 2012 round, deciding against lotteries or the Vickrey auction method.

The ascending clock method sees bids filed in rounds until all bidders but one had dropped out. The last applicant standing then pays ICANN the last price offered by the runner-up.

A Vickrey auction would have seen applicants submit their maximum bids at the time of application, not knowing who they were bidding against. Lotteries are legally problematic under California gambling law.

Sinha said the board intends to pass a resolution embodying these three principles “in the coming weeks”.

This is going to create some extra work for the GNSO, as ruling out joint ventures as a means to private resolution goes against community policy recommendations (and the board’s adoption of those recommendations).

The GNSO Council is set to discuss Sinha’s letter at its regular monthly meeting this Thursday.