Got beef with ICANN? Why you may not want to use the Ombudsman

Complaining to the independent Ombudsman may not be the best way to start a beef with ICANN, and that’s according to the Ombudsman himself.

Herb Waye told DI this week that consulting him as a first port of call may well lock complainants out of escalating their complaints through his office in future procedures.

Earlier this week, I reported on a lawsuit filed by three so-far unsuccessful .hotel gTLD applicants, which among other things alleges that ICANN’s Request for Reconsideration appeals process is a “sham”.

Reconsideration has quite a high barrier to success, and complaints are rarely successful. Requests are dealt with by the Board Accountability Mechanisms Committee, a subset of the very same board of directors that passed the resolution being complained about, advised by the same ICANN lawyers.

But RfRs are also automatically sent to the Ombudsman for a determination before the BAMC looks into them, which should provide a valuable and ostensibly independent second set of critical eyes.

However, in practice this has almost never happened since the provision was added to the ICANN bylaws five year ago.

The .hotel plaintiffs tallied up the 14 RfRs related to the new gTLD program since 2017 and found that the Ombudsman had recused himself, without detailed explanation, on every single occasion. Their complaint in California Superior Court reads:

Neither ICANN nor the Ombudsman has provided any intelligible reason for this gross flouting of ICANN’s bylaws and the Ombudsman’s dereliction of duty, other than a naked and vague claim of “conflict of interest”. The lack of any Ombudsman process not only violates ICANN’s bylaws and its contracts with Plaintiffs, but it renders the promise of a fair and independent Reconsideration process null and illusory, and the notion of true accountability a farce.

The ICANN bylaws state that the Ombudsman must recuse himself from considering RfRs “involving matters for which the Ombudsman has, in advance of the filing of the Reconsideration Request, taken a position while performing his or her role as the Ombudsman”.

According to Waye’s explanation, this is a very broad standard indeed. He told DI in an email:

it is not just me but over 18(?) years of Office of the Ombudsman involvement in complaints or investigations. So I need to go back through the archives when I receive an RR to make sure neither Chris [LaHatte] nor Frank [Fowlie] have made a determination (it doesn’t have to be a public report (or position) or a report to the Board to qualify for recusal).

Among other factors, it also doesn’t have to be a past determination directly involving the RR requestor either… if the substance of the RR has been reviewed by the Office in the past, or if the RR is about an issue similar to one that has been the subject of a complaint and a determination, then recusal is also required to avoid inconsistencies or perceived bias.

He consults with his “independent outside counsel”, Dave Marglin, when figuring out whether recusal is necessary, he said.

Waye published an explanation of his role in Reconsideration on page 19 of the Ombusdman’s most-recent annual report (pdf).

I wondered whether a 2015 decision by Waye predecessor LaHatte related to the new gTLD program’s controversial Community Priority Evaluation might account for the spate of recusals over the last few years, but Waye would not be drawn.

“I can’t identify specifics about each recusal as I must at all cost avoid identifying past complainants or subjects of complaints,” he said. “As I mentioned, some published reports may be the reason for a recusal but it may also be the result of the RfR issue having passed through my Office prior to the RfR being filed as a complaint; which may or may not be a known fact, so I err on the side of caution and treat all recusals the same.”

Given that the Ombudsman also deals with sensitive interpersonal interactions, including sexual harassment complaints, a code of confidentiality could be a good thing.

But it also means that there are an unknown number of undisclosed topics, dating back the best part of two decades, that the Ombudsman is apparently powerless to address via the Reconsideration process.

And that list of untouchable topics will only get longer as time goes by, incrementally weakening ICANN’s accountability mechanisms.

It seems to me that for companies with no interest in confidentiality but with serious complaints against an ICANN board action, complaining to the Ombudsman as the first port of call in a case that would likely be escalated to Reconsideration, Cooperative Engagement Process and Independent Review Process may be a bad idea.

Not only would they be locking the Ombudsman out of their own subsequent RfR, but they’d be preventing him or her getting involved in related RfRs for eternity.

Waye does not disagree. He said:

I think anyone considering bringing a complaint to the Office of the Ombuds should now consider their desired outcome if there is any possibility the issue may be something that could eventually take the RfR route. Do they want an informal (potentially confidential) determination from the Ombuds or do they want something more “public” from the Ombuds in the form of a substantive evaluation made directly to the BAMC. It’s still a new process and my participation in the RfR accountability mechanism is still a work in progress for the people considering using the RfR. But it’s what the community wanted and we will make it work.

It strikes me that the Reconsideration policy outlined in the ICANN bylaws is, by accident or design, self-terminating and opaque. It becomes less useful the more often it is used, as the range of topics the Ombudsman is permitted to rule on are slowly whittled away in secret.

It also occurs to be that it might be open to abuse and gaming.

Worried that a rival company will try to use Reconsideration to your disadvantage? Why not file a preemptive Ombudsman complaint on the same topic, forcing him to recusing himself and leaving the eventual RfR in the hands of the far-from-objective BAMC and ICANN board?

Waye said:

I suppose it would be possible, though it would require me making a determination or taking a position of sorts related to the eventual RfR… a complaint doesn’t automatically mean recusal. And of course it would mean me and my counsel not seeing through the “gaming” agenda and declining the complaint at the outset.

Comment Tagged: .hotel, accountability, bamc, cep, ICANN, irp, new gTLDs, Ombudsman, reconsideration, transparency

EU cancels .eu tender after Brexit cock-up

The European Commission has been forced to cancel its search for a new .eu registry operator after apparently misunderstanding how Brexit works.

When the Commission put the .eu contract up for grabs last October, it said deal was only open to organizations based in the EU or the UK.

It seemed weird at the time, given that the UK had already officially left the EU and was just a few months away from terminating its year-long transition agreement, under which it still operated as if it were still a member.

And it turns out to have been a mistake, based on a misunderstanding of the legalities of the Brexit process. UK registries should never have been allowed to bid in the first place.

The Commission said today “the inclusion of the clause for applicants established in the United Kingdom in the Call was an error”.

It’s therefore scrapped the entire process and intends to relaunch it “in the near future”.

Only not-for-profit entities may apply.

.eu is currently managed by EURid, which is of course not barred from bidding to renew its longstanding contract.

2 Comments Tagged: .eu, eurid

More acquisitions? GoDaddy to raise $800 million

GoDaddy said today that it plans to raise $800 million, which may be put towards future acquisitions.

The company said it is issuing that amount in senior notes to institutional investors.

The money will be used “for general corporate purposes, which may include working capital, capital expenditures and potential acquisitions and strategic transactions”, GoDaddy said.

Comment Tagged: acquisitions, godaddy

Facebook lawsuit brings one country’s domain to a screeching halt

Bangladesh’s ccTLD registry has reportedly frozen all registrations and transfers after a cybersquatting lawsuit filed by Facebook.

According to local reports a couple weeks back, Bangladesh Telecommunications Company Ltd has implemented Draconian pre-registration roadblocks to registration, such that only exact-match domain names are available to individuals and organizations.

And Western corporate registrar CSC said today that BTCL has “implemented a temporary suspension to registration and transfer orders due to an ongoing legal matter” and is “diligently working to draft new regulations and procedures for registration orders.”

Registrants can still manage their Whois and DNS settings as normal, CSC said.

Facebook sued the registrant of the domain facebook.com.bd last November, asking for the domain to be cancelled and for $50,000 in damages, dragging BTCL into the case.

According to reports, the domain had been registered in 2008 when the registry used a largely paper-based system, but Facebook only resorted to the courts last year when the registrant listed it for sale for $6 million.

It’s a textbook case of cybersquatting, but .bd evidently does not have the mechanisms — such as UDRP — to handle such malfeasance outside of the courts.

While a Dhaka court reportedly issued an injunction against the domain in question, it’s still resolving and still listed for sale at $6 million.

Comment Tagged: .bd, btcl, cybersquatting, facebook, trademarks

CentralNic buys German monetization firm for up to $13 million

CentralNic today continued is diversification outside of its core domain business by acquiring Berlin-based monetization firm Wando.

The company said it will pay €5.4 million ($6.5 million) up front and up to €5.4 million more depending on performance through Q3 2022.

CentralNic said Wando makes €4.9 million ($5.6 million) in revenue a year, over half of which already comes through its partnership with CentalNic.

Comment Tagged: acquisition, centralnic, wando

.hotel battle lands ICANN in court over accountability dodges

ICANN’s accountability mechanisms, or lack thereof, have landed the Org in court.

Three applicants for the .hotel new gTLD have sued in California’s Superior Court in LA, claiming ICANN has consistently failed to provide true accountability, refusing for over seven years to implement fundamental mechanisms required by its bylaws.

They want the court to force ICANN to stick to its bylaws and to also temporarily freeze an Independent Review Process case related to .hotel.

The registries in question are Fegistry, Domain Venture Partners and Radix. They filed their complaint at the end of October, but ICANN did not publish it until the end of January, after its terse reply, and an administrative ruling, had also been filed with the court.

While the endgame is presumably to get the .hotel contention set pushed to auction, the lawsuit barely mentions the gTLD at all. Rather, it’s a broad-ranging challenge to ICANN’s reluctance to submit to any kind of accountability at all.

The main beef is that ICANN has not created a so-called “Standing Panel” of judges to preside over IRP cases, something that its bylaws have required since 2013.

The Standing Panel is meant to comprise seven legal experts, trained up in all things ICANN, from which the three panelists presiding over each IRP would be selected.

It would also operate as a final appeals court for IRP rulings, with all seven panelists involved in such “en banc” challenges.

The idea is to have knowledgeable panelists on a retainer to expedite IRPs and ensure some degree of consistency in decision-making, something that has often been lacking in IRP decisions to date.

Despite this requirement being in the bylaws since 2013, ICANN has consistently dragged its feet on implementation and today there still is no Standing Panel.

The .hotel plaintiffs reckon ICANN has dodged $2.7 million in fees by refusing to pick a panel, all the while offloading certain fees onto complainants.

It didn’t get the ball rolling until January 2018, but the originally anticipated, rather streamlined, selection process quickly devolved into the usual mess of ICANN bureaucracy, red tape and circular community consultation.

The latest development was in November 2020, when ICANN announced that it was looking for volunteers for a cross-community “IRP Community Representatives Group”, a team similar to the Nominating Committee. which would be responsible for picking the Standing Panel members.

The deadline to apply was December 4, and we’ve not heard anything else about the process since.

The .hotel litigants also have beef with the “sham” Request for Reconsideration process, which is notorious for enabling the board to merely reinforce its original position, which was drafted by ICANN staff lawyers, based on advice provided by those same ICANN staff lawyers.

They also take aim at the fact that ICANN’s independent Ombudsman has recused himself from any involvement in Reconsideration related to the new gTLD program, for unclear reasons.

The lawsuit (pdf) reads:

ICANN promised to implement these Accountability Mechanisms as a condition of the United States government terminating its formal oversight of ICANN in 2016 — yet still has wholly failed to do so.

Unless this Court forces ICANN to comply with its bylaws in these critical respects, ICANN will continue to force Plaintiffs and any other complaining party into the current, sham “Reconsideration” and Independent Review processes that fall far short of the Accountability Mechanisms required in its bylaws.

The plaintiffs say that ICANN reckons it will take another six to 12 months to get the Standing Panel up and running. The plaintiffs say they’re prepared to wait, but that ICANN is refusing and forcing the IRP to continue in its absence.

They also claim that ICANN was last year preparing to delegate .hotel to HTLD, the successful applicant now owned by Donuts, which forced them to pay out for an emergency IRP panelist to get the equivalent of an injunction, which cost $18,000.

That panelist declined to force ICANN to immediately appoint a Standing Panel or independent Ombudsman, however.

The .hotel plaintiffs allege breach of contract, fraud, deceit, negligence and such among the eight counts listed in the complaint, and demand an injunction forcing ICANN to implement the accountability mechanisms enshrined in the bylaws.

They also want an unspecified amount of money in punitive damages.

ICANN’s response to the complaint (pdf) relies a lot on the fact that all new gTLD applicants, including the plaintiffs in this case, signed a covenant not to sue as part of their applications. ICANN says this means they lack standing, but courts have differed of whether the covenant is fully enforceable.

ICANN also claims that the .hotel applicants have failed to state a factual case for any of their eight counts.

It further says that the complaint is just an effort to relitigate what the plaintiffs failed to win in their emergency hearing in their IRP last year.

It wants the complaint dismissed.

The court said (pdf) at the end of January that it will hold a hearing on this motion on DECEMBER 9 this year.

Whether this ludicrous delay is related to the facts of the case or the coronavirus pandemic is unclear, but it certainly gives ICANN and the .hotel applicants plenty of time for their IRP to play out to conclusion, presumably without a Standing Panel in place.

So, a win-by-default for ICANN?

Comment Tagged: .hotel, accountability, afilias, domain venture partners, donuts, dvp, Fegistry, htld, ICANN, irp, new gTLDs, Ombudsman, radix, standing panel

ICANN purges another dormant dot-brand

The 89th unwanted dot-brand has filed with ICANN for voluntarily contract termination.

Iveco, an Italian industrial vehicle manufacturer, has told ICANN it no longer wishes to run the .iveco dot-brand.

As is the case with self-terminations more often than not, the gTLD was almost completely unused, with only the obligatory nic.example domain active.

Iveco is a big ole company, with revenue of €4.9 billion ($5.9 billion) a year, so it appears to be a case of a lack of enthusiasm rather than a lack of resources.

Comment Tagged: .iveco, dot-brands, ICANN, new gTLDs, termination

Conspiracy nut ordered to pay thousands to “kingpins” as “cartel” lawsuit chucked out

Domain industry conspiracy theorist Graham Schreiber has been ordered to pay CAD 6,000 ($4,750) in legal fees to many of the scores of industry figures he sued as a “cartel” of “kingpins” last August.

A Canadian Federal Court judge last month threw out his rambling, incoherent complaint in its entirety, saying among other things that it was “frivolous and vexatious”, containing no allegations the defendants were capable of responding to.

Judge Angela Furlanetto summarized the case like this:

It can best be described as a wide-spread attempt by the Plaintiff to express his displeasure and frustration with his experience in his prior lawsuit in the U.S. and with the domain name system.

And:

In this case, the Plaintiff baldly asserts conspiracy, racketeering, trafficking, extortion, passing off and perjury. The Plaintiff raises these issues broadly, does not plead material facts to support the constituent elements of these causes of action, and has not identified with any clarity which defendants are asserted to have committed each of these acts and how. The who, when, where, how and what are not pleaded

In throwing out the case, she ordered that Schreiber must pay CAD 1,500 ($1,189) to each of the four sets of defendants who had responded to his complaint, to cover their legal fees.

Schreiber actually got lucky — the defendants had asked for a total closer to CAD 25,000 ($20,000), but the judge took pity on him because he was representing himself in the case.

The beneficiaries of these four payouts, should they ever be made, are GoDaddy VP James Bladel, a group comprising Jeff Ifrah, Keith Drazek, Timothy Hyland, Phil Corwin and David Deitch, Greenberg Traurig lawyers Marc Trachtenberg, David Barger, Amanda Katzenstein, Paul McGrady and Ian Ballon, and Facebook Canada.

But the suit had named dozens of other industry figures of greater or lesser prominence, in a crazy blanket rant that appears to be rooted in an old beef Schreiber has with CentralNic and Nominet related to the domain names landcruise.uk.com and landcruise.co.uk.

One of his rather bold legal gambits was to inform the court that he’d been trolling the defendants on social media for years, and that the fact he had not yet been sued for libel was evidence of a conspiracy.

Will a six grand legal bill be sufficient to get him to sit down and shut up? I guess time will tell.

Hat tip to erstwhile defendant John Berryhill for posting the ruling (pdf).

Comment Tagged: landcruise, schreiber

Three ICANN directors voted against Marby’s pay rise

In what may or may not have been an accidental moment of transparency, ICANN has revealed that three of its directors recently voted against giving CEO Göran Marby a pay rise.

Notes on the February 8 board meeting, which granted Marby a 5% salary increase from July, contain this tally:

Eleven Directors voted in favor of Resolution 2021.02.08.05. Three Directors voted against the Resolution. Two Directors including Göran Marby, the subject of the Resolution, were unavailable to vote. The Resolution carried.

It appears to be the first time, at least in recent years, that an ICANN board vote breakdown has been published on a matter of executive compensation.

Assuming this was a deliberate decision to increase transparency, rather than an admin screw-up, kudos to ICANN for the baby-step.

Any resolution carried by the ICANN board related to personnel matters such as pay is usually during a confidential “executive session” which is not properly minuted and doesn’t usually have a vote breakdown published.

The report does not name the dissenting directors or their arguments against the pay raise. That kind of thing would usually come in the formally approved minutes, which might not come for months and might not elaborate further.

However, when Marby sought and was granted a contract extension last year, and the vote was not unanimous, ICANN did eventually publish some information about dissenting directors’ rationales.

One director had voted against the extension partly due to issues with “the CEO’s communication style” that he believed needed to be addressed. Another abstained because she felt there should have been a formal performance review first.

Comment Tagged: ICANN

Former ICANN vice-chair Disspain joins Donuts

ICANN’s influential former vice-chair, Chris Disspain, has evidently become the latest former ICANN top dog to take a job at portfolio registry Donuts.

I’m told Disspain has joined the company as senior policy advisor to CEO Akram Atallah.

He recently informed rival registries of his new move, and updated his “statement of interest” profile earlier this month to reflect his connection to Donuts.

Disspain was on ICANN’s board of directors from 2011 until October last year, when he left due to term limits. For a big chunk of that tenure he also served as vice-chair, and was often one of the more engaged and vocal of the directors.

At the start of his run, he was chair of Australian ccTLD registry auDA, but he was let go controversially in 2016.

For much of Disspain’s time on the ICANN board, new boss Atallah was serving as president of ICANN’s Global Domains Division.

Ethos Capital, which recently said it is acquiring a controlling stake in Donuts, also has a few former senior ICANNers, including CEO Fadi Chehadé, among its senior executives.

Comment Tagged: donuts