ICANN throws out prostitution complaint

ICANN has rejected a complaint from a man about a web site apparently offering prostitution services.

As I reported last month, the American had filed a Request for Reconsideration with ICANN’s board of directors after his complaints to Compliance about Namecheap were rejected.

He’s unhappy that US-based Namecheap won’t take down the domain adultsearch.com, which operates as a marketplace for sex workers, many of whom are offering services that may well be illegal in most parts of the US.

But ICANN’s Board Governance Committee rejected the complaint (pdf) for lack of standing.

While the ruling is procedural, rather than substantive, the BGC does spend quite a lot of time tying itself in knots to show that while the complainant may well believe prostitution is harmful to society in general, he failed to state how he, specifically, had been harmed.

The decision also directly references the part of the request the requester has specifically asked to be redacted (but was not).

ICANN board tries to redefine mediocrity — literally

After 21 years of covering this stuff, the volume and extent of ICANN’s navel-gazing no longer amazes me, but every now and then I stumble upon something that forces a little angry smile from my lips.

It appears the ICANN board of directors is seeking to redefine mediocrity itself, in a very literal way, and it may well cost your money to do so.

I’ll explain.

Every two years, the board conducts a self-evaluation via a survey put together by ICANN staff. That survey recently came up for review by the board’s seven-person Board Governance Committee.

According to the meeting’s minutes, the BGC decided it was unhappy with the word “neutral” to describe a score of #3 on what I’m guessing is a five-point scale used for rating directors’ performances.

The word “seems somewhat vague”, the BGC noted, asking staff to “consult with external resources and suggest replacement for the term ‘neutral’ on the rating scale”.

I really hope “consult with external resources” means “google it” rather than “piss away registrants’ money on pricey consultants”, but I’m not confident.

The word I’d use is “mediocre”. If you have a better suggestion there’s a comments section below.

ICANN beefs up background checks on directors amid concerns about vice-chair

ICANN is to beef up background screening procedures for its own board of directors after concerns were raised about financial integrity.
Directors in four seats that were not previously subject to screening have voluntarily agreed to checks “immediately” and ICANN has urged two of its supporting organizations to bring in such checks as standard.
Chris Disspain and Mike Silber, selected by the Country Code Names Supporting Organization, and Generic Names Supporting Organization selectees Becky Burr and Matthew Shears are these volunteers.
Neither the GNSO nor ccNSO currently screen their director picks to the same standard as other supporting organizations and the Nominating Committee.
ICANN said that they will be checked for “negative indicators such as discrepancies on a resume (including licenses, educational history and employment history), or publicly reported issues of financial mismanagement, fraud, harassment and mishandling of confidential information”.
The board passed a resolution last Thursday calling for the two SOs to bring in “the same or similar” screening procedures for future directors.
The resolution was passed minutes before the formal handover of power from outgoing chair Steve Crocker to new chair Cherine Chalaby. Disspain is the new vice-chair, replacing Chalaby.
ICANN had been put under pressure to widen its director due diligence earlier in the week by consultant and long-time ICANN community member Ron Andruff, who is known to have concerns about Disspain’s financial integrity.
Andruff spoke at an open-mic session with the board last Monday to recommend that the four anomalous directors face screening before the board was re-seated just a few days later.
“We’re talking about risk,” he said. “We’re talking about making sure that we do not put our institution that we’ve worked so hard to put into ICANN 2.0 in a place where we have four people that might have something, or not. And quite frankly, I don’t expect we’re going to find anything. I just want to make sure that we’ve checked that box,” Andruff said.
“We have the resources to do four background screenings between now and Thursday. No one expects any issues to surface. But this simple act will ensure that the institution is properly protected,” Andruff said.
Then-chair Crocker responded that it would not be possible to do the checks so quickly, but agreed in principle with the need for screening and said the board had had “substantial discussions” on the matter.
Andruff is former chair-elect of the Nominating Committee, which chooses eight directors and subjects all of its appointees to background screening.
He recently made a Freedom of Information Act request in Australia related to the circumstances leading to Disspain getting fired as CEO of local ccTLD administrator auDA in March 2016.
Disspain was let go after his relationship with the auDA board became “increasingly strained over issues of process, transparency and accountability”, according to an external review published by auDA in October last year.
auDA’s practices had “not kept pace with auDA’s growth in scale and importance to the Australian community, nor with evolving good practice in governance and accountability”, this review found.
The review did not directly allege any wrongdoing by Disspain.
A separate and currently unpublished review around the same time by PPB Advisory found that auDA had been “under-reporting” so-called “fringe benefit tax” to the Aussie tax authorities, according to auDA board meeting minutes.
FBT is tax companies must pay on employee benefits such as a company car or payment of private expenses.
There’s no clear indication in the public record that this under-reporting was directly related to benefits Disspain received, though the under-reporting very likely happened at least partially during his 15 years as CEO.
A slide deck discussing the PPB review published by auDA identified “a lack of formal policies and procedures governing how travel and expenses were managed”.
It added: “There were high levels of expenditure on international travel and reimbursement arrangements with international bodies that lacked transparency, which should have warranted a more robust process”.
All expenses incurred by ICANN’s directors and reimbursed in relation to their duties are a matter of public record.
Disspain receives not only a $45,000 annual salary but also tens of thousands of dollars in reimbursements each year, much of which is related to directors’ extensive travel obligations, these records show.
In its last reported tax year, to June 30, 2016, he received $68,437 in reimbursements, according to a published document (pdf). ICANN directly paid another $32,951 on his behalf.
A number of allegations have been made to DI (and, I believe, to other bloggers) over the last few months about alleged wrongdoing by Disspain in connection to these nuggets of information, but they’ve come from sources who refuse to identify themselves or provide corroborating evidence.
Despite efforts, I’ve been unable to independently verify these anonymous claims, which come amid turbulent times for auDA and its members, so I’ve chosen not to repeat them.
Andruff, meanwhile, has used FOI law to ask the Australian government, which has oversight of auDA, for the full PPB report, as well as documents related to the FBT issue, Disspain’s termination and his travel expenses.
Andruff and Disspain are known to have a history of friction.
Two years ago, Andruff expressed his anger after having been passed over for the job of chair of the NomCom, a role that be believes should have gone to him as chair-elect.
He lost the opportunity after the ICANN board, exercising its bylaws-permitted discretion, accepted the recommendation of its Board Governance Committee — at the time chaired by Disspain — that it be given to Stephane Van Gelder instead.
The original deadline for the Australian government response to Andruff’s FOI request was October 16, but this has been extended twice, now to November 19, due to the complexity of the request.
The eventual response will no doubt be read with interest.

Time to show ICANN who’s boss!

You are in charge of ICANN.
That statement may sound trite — it is trite — but it’s always been true to some extent.
Even if their individual voices are often lost, members of the ICANN community have always had the ability to influence policy, whether through sporadic responses to public comment periods or long term, soul-crushing working group volunteer work.
ICANN only really has power through community consent.
That’s another trite statement, but one which became more true on October 1 last year, when ICANN separated itself from US government oversight and implemented a new set of community-created bylaws.
The new bylaws created a new entity, the “Empowered Community”, which essentially replaced the USG and is able to wield more power than the ICANN board of directors itself.
Indeed, the Empowered Community can fire the entire board if it so chooses; a nuclear option for the exercise of community control that never existed before.
And the EC is, at the ICANN 59 public meeting in Johannesburg at the end of the month, about to get its first formal outing.
What the EC will discuss is pretty dull stuff. That’s why I had to trick you into reading this post with an outrageous, shameless, sensationalist headline.
Before getting into the substance of the Johannesburg meeting, I’m going to first bore you further for several paragraphs by attempting to answering the question: “What exactly is the Empowered Community?”
The EC exists an an “unincorporated association” under California law, ICANN deputy general counsel Sam Eisner told me.
It doesn’t have shareholders, directors, staff, offices… you wouldn’t find it by searching California state records. But it would have legal standing to take ICANN to court, should the need arise.
It was basically created by the new ICANN bylaws.
It comprises the five major constituencies of ICANN — the Generic Names Supporting Organization, the Country Code Names Supporting Organization, the Governmental Advisory Committee, the At-Large Advisory Committee and the Address Supporting Organization.
They’re called “Decisional Participants” and each is represented on a committee called the EC Administration by a single representative.
Right now, each group is represented on the Administration by its respective chair — GNSO Council chair James Bladel of GoDaddy represents the GNSO currently, for example — but I gather that doesn’t necessarily have to be the case; each group can decide how it appoints its rep.
Bladel tells me that each representative only takes action or casts a vote after being told to do so by their respective communities. As individuals, their power is extremely limited.
When the EC makes decisions, there must always be at least three votes in favor of the decision and no more than one vote against. A 3-1 vote would count as approval, a 3-2 vote would not.
This is to make sure that there is a fairly high degree of consensus among stakeholders while also preventing one community stonewalling the rest for strategic purposes.
The EC’s nine powers are enumerated in article 6.2 of the ICANN bylaws.
It can hire and fire an unlimited number of directors, reject the ICANN budget, file Requests for Reconsideration or Independent Review Process appeals, sue ICANN, and oversee changes to the ICANN bylaws.
Most of these powers are reactive — that is, if the ICANN board did something terrible the EC would have to consciously decide to act upon it in some way.
But one of them — approval of changes to Fundamental Bylaws — places the EC squarely in the legislative pathway. Think of it like the Queen of England’s Royal Assent or the US president’s ability to veto bills before they become law.
That’s the role the EC will adopt in Joburg this month.
The ICANN board recently passed a resolution calling for a new board committee to be created to focus on handling accountability mechanisms such as Reconsideration, removing the function from the overworked Board Governance Committee.
Because this requires a change to a Fundamental Bylaw — those bylaws considered so important they need more checks and balances — the EC has been called upon to give it the community’s formal consent.
To the best of my knowledge, the bylaws amendment is utterly uncontroversial. I haven’t heard of any objections or complaints about what essentially seems to be a probably beneficial tweak in how ICANN’s board functions.
But it will be the EC’s first formal exercise of executive power.
So there will be a session at ICANN 59 in which the EC convenes to discuss the board’s resolution and, probably, hear any input it has not already heard.
The exact format of the session seems to be up in the air at the moment, but I gather an open-mic “public forum” style meeting of about an hour is the most likely choice. It will of course be webcast, with remote participation, as almost all ICANN public meetings are.
No votes will be cast at the session — I’m told the bylaws actually forbid it — but the EC will have only 21 days afterwards to poll their communities and formally deliver their verdict. Assuming at least three of the communities consent to the board resolution and no more than one objects, it will automatically become ICANN law.
The next test of the EC, which would prove to be actually newsworthy enough to write about without a clickbait headline, may well be the ICANN budget. ICANN’s financial year ends at the end of June, and the EC has explicit powers to reject it.
The budget often raises concerns from those parties who actually pay into it, and given the difficulties the industry is in right now there may be more concerns than usual.
Anyway, this is the way ICANN works nowadays. It would make for more interesting reading if a triumvirate of Iran, China and Russia now ran the show, but they don’t. You lot do.
Just be glad Donald Trump isn’t holding the reins.
Sorry, that was also trite, wasn’t it.

.gay, .music and others in limbo as ICANN probes itself

Several new gTLD applicants have slammed ICANN for conducting an investigation into its own controversial practices that seems to be as opaque as the practices themselves.
Seven proposed new gTLDs, including the much-anticipated .music and .gay, are currently trapped in ICANN red tape hell as the organization conducts a secretive probe into how its own staff handled Community Priority Evaluations.
The now broad-ranging investigation seems have been going on for over six months but does not appear to have a set deadline for completion.
Applicants affected by the delays don’t know who is conducting the probe, and say they have not been contacted by anyone for their input.
At issue is the CPE process, designed to give genuine “community” gTLD applicants a way to avoid a costly auction in the event that their choice of string was contested.
The results of the roughly 25 CPE decisions, all conducted by the independent Economist Intelligence Unit, were sometimes divergent from each other or just baffling.
Many of the losers complained via ICANN’s in-house Requests for Reconsideration and then Independent Review Process mechanisms.
One such IRP complaint — related to Dot Registry’s .inc, .llc, .llp applications — led to two of the three-person IRP panel deciding last July that ICANN had serious questions to answer about how the CPE process was carried out.
While no evidence was found that ICANN had coached the EIU on scoring, it did emerge that ICANN staff had supplied margin notes to the supposedly independent EIU that had subsequently been incorporated into its final decision.
The IRP panel majority wrote that the EIU “did not act on its own in performing the CPEs” and “ICANN staff was intimately involved in the process”.
A month or so later, the ICANN board of directors passed a resolution calling for the CEO to “undertake an independent review of the process by which ICANN staff interacted with the CPE provider”.
Another month later, in October, the Board Governance Committee broadened the scope of the investigation and asked the EIU to supply it with documents it used to reach its decisions in multiple controversial CPE cases.
A couple of weeks ago, BGC chair Chris Disspain explained all this (pdf) to the applicants for .music, .gay, hotel, .cpa, .llc, .inc, .llp and .merck, all of which are affected by the delay caused by the investigation.
He said that the investigation would be completed “as soon as practicable”.
But in response, Dot Registry and lawyers for fellow failed CPE applicant DotMusic have fired off more letters of complaint to ICANN.
(UPDATE: Dot Registry CEO Shaul Jolles got in touch to say his letter was actually sent before Disspain’s, despite the dates on the letters as published by ICANN suggesting the opposite).
Both applicants note that they have no idea who the independent party investigating the CPEs is. That’s because ICANN hasn’t identified them publicly or privately, and the evaluator has not contacted the applicants for their side of the story.
DotMusic’s lawyer wrote (pdf):

DotMusic’s rights are thus being decided by a process about which it: (1) possesses minimal information; (2) carried out by an individual or organization whose identity ICANN is shielding; (3) whose mandate is secret; (4) whose methods are unknown; and (5) whose report may never be made public by ICANN’s Board.

He added, pointedly:

The exclusion of directly affected parties from participation eerily reproduces the shortcomings of the EIU evaluations that are under scrutiny in the first place.

Dot Registry CEO Shaul Jolles, in his letter (pdf), quoted Disspain saying at a public forum in Copenhagen this March that a blog post addressing the concerns had been drafted and would be published “shortly”, but wasn’t.
He suggested the investigation is “smoke and mirrors” and, along with DotMusic, demanded more information about the investigator’s identity and methods.
It does strike me as a looking a bit like history repeating itself: ICANN comes under fire for non-transparently influencing a supposedly independent review and addresses those criticisms by launching another non-transparent supposedly independent review.
No matter what I feel about the merits of the “community” claims of some of these applicants, it has been over five years now since they submitted their applications and the courtesy of transparency — if closure itself its not yet possible — doesn’t seem like a great deal to ask.

.web auction to go ahead after ICANN denies Donuts/Radix appeal

The new gTLD .web seems set to go to auction next week after ICANN rejected an 11th-hour delay attempt by two applicants.
ICANN’s Board Governance Committee said yesterday that there is no evidence that applicant Nu Dot Co has been taken over by a deep-pocketed third party.
The BGC therefore rejected Donuts’ and Radix’s joint attempt to have the July 27 “last resort” auction delayed.
Donuts and Radix had argued in a Request for Reconsideration earlier this week that Nu Dot Co has changed its board of directors since first applying for .web, which would oblige it to change the application.
Its failure to do so meant they auction should be delayed, they said.
They based their beliefs on an email from NDC director Jose Ignacio Rasco, in which he said one originally listed director was no longer involved with the application but that “several others” were.
There’s speculation in the contention set that a legacy gTLD operator such as Verisign or Neustar might now be in control of NDC.
But the BGC said ICANN had already “diligently” investigated these claims:

in response to the Requesters’ allegations, ICANN did diligently investigate the claims regarding potential changes to Nu Dot’s leadership and/or ownership. Indeed, on several occasions, ICANN staff communicated with the primary contact for Nu Dot both through emails and a phone conversation to determine whether there had been any changes to the Nu Dot organization that would require an application change request. On each occasion, Nu Dot confirmed that no such changes had occurred, and ICANN is entitled to rely upon those representations.

ICANN staff had asked Rasco via email and then telephone whether there had been any changes to NDC’s leadership or control, and he said there had not.
He is quoted by he BGC as saying:

[n]either the ownership nor the control of Nu Dotco, LLC has changed since we filed our application. The Managers designated pursuant to the company’s LLC operating agreement (the LLC equivalent of a corporate Board) have not changed. And there have been no changes to the membership of the LLC either.

The RfR has therefore been thrown out.
Unless further legal action is taken, the auction is still scheduled for July 27. The deadline for all eight applicants (seven for .web and one for .webs) to post deposits with ICANN passed on Wednesday.
As it’s a last resort auction, all funds raised will go into an ICANN pot, the purpose of which has yet to be determined. The winning bid will also be publicly disclosed.
Had the contention set been settled privately, all losing applicants would have made millions of dollars of profit from their applications and the price would have remained a secret.
NDC is the only applicant refusing to go to private auction.
The applicants for .web are NDC, Radix, Donuts, Schlund, Afilias, Google and Web.com. Vistaprint’s bid for .webs is also in the auction.
The RfR decision can he read here (pdf).

dotgay has a third crack at .gay appeal

dotgay LLC has filed another appeal with ICANN, hoping to get its community-based .gay application back in the race.
It submitted a third Request for Reconsideration (pdf) this week, arguing on a technicality that its bid should have another Community Priority Evaluation.
The company has already lost two CPEs based on the Economist Intelligence Unit CPE panel’s belief that its definition of “gay” is too broad because it includes straight people.
It’s also lost two RfRs, which are adjudicated by ICANN’s Board Governance Committee.
The newest RfR addresses not the core “not gay enough” issue, but a procedural error at the EIU it believes it has identified.
According to the filing, dotgay is in possession of emails from an EIU employee who was responsible for verifying some of the dozens of support letters it had received from dotgay’s backers (generally equal rights campaign groups).
The company argues, citing the BGC’s own words, that this employee was not one of the official CPE “evaluators”, which means the EIU broke its own rules of procedure:

considering the fact that the CPE Process Document – which is considered by the BGC to be “consistent with” and “strictly adheres to the Guidebook’s criteria and requirements”, it is clear that the verification of the letters should have been performed by an independent evaluator… and not by someone “responsible for communicating with the authors of support and opposition letters regarding verification in the ordinary course of his work for the EIU”.

It wants the CPE to be conducted again, saying “it is obvious that the outcome of a process is often, if not always, determined by the fact whether the correct process has been followed”.
It’s difficult to see how the outcome of a third CPE, should one be undertaken, could be any different to the first two. Who verifies the support letters doesn’t seem to speak to the reason dotgay hasn’t scored enough points on its other two attempts.
But the alternative for the company is an expensive auction with the other .gay applicants.
Another CPE would at least buy it time to pile more political pressure on ICANN and the EIU.