.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.

Second emergency registry tested with dead dot-brand

ICANN is running its second test of the Emergency Back-End Registry Operator system, designed as a failover for bankrupt gTLDs.
This time, the EBERO under the microscope is CORE Association, one of the three approved providers.
It this week took over operation of .mtpc, a dot-brand gTLD that Mitsubishi applied for, was delegated, never used, and then decided it didn’t want to run any more.
ICANN said:

ICANN is conducting a test of the Emergency Back-End Registry Operator program. Simulating an emergency registry operator transition will provide valuable insight into the effectiveness of procedures for addressing potential gTLD service interruptions. Lessons learned will be used to support ICANN’s efforts to ensure the security, stability and resiliency of the Internet and the Domain Name System.

The first test was conducted by ICANN and EBERO provider Nominet earlier this year, using the similarly unloved dot-brand .doosan.
I expect we’ll see a third test before long, using CNNIC, the third EBERO provider.
It would have plenty of dead dot-brands to choose from.

Hey, you! Listen to the ICANN board webcast more private sessions

ICANN’s board of directors is to live stream two sessions during an upcoming retreat, and if you’re at all interested in ICANN you really ought to tune in.
The webcasts are part of an ongoing pilot program designed to increase transparency at the very top of ICANN’s policy-making reverse-hierarchy.
The public, listen-only sessions seem to have been cherry-picked from the broader program of a retreat in Geneva over the May 6-7 weekend, and are:

Marketplace Dynamics Session I: Registries and Registrars
Saturday, 6 May, 11:15 – 12:00 UTC
Internet Governance Engagement Strategy with a Focus on the Internet Governance Forums (IGFs): Proposal to the Board
Sunday, 7 May, 09:00 – 10:00 UTC

Neither session sounds earth-shatteringly exciting, but both will be worth a listen in my view.
If nobody listens, ICANN could fairly say that streaming board meetings is a waste of money and stop doing it rather than expanding the program in future. That reduction of transparency would be in nobody’s interests.
The most recent live sessions occurred during ICANN 58 in Copenhagen last month, but until I ranted on Twitter nobody apart from me was listening.
That’s despite the fact that increased board transparency has been something the community has been crying out for for years.
So if you agree with transparency but find the chosen topics boring, perhaps just open the Adobe Connect room, hit mute, and go for brunch or play with your kids or something.
The Adobe links can be found here.
Disclosure: now that I’ve written this post, I think it’s almost inevitable that I will accidentally miss one or both of these sessions. You’re welcome to mock me should that happen (though you’ll only know whether I was there if you tune in yourself).

MarkMonitor tells .feedback to take a hike after “breach” claim

MarkMonitor is to voluntarily terminate its registrar relationship with Top Level Spectrum after the .feedback registry hit it with a breach of contract notice.
Troy Fuhriman, director of domain management at the registrar, told DI today that the company has just sent TLS a letter stating that it no longer wishes to sell .feedback names.
TLS earlier this month accused MarkMonitor of breaking the terms of its Registry-Registrar Agreements by leaking details of that agreement to media outlets including yours truly.
While TLS CEO Jay Westerdal told DI that an apology from MarkMonitor would be enough to make the termination threat go away, MarkMonitor has clearly decided against that route.
“We’re going to terminate all accreditation agreements for .feedback,” he said. “In part it’s a response to ICANN’s finding that Top Level Spectrum violated its Pubic Interest Commitments, and what we believe is a retaliatory breach notification from them.”
MarkMonitor and a small posse of high-profile clients including Facebook recently won a Public Interest Commitment Dispute Resolution Policy complaint against .feedback, related to the transparency of its launch policies and pricing.
It was in that complaint that MarkMonitor released details contained in the RRA that TLS deemed to be confidential.
Terminating the agreement means that MarkMonitor will no longer be able to sell .feedback names as a registrar and will have to transfer its existing registrations to a different registrar.
Not many clients are affected. MarkMonitor had only 45 .feedback domains under management at the last count (which was still enough to make it the fourth-largest independent .feedback registrar).
Most of these domains will be moved to 101domain, which with fewer than 200 domains is still the leading .feedback registrar.
UPDATE: Westerdal says that MarkMonitor was in fact terminated on Monday. Neither party claims that MarkMonitor made any effort to comply with the breach notice by apologizing.

ICANN attendance shrank in Denmark

Attendance at ICANN’s recent meeting in Copenhagen was down about 8% on the comparable meeting a year earlier in Marrakech, according to ICANN statistics.
There were 2,089 at the Denmark meeting, down from 2,273 reported a year ago in Morocco.
The decline appears to be largely a result of relatively lower local participation. Africa is usually under-represented at ICANN meetings, but there was a surge in Marrakech, with almost 956 attendees hailing from the continent.
About half of Copenhagen participants — 1,012 people, of which 417 were first-timers — were European.
The number of remote participation attendees was much higher in Copenhagen. ICANN counted 4,428 unique users logging into Adobe Connect meeting rooms, compared to 3,458 in Marrakech.
Both Copenhagen and Marrakech, ICANNs 55 and 58, are designated as “community forums”, meaning they follow the traditional ICANN schedule. ICANN 56 was a shorter, policy-focused meeting and ICANN 57 was a longer meeting with a focus on outreach.
The stats for Copenhagen can be downloaded here (pdf).

Verisign to keep price increase power under new .net contract

The wholesale price of a .net domain is likely to top $15 by 2023, under a proposed renewal of its ICANN contract revealed today.
ICANN-imposed price caps are staying in the new Registry Agreement, but Verisign retains the right to increase its fees by 10% in each of the six years of the deal’s lifespan.
But domain investors do have at least one reason to be cheerful — while the contract adds many features of the standard new gTLD registry agreement, it does not include a commitment to implement the Uniform Rapid Suspension anti-cybersquatting procedure.
The current .net annual fee charged to registrars is $8.95 — $8.20 for Verisign, $0.75 for ICANN — but Verisign will continue to be allowed to increase its portion by up to 10% a year.
That means the cost of a .net could hit $15.27 wholesale (including the $0.75 ICANN fee) by the time the proposed contract expires in 2023.
Verisign has form when it comes to utilizing its price-raising powers. It exercised all six options under its current contract, raising its share of the fee from $4.65 in 2011.
On the bright side for volume .net holders, the prices increases continue to be predictable. ICANN has not removed the price caps.
Also likely to cheer up domainers is the fact that there are no new intellectual property protection mechanisms in the proposed contract.
Several post-2000 legacy gTLDs have agreed to incorporate the URS into their new contracts, leading to outrage from domainer organization the Internet Commerce Association.
ICA is worried that URS will one day wind up in .com without a proper ICANN community consensus, opening its members up to more risk of losing valuable domains.
The fact that URS is not being slipped into the .net contract makes it much less likely to be forced on .com too.
But Verisign has agreed to several mostly technical provisions that bring it more into line with the standard 2012-round new gTLD RA.
For example, it appears that daily .net zone files will become accessible via ICANN’s Centralized Zone Data Service before the end of the year.
Verisign has also agreed to standardize the format of its data escrow, Whois and monthly transaction reports.
The company has also agreed to start discussions about handing .net over to an emergency back-end operator in the event it files for bankruptcy.
The current contract is due to expire at the end of June and the proposed new deal would kick in July 1.
It’s now open for public comment until June 13.

ICANN loosens Whois privacy rules for registrars

ICANN has made it easier for registries and registrars to opt-out of Whois-related contractual provisions when they clash with local laws.
From this week, accredited domain firms will not have to show that they are being investigated by local privacy or law enforcement authorities before they can request a waiver from ICANN.
Instead, they’ll be also be able to request a waiver preemptively with a statement from said authorities to the effect that the ICANN contracts contradict local privacy laws.
In both cases, the opt-out request will trigger a community consultation — which would include the Governmental Advisory Committee — and a review by ICANN’s general counsel, before coming into effect.
The rules are mainly designed for European companies, as the EU states generally enjoy stricter privacy legislation than their North American counterparts.
European registrars and registries have so far been held to a contract that may force them to break the law, and the only way to comply with the law would be to wait for a law enforcement proceeding.
ICANN already allows registrars to request waivers from the data retention provisions of the 2013 Registrar Accreditation Agreement — which require the registrar to hold customer data for two years after the customer is no longer a customer.
Dozens of European registrars have applied for and obtained this RAA opt-out.

Pirate Bay founder launches piracy-friendly domain privacy service

The founder of controversial BitTorrent search engine The Pirate Bay has entered the domain name market with a new proxy service.
It’s called Njalla, it’s based in a Caribbean tax haven, and it says it offers a higher level of privacy protection than you get anywhere else.
The company described itself in its inaugural blog post today like this:

Think of us as your friendly drunk (but responsibly so) straw person that takes the blame for your expressions. As long as you keep within the boundaries of reasonable law and you’re not a right-wing extremist, we’re for promoting your freedom of speech, your political weird thinking, your kinky forums and whatever.

Founder Peter Sunde was reluctant to describe Njalla as a proxy registration service, but it’s difficult to think of another way of describing it.
When you buy a domain via the company’s web site, the name is registered by Njalla for itself. You can still use the domain as you would with a regular registrar, but the name is “owned” by Njalla (1337 LLC, based in Saint Kitts & Nevis).
The company is a Tucows reseller via OpenSRS, and it supports almost all gTLDs and several ccTLDs (it’s declined to support Uniregistry due to recent price increase announcements).
Prices are rather industry standard, with a .com setting you back €15 ($16).
The big difference appears to be that the service doesn’t want to know anything about its registrants. You can sign up with just an email address or, unusually, an XMPP address. It doesn’t want to know your name, home address, or anything like that.
This means that whenever Njalla receives a legal request for the user’s identity, it doesn’t have much to hand over.
It’s based on Nevis due to the strong privacy laws there, Sunde said.
Under what circumstances Njalla would suspend service to a customer and hand over their scant private information appears to be somewhat vague and based on the subjective judgement or politics of its management.
“As long as you don’t hurt anyone else, we’ll let you do your thing,” Sunde said.
Child abuse material is verboten. Spam is in a “gray zone” (although forbidden by Njalla’s terms of service).
Copyright infringement appears to be just fine and dandy, which might not be surprising. Sunde founded The Pirate Bay in 2003 and spent time in prison in Sweden for assisting copyright infringement as a result.
“You don’t hurt people by putting a movie online,” Sunde said. “You do hurt someone by putting child porn or revenge porn or stuff like that… If you look at any statistics on file sharing, it proves that the more people file-share the more money goes into the ecosystem of the media.”
While this is likely to upset the IP lobby within the domain name community, I think there’s a possibility that existing ICANN policy will soon have an impact on Njalla’s ability to operate as it hopes.
ICANN is in the process of implementing a privacy/proxy services accreditation program that will require registrars to only work with approved, accredited proxy services.
Sunde thinks Njalla doesn’t fall into the ICANN definition of a proxy service, and said his lawyers agree.
Personally, I can’t see the distinction. I expect ICANN Compliance will probably have to make a call one way or the other one day after the accreditation system comes online.

IANA boss quits ICANN

The head of IANA is to leave the organization, ICANN announced this week.
Elise Gerich, currently vice president of IANA Services at ICANN and president of Public Technical Identifiers (PTI), will leave in October, according to a blog post.
She’ll stick around long enough to oversee the DNS root’s first DNSSEC Key-Signing Key rollover, which is due to go ahead October 11.
Gerich has been VP of IANA since May 2010, and took on the job of PTI president last October when the IANA function was restructured to remove the US government from the mix.
ICANN said it will start the hunt for her replacement shortly.

Companies losing $10 BILLION by ignoring new gTLDs — report

The world economy is “conservatively” losing out on almost $10 billion of annual revenue due to a lack of support for new gTLDs and internationalized domain names, according to an ICANN-commissioned research report.
The report, conducted by Analysys Mason for the semi-independent Universal Acceptance Steering Group, calculated that patchy new gTLD support means $3.6 billion of activity is lost, with lack of IDN support costing $6.2 billion.
Despite “new” gTLDs being around for a decade and a half, there are still plenty of web sites and apps that incorrectly assume that all TLDs are either two or three characters. Others don’t support non-Latin scripts.
This leads to internet users abandoning transactions, the report says, when their email addresses are rejected as invalid.
Mason calculated the $3.6 billion number by multiplying the estimated number of email addresses using new gTLD domains (152 million) by the estimated average annual revenue generated per email address ($360), then calculating what portion of these transactions cannot happen due to incomplete TLD support.
Earlier research by .CLUB Domains suggests that 13% of sites do not support new gTLDs, so that’s the number Mason used. The researchers then cut the number in half, to account for the 50% of people it reckons would simply switch to an email address in a legacy TLD name.
That gets you to $3.6 billion of potential revenue lost for want of gTLD support.
Another, more cynical way to spin this would be to say that new gTLDs are causing $3.6 billion of economic damage. After all, if everyone were to use legacy TLDs there would be no problem.
For the IDN number, Mason calculated how many users of five major language groups (Russian, Chinese, Arabic, Vietnamese and Indian languages) are not currently online, then estimated how much revenue would be generated if just 5% of these users (17 million people) were persuaded online by the existences of IDN TLDs.
The report was commissioned in order to raise awareness of the financial benefits of universal acceptance.
The UASG has spent most of its efforts so far focusing on UA as a “bug fix” to be communicated to engineers, so the report is intended to broaden its message to catch the attention of the money people too.
The report, which goes into much more detail about how the numbers were arrived at, can be downloaded here.