.hotel fight gets nasty with “criminal” hacking claims

A group of would-be .hotel gTLD registries have called on ICANN to reject the winning applicant’s bid or be complicit in “criminal acts”.
The group, which includes Travel Reservations, Famous Four Media, Radix, Minds + Machines, Donuts and Fegistry is threatening to file a second Independent Review Process complaint unless ICANN complies with its demands.
Six applicants, represented by Flip Petillion of Crowell & Moring, claim that Hotel Top Level Domain Sarl should forfeit its application because one of its representatives gained unauthorized access to their trade secrets.
That’s a reference to a story we covered extensively last year, where an ICANN audit found that DotBerlin CEO Dirk Krischenowski, or at least somebody using his credentials, had accessed hundreds of supposedly confidential gTLD application documents on ICANN’s web site.
Krischenowski, who has denied any wrongdoing, is also involved with HTLD, though in what capacity appears to be a matter of dispute between ICANN and the rival .hotel applicants.
In a month-old letter (pdf) to ICANN, only published at the weekend, Petillion doesn’t pull many punches.
The letter alleges:

Allowing HTLD’s application to proceed would go agaist everthing that ICANN stands for. It would amount to an acquiescence in criminal acts that were committed with the obvious intent to obtain an unfair advantage over direct competitors.
…
ICANN caught a representative of HTLD stealing trade secrets of competing applicants via the use of computers and the internet. The situation is even more critical as the crime was committed with the obvious intent of obtaining sensitive business information concerning a competing applicant.

It points out that ICANN’s Applicant Guidebook disqualifies people from applying for a new gTLD if they’ve been convicted of a computer crime.
To the best of my knowledge Krischenowski has not been convicted of, or even charged with, any computer crime.
What ICANN says he did was use its new gTLD applicants’ customer service portal to search for documents which, due to a dumb misconfiguration by ICANN, were visible to users other than their owners.
Krischenowski told DI in an emailed statement today:

According to ICANN, the failure in ICANN’s CSC and GDD portals was the result of a misconfiguration by ICANN of the software used (as mentioned at https://www.icann.org/news/announcement-2-2015-11-19-en). As a user, I relied on the proper functioning of ICANN’s technical infrastructure while working with ICANN’s CSC portal.

HTLD’s application for .hotel is currently “On Hold”, though it is technically the winner of the seven-application contention set.
It prevailed after winning a controversial Community Priority Evaluation in 2014, which was then challenged in an Independent Review Process case by the applicants Petillion represents.
They lost the IRP, but the IRP panelists said that ICANN’s failure to be transparent about its investigation into Krischenowski could amount to a breach of its bylaws.
In its February ruling, the IRP panel wrote:

It is not clear if ICANN has properly investigated the allegation of association between HTLD and D. Krischenowski and, if it has, what conclusions it has reached. Openness and transparency, in the light of such serious allegations, require that it should, and that it should make public the fact of the investigation and the result thereof.

The ruling seems to envisage the possibility of a follow-up IRP.
ICANN had told the panel that its investigation was not complete, so its failure to act to date could not be considered inaction.
The ICANN board resolved in March, two days after Petillion’s letter was sent, to “complete the investigation” and “provide a report to the Board for consideration”.
While the complaining applicants want information about this investigation, their clear preference appears to be that the HTLD application be thrown out.

.sucks “gag order” dropped, approved

Vox Populi, the .sucks registry, has had controversial changes to its registrar contract approved after it softened language some had compared to a “gag order”.
ICANN approved changes to the .suck Registry-Registrar Agreement last week, after receiving no further complaints from registrar stakeholders.
Registrars had been upset by a proposed change that they said would prevent brand-protection registrars from publicly criticizing .sucks:

The purpose of this Agreement is to permit and promote the registration of domain names in the Vox Populi TLDs and to allow Registrar to offer the registration of the Vox Populi TLDs in partnership with Vox Populi. Neither party shall take action to frustrate or impair the purpose of this Agreement.

But Vox has now “clarified” the language to remove the requirement that registrars “promote” .sucks names. The new RRA will say “offer” instead.
Registrars had also complained that the new RRA would have allowed Vox to unilaterally impose new contractual terms with only 15 days notice.
Vox has amended that proposal too, to clarify that changes would come into effect 15 days after ICANN has given its approval.
Vox CEO John Berard told ICANN in a March 18 letter:

VoxPop’s intent was never to alter any material aspect of the Registry Registrar Agreement. Our intent was to clarify legal obligations that already exist in the Agreement, and conform the timeframes for any future amendments with those specified in our ICANN registry contract.

Burr to replace Tonkin on ICANN board

ICANN lifer Becky Burr is to replace Bruce Tonkin on the ICANN board of directors when his term expires in November.
She’ll take the seat reserved for the Contracted Parties House of the Generic Names Supporting Organization, following a vote by registries and registrars a few weeks ago.
Tonkin, CTO of Aussie registrar Melbourne IT, has held the seat for the last nine years. He’s limited to three consecutive three-year terms under ICANN bylaws.
Burr, a lawyer by trade, is currently chief privacy officer at TLD registry Neustar, a position she has held since 2012.
Before that, she was a partner at the law firm Wilmer Hale.
But way back in 1998, in a senior role at the US National Telecommunications and Information Administration, she was one of the key people responsible for ICANN’s creation under the Clinton administration.

Facebook bought a registrar

Facebook has acquired a domain name registrar, according to its point person in ICANN.
Facebook domain manager Susan Kawaguchi said on tonight’s GNSO Council teleconference, as a matter of disclosure, that Facebook recently acquired a registrar.
Multiple sources say the registrar is RegistrarSEC LLC.
DI records show that RegistrarSEC took over the ICANN registrar accreditation of Focus IP Inc, doing business as AppDetex, on March 26.
RegistrarSEC is led by one of the long-gone founders of brand protection registrar MarkMonitor, Faisal Shah, and Chris Bura, founder of Alldomains.com.
Facebook is one of MarkMonitor’s most prominent clients.
RegistrarSEC is not a conventional registrar. It had just 11 registrations under its IANA ID at the end of 2015.
But its parent was founded in 2013 as primarily a provider of brand protection services focused on the mobile app space.
My guess is that Facebook is interested in RegistrarSEC’s parent’s intellectual property, rather than its registrar.

Did the DotConnectAfrica judge make a big dumb mistake?

The court ruling that granted DotConnectAfrica a preliminary injunction preventing ICANN delegating .africa seems to be based to a large extent on a huge error by the judge.
In explaining why he was allowing DCA v ICANN to proceed, despite DCA’s signing away its right to sue when it filed its new gTLD application, California district judge Gary Klausner seems to have confused DCA with rival .africa applicant ZACR.
In his Tuesday ruling, Klausner said that evidence supports the claim that ICANN was determined to flunk DCA’s application no matter what.
The key evidence, according to the judge, is that the Initial Evaluation of DCA’s application found that it did have enough support from African governments to pass its Geographic Names Review, but that ICANN subsequently reversed that view in Extended Evaluation.
He wrote:

DCA claims that “the process ICANN put Plaintiff through was a sham with a predetermined ending – ICANN’s denial of Plaintiff’s application so that ICANN could steer the gTLD to ZACR.”
…
In support, DCA offers the following evidence. ICANN’s initial evaluation report in July 2013 stated that DCA’s endorsement letters “met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) After the IRP Decision, ICANN performed a second evaluation on the same information originally submitted by DCA. In the second evaluation, however, ICANN found that the endorsement letters did not meet the same criteria applied in the first evaluation

He later writes:

Despite ICANN’s contention, the evidence presents serious questions pointing in favor of DCA’s argument. First, a March 2013 email from ICC to ICANN stated that ICANN needs to clarify AUC’s endorsements since AUC properly endorsed both DCA and ZACR. (Bekele Decl. ¶ 30, Ex. 19, ECF No. 17.) Subsequently, ICANN’s July 2013 initial evaluation report found that the endorsement letters have “met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) Because ICANN found DCA’s application passed the geographic names evaluation in the July 2013 initial evaluation report, the Court finds serious questions in DCA’s favor as to whether DCA’s application should have proceeded to the delegation stage following the IRP Decision.

The document “Bekele Decl. ¶ 40, Ex. 27” referred to is exhibit 27 of DCA CEO Sophia Bekele’s March 1 declaration, filed in support of its preliminary injunction motion.
The problem is that that exhibit is not the Initial Evaluation report for DCA’s .africa bid, it’s the IE report for rival ZACR (aka UniForum).
Read it here (pdf).
DCA’s own application never received a scored IE report. At least, one was never published.
It only got this (pdf), which states simply “Overall Initial Evaluation Summary: Incomplete”. That document is dated July 3, 2013, almost two weeks before the ZACR report.
Bekele’s declaration even states that exhibit 27 is the IE report for the ZACR application.
It’s not clear to this non-lawyer how important this pretty basic error is to Klausner’s thinking, but as a layman it looks pretty crucial.
It certainly seems like something that needs to be addressed, given that the apparent misunderstanding plays into both the decision to allow the lawsuit to proceed and the decision that DCA’s complaint may have merit.
Several other exhibits cited in the ruling — including emails from the InterConnect Communications evaluators who carried out the Geographic Names Review — have been redacted by the court.
It’s possible there are smoking guns contained within these censored documents that were more influential on the ruling.
It’s also notable that ICANN is continuing to redact the court documents it publishes on its web site, beyond those filed under seal and censored by the court.

It’s open season on ICANN as judge rules new gTLD applicants CAN sue

DotConnectAfrica has won a California court ruling that will allow it to continue suing ICANN over its twice-rejected .africa gTLD application.
District judge Gary Klausner ruled yesterday that the litigation waiver all applicants had to sign when they applied may be unenforceable.
“The Court finds substantial questions as to the Release, weighing toward its unenforceability,” he wrote (pdf).
California law says that such waivers cannot stop people being sued for fraud, and fraud is what DCA is alleging, he explained.

DCA alleges that ICANN intended to deny DCA’s application after the IRP proceeding under any pretext and without a legitimate reason.
…
The evidence suggests that ICANN intended to deny DCA’s application based on pretext. Defendants have not introduced any controverting facts. As such, the Court finds serious questions regarding the enforceability of the Release due to California Civil Code § 1668.

The judge granted DCA’s request for a preliminary injunction that will prevent it from delegating .africa to successful applicant ZACR.
ZACR has the backing of the African Union Commission and, per ICANN rules, over 60% of the governments in Africa.
DCA applied for .africa with no government support, but with an AUC letter of support than had already been retracted. The company claims that the AUC was not allowed to withdraw its endorsement under ICANN rules.
But it doesn’t seem to matter what the governments of Africa want. Klausner wrote:

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

Sorry Africa, no gTLD for you yet!
The case continues…

No, .kids isn’t a community either

DotKids Foundation has comprehensively lost is .kids Community Priority Evaluation.
The company’s CPE results came out at the weekend (pdf), showing a score of 6 out of the 16 available points, a long way short of the 14-point passing score.
Like other “community” new gTLD bids before it, .kids failed because the Economist Intelligence Unit panel decided that the application was an attempt to create a community rather than represent an existing one. It wrote:

The Panel determined that this application refers to a “community” construed to obtain a sought-after generic word as a gTLD string, and that the application is attempting to organize the various groups mentioned in the documentation through a gTLD.

The application scored a big fat 0/4 on the question of whether the community exists and, as a knock-on effect, another 0/4 on whether the .kids string represents the community.
It picked up 3/4 for its registration policies and 3/4 on community endorsement.
The CPE failure means DotKids will have to face rival Amazon at auction, where one imagines the not-for-profit foundation will have a hard time winning.
ICANN’s CPE pipeline currently only has one active application, where Merck KGaA is fighting to avoid an auction with rival Merck Registry Holdings, Inc.
The latter .merck, and Vistaprint’s .webs application, have both also been invited to CPE.

ICANN refuses to play Ted Cruz’s game

ICANN has blown off US senator Ted Cruz by declining to answer a bunch of framed questions about its engagement with China.
In a letter (pdf) to Cruz and fellow senators Michael Lee and James Lankford, ICANN chair Steve Crocker testily explains that ICANN has offices and relationships all over the world, given the nature of its mandate.
There’s a suggestion that ICANN’s board resents the “insinuation” that talking to China means it’s ready to be captured by it or implement its censorship policies.
Crocker wrote:

ICANN does not endorse the views of any particular stakeholder, regardless of the organization’s engagement efforts, the composition of its advisory committees, and where it holds its meetings. In this sense, ICANN’s engagement with China as a global Internet stakeholder does not suggest any level of support for the nation’s government or its policies. Similarly, no endorsement of such matters could reasonably be inferred from the operations of the United States’ largest technology firms operating in China, including Cisco, Dell, HP, IBM, Intel, LinkedIn, Microsoft, Qualcomm and Uber. These firms, like ICANN, do not endorse the policies, laws, and regulations of China simply by operating there. As long as the U.S. Government has a policy of engagement with China, U.S. firms operate there without the insinuation that doing so makes them complicit in China’s censorship.

The letter was written in response to a bullet-pointed list of a few dozen question Cruz has posed in letters over the last couple of months.
The Cruz missives were a fairly obvious fishing expedition, with the senators apparently looking for sticks to beat ICANN with in the form of evidence that the organization is too friendly with the dreaded Chinese.
Some on the right wing of American politics seem to see the transition of ICANN/IANA partially away from US government oversight as a wedge issue they can use to show Obama is happily selling the ‘Murican constitution to China.
But Crocker ducks most of Cruz’s questions, preferring instead to present an alternative narrative.
He does not, for example, give answers to simple factual questions related to former CEO Fadi Chehade’s joining as co-chair of a committee of the China-led World Internet Conference.
Instead, he refers Cruz to a previous letter from Chehade, and notes that Chehade is no longer with ICANN.
He does not answer anything related to XYZ.com’s proposals related to selling .xyz domain names in China, which Cruz reckons could be used to censor the people of Hong Kong.
Neither does he confirm that ICANN pays government-affiliated CNNIC for collocated office space in Beijing, which wasn’t disclosed until it came out at a press conference last month.
I imagine Cruz, in receipt of Crocker’s letter, is feeling much the same as I do when an interviewee waffles in response to simple questions.
Pissed off.
I doubt this exchange is over.

Minds + Machines dumps back-end and registrar in Nominet, Uniregistry deals

Minds + Machines is to get out of the registrar and back-end registry services markets in separate deals with Nominet and Uniregistry.
The cost-saving shake-up will lead to about 10 job losses, or about 25% to 30% of its current headcount, CEO Toby Hall told DI this morning.
Under the Nominet deal, M+M will outsource the back-end registry functions for 28 new gTLDs, currently managed in-house, to the .uk ccTLD manager.
The deal covers all the gTLDs for which M+M is the contracted party (such as .law, .cooking and .fashion), as well as the four it runs in partnership (eg .london) and the five where it currently acts as back-end for a third party registry (eg .broadway).
The company also plans to dump its “unprofitable” registrar entirely, migrating its existing customers to Uniregistry’s Uniregistrar business.
About 49,000 domains will be affected by this move, Hall said.
Uniregistry will pay M+M a commission over the lifetime of the accounts.
Focusing on the registry business was the plan from the moment Hall took over M+M, following a shareholder coup that kicked out founding CEO Antony Van Couvering in January.
Hall told DI:

It [previously] had a very ambitious plan. It wanted to be vertically integrated, but the considered view is there are people out there who are far better able to run parts of the exercise than ourselves, both on the RSP piece and likewise the registrar piece. The strategy from day one was to rapidly evolve into becoming a business-to-business marketing-led registry business and radically overhauling our cost structure at the same time.

The company is currently in a financial quiet period and will not yet disclose the amount of savings it expects to reap, Hall said. He added:

Reducing cost isn’t a strategy for growth, and as a business that will be where we will be judged. Growing our portfolio, growing our domains under management, growing our revenue within those domains. That’s what the business has to be focused on. We see within the industry that the highest value is in the [TLD] ownership part.

The job losses are expected to be largely on the technical side of the house.
The RSP outsourcing means that Nominet significantly boosts its stable of managed TLDs. While it’s in the top five back-ends in terms of DUM (due to the 11 million in .uk) its portfolio of clients there is relatively small, largely limited to a handful of dot-brands.
Nominet CEO Russell Haworth said in a statement:

This partnership takes us into the top tier of registry operators globally by volume of TLDs and compliments the brands we currently manage, such as .BBC, .Bentley and .Comcast. It also underlines our long-term strategy to provide a more diversified range of services to gTLDs and registrars.”

With the Uniregistry registrar deal, Hall said that competing with its own channel “was just not right for us”.
It might be worth noting that Uniregistry is actually a vertically integrated triple-play along the lines of M+M, also, managing its own back-end, registry and registrar businesses.
Hall said that the M+M registrar had sold mainly to domain investors with little interest in buying value-added services such as email and hosting, which is often where much of the profit lies.
Both deals are subject to ICANN approvals, and client approval in case of the back-end transition, will be phased in over many months, and are expected to be finalized by the end of the year.
UPDATE: M+M said later this morning that it is changing its official company domain to mmx.co from mindsandmachines.com.

Cruz keeps up pressure on ICANN brass

US presidential wannabe Sen. Ted Cruz has sent ICANN’s chair another nasty letter, demanding to know why he hasn’t yet responded to a laundry list of questions about former CEO Fadi Chehade’s relationship with the Chinese government.
The letter, also signed by fellow Republican senators Mike Lee and James Lankford, expresses “dismay” over the lack of response from Steve Crocker.
Cruz et al have been posing awkward questions to ICANN’s top brass since it emerged in December that Chehade had taken an unpaid position on an internet governance advisory committee run by China.
The senators say they’re worried that the US relinquishing its oversight of the IANA functions will give governments with poor freedom of expression records too much control over the internet.
A more likely explanation is that the IANA transition is an Obama initiative, and if Obama single-handedly saved a bunch of kids from a burning orphanage Cruz & Co would blame him for contributing to over-population.
That’s more or less the sentiment Chehade expressed at ICANN 55 last month, when he said:

And you know that this [Cruz] letter is not driven by anyone really worried about the transition. This is someone really worried about politics. So let’s not bring politics into the transition… Let’s resist bringing the politics of our lovely capital into this process… I think everyone knows this is political, even those in his own party… We will answer all these questions… And we will respond to the questions fully, to the Senators’ full satisfaction.

The new letter calls Chehade out for this statement, saying he “disparaged” what they call an “oversight request”.
An actual Congressional oversight hearing, focusing on the transition, a couple of weeks ago had absolutely no fireworks whatsoever.
It seems that the Republican-led committee actually responsible for internet matters, which does not include Cruz as a member, isn’t particularly upset about the IANA transition.
Nevertheless, the new Cruz letter re-poses a whole list of questions about Chehade’s involvement in China and Crocker and the ICANN board’s response to it.
The questions were originally asked March 3. ICANN had evidently said it would respond by March 18 but has not.
Cruz’s hand in the Republican primaries against front-runner Donald Trump has been strengthened in recent days, increasing the possibility that he could become US president next January.