.feedback gTLD in breach of contract after big brand “fraud” claims

ICANN has slapped .feedback operator Top Level Spectrum with a contract breach notice after a huge complaint about alleged fraud filed by a gang of big brands.
The company becomes the third new gTLD to be hit by a breach notice, and the first to receive one as a result of losing a Public Interest Commitments Dispute Resolution Process case.
While TLS dodged the “fraud” charges on a technicality, the breach is arguably the most serious found by ICANN in a new gTLD registry to date.
The three-person PICDRP panel found TLS was in violation of the following commitment from its registry agreement:

Registry Operator will operate the TLD in a transparent manner consistent with general principles of openness and non-discrimination by establishing, publishing and adhering to clear registration policies.

But TLS dodged the more serious charges of “fraudulent” behavior, which it denied, largely on the technicality that its PICs only require it to bar its registrants from such behavior.
There’s nothing in the PICs preventing the registry from behaving fraudulently, so the PICDRP panel declined to rule on those allegations, saying only that they “may be actionable in another forum”.
The complainants, which filed their 1,800-page complaint in October, were MarkMonitor and a bunch of its clients, including Adobe, American Apparel, Best Buy, Facebook, Levi and Verizon.
They’d claimed among other things that 70% of .feedback domains were trademarked names actually registered by the registry, and that TLS had stuffed each site with reviews either paid for or scraped from services such as Yelp!.
They claimed that Free.Feedback, a free domains service hosted by an affiliated entity, had been set up to auto-populate Whois records with the names of brand owners (or whoever owned the matching .com domain) even when the registrant was not the brand owner.
This resulted in brand owners receiving “phishing” emails related to domains they’d never registered, the complainants stated.
TLS denied all all the allegations of fraud, but the PICDRP panel wound up not ruling on many of them anyway, stating:

the Panel finds that Respondent’s Registry Operator Agreement contains no covenant by the Respondent to not engage in fraudulent and deceptive practices.

The only violations it found related to the transparency of .feedback’s launch policies.
The panel found that TLS had not given 90 days notice of policy changes and had not made its unusual pricing model (which included an extra fee for domains that did not resolve to live sites) transparent.
The registry had a number of unusual launch programs, which I outlined in December 2015 but which were apparently not adequately communicated to registrars and registrants.
The panel also found that Free.Feedback had failed to verify the email addresses of registrants and had failed to make it easy for trademark owners to cancel domains registered in their names without their consent.
Finally, it also found that TLS had registered a bunch of trademark-match domain names to itself during the .feedback sunrise period:

self-allocating or reserving domains that correspond to the trademark owners’ marks during the Sunrise period constitutes a failure by the Respondent to adhere to Clause 6 of its Registration and Launch policies, versions 1 and 2. According to the policies, Sunrise period is exclusively reserved for trademark owners

TLS, in its defense, denied that it had self-allocated these names and told the panel it had “accidentally” released them into the zone file temporarily.
As a result of the PIC breaches found by the panel, ICANN Compliance has issued a breach notice (pdf) against the company.
To cure the breach, and avoid having its Registry Agreement taken away, TLD has to, by April 15:

Provide ICANN with corrective and preventative action(s), including implementation dates and milestones, to ensure that Top Level Spectrum will operate the TLD feedback in a transparent manner consistent with general principles of openness and nondiscrimination by establishing, publishing and adhering to clear registration policies;

That seems to me like it’s probably vague enough to go either way, but I’d be surprised if TLS doesn’t manage to comply.

Government anger over two-letter domains

ICANN’s Governmental Advisory Committee has clashed with its board of directors over the lack of protections for two-letter domain names that match country codes.
The board has now formally been urged to reconsider its policy to allow registries to sell these names, after angry comments and threats from some GAC members.
Governments from Brazil, Iran, China and the European Union are among at least 10 angered that the names are either not adequately protected or only available for exorbitant prices,
The debate got very heated at ICANN 58 here in Copenhagen on Wednesday morning, during a public session between the GAC and the board, with Iran’s outspoken GAC rep, Kavous Arasteh, almost yelling at Chris Disspain, the board’s point man on the topic.
Arasteh even threatened to take his concerns, if not addressed, to the International Telecommunications Union when it convenes for a plenipotentiary next year.
“Your position is not acceptable. Rejected categorically,” he said.
“The multistakeholder process was not easily accepted by many countries. Still people have difficulty with that,” he said. “We have a plenipotentiary coming in 2018, and we will raise the issue if the matter is not resolved… It is not always commercial, government also has some powers, and we exercise our powers.”
Invoking the ITU is a way to turn a relatively trivial disagreement into an existential threat to ICANN, a typical negotiating tactic of governments that don’t get what they want from ICANN.
The relatively trivial disagreement in this case is ICANN’s decision to allow gTLD registries to release all previously reserved two-letter strings.
In November, ICANN approved a policy that released all two-letter strings on the proviso that registrants have to assert that they will not pass themselves off as affiliated with the countries concerned.
Registries also were given a duty to investigate — but not necessarily act upon — governmental complaints about confusion.
ICANN thinks that this policy is perfectly compliant with the GAC’s latest official advice, supplied following the Helsinki meeting last June, which asked ICANN to:

urge the relevant Registry or the Registrar to engage with the relevant GAC members when a risk is identified in order to come to an agreement on how to manage it or to have a third-party assessment of the situation if the name is already registered.

Disspain patiently pointed out during Wednesday’s session that governments have no legal rights to their ccTLD strings at the second level, and that most of the complaining governments don’t even protect two-letter strings in their own ccTLDs.
But some GAC reps disagreed.
China stated (via the official interpreter): “We believe the board doesn’t have the right or the mandate to decide whether GAC members have the right over two-character domain names.”
While no government spoke in favor of the ICANN policy on Wednesday, the complaining governments do appear to be in a minority of the GAC.
Despite this, they seem to have been effective in swaying fellow committee members to issue some stern new advice. The Copenhagen communique, published last night (pdf), reads:

a. The GAC advises the ICANN Board to:
I. Take into account the serious concerns expressed by some GAC Members as contained in previous GAC Advice
II. Engage with concerned governments by the next ICANN meeting to resolve those concerns.
III. Immediately explore measures to find a satisfactory solution of the matter to meet the concerns of these countries before being further aggravated.
IV. Provide clarification of the decision-making process and of the rationale for the November 2016 resolution, particularly in regard to consideration of the GAC advice, timing and level of support for this resolution.

ICANN is being compelled to retroactively revisit a policy that was issued in compliance with previous GAC advice, it seems.
The next ICANN meeting is being held in Johannesburg in June, so the clock is ticking.
Two-letter domains are valuable properties even in new gTLDs. With each expected to sell for thousands, two-letter names are likely to be a multimillion dollar windfall for even moderately sized portfolio registries.

In rare public session, ICANN approves sexual harassment policy

ICANN’s board of directors this afternoon approved an anti-harassment policy designed to protect community members from unwanted sexual attention.
It’s the policy inspired by the now infamous Cheesesandwichgate incident at the Marrakech meeting a year ago.
But general counsel John Jeffrey noted that there have been multiple similar complaints to the Ombudsman over the last year or so, possibly as a result of increased awareness that such complaints are possible.
While the text of the resolution has not yet been published, I believe it’s approving a lightly modified version of the policy draft outlined here.
That draft sought to ban activities such as “sexually suggestive touching” and “lewd jokes” at ICANN meetings. A laundry list of characteristics (such as race, gender, disability) were also given special protection.
What’s possibly more interesting than the new policy itself is the manner in which the policy was approved.
It was the first time in goodness knows how many years — definitely over 10, and I’m tempted to say over 15, but nobody seems to know for sure — that the ICANN board has deliberated on a resolution in public.
By “in public” I mean the 30-minute session was live-streamed via Adobe Connect from an undisclosed location somewhere at ICANN 58, here in Copenhagen. An in-person live audience was not possible for logistical reasons, I’m told.
Apart from the first few years of ICANN’s existence, its public board meetings have usually been rubber-stamping sessions at the end of the week-long meeting, based on discussions that had gone on behind closed doors days earlier.
So today’s session was a significant attempt to increase transparency that is likely to be welcomed by many.
Unfortunately, its existence could have been communicated better.
For the first 15 minutes, there were no more than 19 people in the Adobe room, and I believe I may have been the only one who was not ICANN staff or board.
After I tweeted about it, another 10 or so people showed up to listen.

The ICANN board is deliberating in public on a resolution and nobody is listening. https://t.co/N59BLW4n20 #icann58 #icann

— Kevin Murphy (@DomainIncite) March 11, 2017

Given that increased board transparency is something many sections of the community have been clamoring for for years, one might have expected a bigger turnout.
While the meeting had been prominently announced, it was not listed on the official ICANN 58 schedule, so had failed to make it onto the to-do lists of any of the iCal slaves pottering around the venue.
The session itself came across to me as a genuine discussion — not stage-managed or rehearsed as some had feared.
Directors raised issues such as the possible increased workload on the Ombudsman, the fact that the current Ombudsman (or Ombudsperson, as some directors referred to him) is male, and the availability of female staff members to receive “sensitive” complaints.
Today’s open session is part of a “pilot” and is due to be followed up on Sunday with another, which will discuss ICANN’s fiscal 2018 operating plan and budget.
Again, turning up to watch in person will not be possible, but the 90-minute session will be streamed live at 0745 UTC here.
The first in the pilot program, which even I missed, was in Brussels in September.

Schneider quits as chair of GAC

ICANN’s Governmental Advisory Committee is looking for a new chair.
Incumbent Thomas Schneider intends to leave the role before his current two-year term expires, he told GAC members assembled here at the ICANN 58 public meeting in Copenhagen this afternoon.
Schneider said that his boss at the Swiss government agency at which he works recently retired and that he has been appointed his successor.
From April, he’ll become vice director of the Federal Office of Communication, responsible for international affairs, he said.
The increased workload, including organizing the next Internet Governance Forum in Geneva, means he will no longer be able to devote his time to chairing the GAC, he said.
Schneider’s first two-year term as GAC chair started at the beginning of 2015. He was reelected to the position for a second term last November.
His replacement will be elected at the ICANN 60 meeting in Abu Dhabi this coming October, at which point Schneider will hand over the reins.

Papac named ICANN’s first complaints officer

ICANN has named its first-ever complaints officer.
It’s Krista Papac, a long-time domain industry participant who’s been working for ICANN, most recently as director of registry services and engagement, since 2013.
She’s previously worked for the registries Verisign, ARI (now part of Neustar) and data escrow agent Iron Mountain.
Her job will be to “provide a centralized mechanism to track complaints received about the ICANN organization” and is “an additional way for the ICANN organization to be accountable for and transparent about its performance”.
Her input will come largely from existing accountability mechanisms — the Ombudsman, Requests for Reconsideration, the Independent Review Process, and the contractual compliance department.
She’ll report to general counsel John Jeffrey.
The hire, and the reporting line, has already proved somewhat controversial.
Domain investor trade group the Internet Commerce Association today said that it was skeptical that a complaints officer reporting to the general counsel could be effective.
ICA added in a blog post that, while it has no beef with Papac, it had concerns that an insider had been hired into the role.

How can any individual who has worked for years within ICANN’s [Global Domains Division] be expected to cast prior experience and relationships aside to thoroughly and dispassionately investigate a complaint brought against GDD actions generally, or those of a specific member of the GDD staff?

Papac’s new role follows Jamie Hedlund’s internal move from head of government relations to VP of contractual compliance and consumer safeguards, in January.

How .com became a restricted TLD

Verisign has been given approval to start restricting who can and cannot register .com and .net domain names in various countries.
Customers of Chinese registrars are the first to be affected by the change to the registry’s back-end system, which was made last year.
ICANN last week gave Verisign a “free to deploy” notice for a new “Verification Code Extension” system that enables the company to stop domains registered via selected registrars from resolving unless the registrant’s identity has been verified and the name is not on China’s banned list.
It appears to be the system Verisign deployed in order to receive its Chinese government license to operate in China.
Under Verification Code Extension, Verisign uses ICANN records to identify which registrars are based in countries that have governmental restrictions. I believe China is currently the only affected country.
Those registrars are able to register domains normally, but Verisign will prevent the names from resolving (placing them in serverHold status and keeping them out of the zone file) unless the registration is accompanied by a verification code.
These codes are distributed to the affected registrars by at least two verification service providers. Verisign, in response to DI questions, declined to name them.
Under its “free to deploy” agreement with ICANN (pdf), Verisign is unable to offer verification services itself. It must use third parties.
The company added the functionality to its .com and .net registry as an option in February 2016, according to ICANN records. It seems to have been implemented last July.
A Verisign spokesperson said the company “has implemented” the system.
The Verification Code Extension — technically, it’s an extension to the EPP protocol pretty much all registries use — was outlined in a Registry Services Evaluation Process request (pdf) last May, and approved by ICANN not long after.
Verisign was approved to operate in China last August in the first wave of gTLD registries to obtain government licenses.
Under Chinese regulations, domain names registered in TLDs not approved by the government may not resolve. Registrars are obliged to verify the identities of their registrants and names containing certain sensitive terms are not permitted.
Other gTLDs, including .vip, .club, .xyz .site and .shop have been granted approval over the last few months.
Some have chosen to work with registration gateway providers in China to comply with the local rules.
Apart from XYZ.com and Verisign, no registry has sought ICANN approval for their particular implementation of Chinese law.
Because Chinese influence over ICANN is a politically sensitive issue right now, it should be pointed out that the Verification Code Extension is not something that ICANN came up with in response to Chinese demands.
Rather, it’s something Verisign came up with in response to Chinese market realities. ICANN has merely rubber-stamped a service requested by Verisign.
This, in other words, is a case of China flexing market muscle, not political muscle. Verisign, like many other gTLD registries, is over-exposed to the Chinese market.
It should also be pointed out for avoidance of doubt that the Chinese restrictions do not apply to customers of non-Chinese registrars.
However, it appears that Verisign now has a mechanism baked into its .com and .net registries that would make it much easier to implement .com restrictions that other governments might choose to put into their own legislation in future.

Donuts took down 11 domains for Hollywood last year

Donuts caused 11 domain names in its new gTLD portfolio to be taken down in the first 12 months of its deal with the US movie industry.
The company disclosed yesterday that the Motion Picture Association of America requested the suspension of 12 domains under their bilateral “Trusted Notifier” agreement, which came into effect last February.
The news follows the decisions by Public Interest Registry and the Domain Name Association not to pursue a “Copyright ADRP” process that would have made such Trusted Notifier systems unnecessary.
Of the 12 alleged piracy domains, seven were suspended by the sponsoring registrar, one was addressed by the hosting provider, and Donuts terminated three at the registry level.
For the remaining domain, “questions arose about the nexus between the site’s operators and the content that warranted further investigation”, Donuts said.
“In the end, after consultation with the registrar and the registrant, we elected against further action,” it said.
Trusted Notifier is supposed to address only clear-cut cases of copyright infringement, where domains are being using solely to commit mass piracy. Donuts said:

Of the eleven on which action was taken, each represented a clear violation of law—the key tenet of a referral. In some cases, sites simply were mirrors of other sites that were subject to US legal action. All were clearly and solely dedicated to pervasive illegal streaming of television and movie content. In a reflection of the further damage these types of sites can impart on Internet users, malware was detected on one of the sites.

Donuts also dismissed claims that Trusted Notifier mechanisms represent a slippery slope that will ultimately grant censorship powers to Big Content.
The company said “a mere handful of names have been impacted, and only those that clearly were devoted to illegal activity. And to Donuts’ knowledge, in no case did the registrant contest the suspension or seek reinstatement of the domain.”
It is of course impossible to verify these statements, because Donuts does not publish the names of the domains affected by the program.
Trusted Notifier, which is also in place at competing portfolio registry Radix, was this week criticized in an academic paper from professor Annemarie Bridy of the University of Idaho College of Law and Stanford University.
The paper, “Notice and Takedown in the Domain Name System: ICANN’s Ambivalent Drift into Online Content Regulation”, she argues that while Trusted Notifier may not by an ICANN policy, the organization has nevertheless “abetted the development and implementation of a potentially large-scale program of privately ordered online content regulation”.

Sanchez beats Greenberg to ICANN board seat

Mexican intellectual property lawyer León Felipe Sánchez Ambía has been selected to become a member of the ICANN board of directors by the At-Large, comfortably beating his opponent in a poll this weekend.
Sanchez took 13 votes (65%) to 10-year At-Large veteran Alan Greenberg’s 7, in a vote of At-Large Advisory Committee members and Regional At Large Organization chairs.
He’ll take the seat due to be vacated in November by Rinalia Abdul Rahim, who will leave the board after one three-year term.
He’s currently head of the IP practice and a partner at Fulton & Fulton in Mexico City. According to his bio:

He is co-lead for the Mexican chapter of Creative Commons and advisor to different Government bodies that include the Digital Strategy Coordination Office of the Mexican Presidency, the Special Commission on Digital Agenda and IT of the Mexican House of Representatives and the Science and Technology Commission of the Mexican Senate.
He drafted the Internet Users Rights Protection Act for Mexico and has been very active on issues like Anti-Counterfeit Trade Agreement (ACTA), Stop Online Privacy Act (SOPA), Trans-Pacific Partnership Agreement (TPPA) and other local initiatives of the same kind, always advocating to defend users’ and creators’ rights in order to achieve a balance between regulation and freedom.

Sanchez is certainly the less experienced of the two short-listed men when it comes to length of involvement in the ICANN community, but he’s a member of the ALAC and is deeply involved as a volunteer in ICANN accountability work following the IANA transition.
The At-Large was recently criticized in a report (pdf) for the perception that it is “controlled by a handful of ICANN veterans who rotate between the different leadership positions”.
Sanchez’s appointment to the board may have an effect on that perception.
The selection of another (white, male) North American to the board, replacing an Asian woman, will of course create more pressure to increase geographic and gender diversity on the other groups within ICANN that select board members.
A written Q&A between the two candidates and At-Large members can be found here.

PIR slams brakes on “UDRP for copyright”

Public Interest Registry has “paused” its plan to allow copyright owners to seize .org domains used for piracy.
In a statement last night, PIR said the plans were being shelved in response to publicly expressed concerns.
The Systemic Copyright Infringement Alternative Dispute Resolution Policy was an in-house development, but had made its way into the Domain Name Association’s recently revealed “healthy practices” document, where it known as Copyright ADRP.
The process was to be modeled on UDRP and similarly priced, with Forum providing arbitration services. The key difference was that instead of trademark infringement in the domain, it dealt with copyright infringement on the associated web site.
PIR general counsel Liz Finberg had told us the standard for losing a domain would be “clear and convincing evidence” of “pervasive and systemic copyright infringement”.
Losers would either have their domain suspended or, like UDRP, seized by the complainant.
The system seemed to be tailor-made to give PIR a way to get thepiratebay.org taken down without violating the owner’s due process rights.
But the the announcement of Copyright ADRP drew an angry response from groups representing domain investors and free speech rights.
The Electronic Frontier Foundation said the system would be captured by the music and movie industries, and compared it to the failed Stop Online Piracy Act (SOPA) in the US.
The Internet Commerce Association warned that privatized take-down policies at registries opened the door for ICANN to be circumvented when IP interests don’t get what they want from the multi-stakeholder process.
I understand that members of ICANN’s Non-Contracted Parties House was on the verge of formally requesting PIR pause the program pending a wider consultation.
Some or all of these concerns appear to have hit home, with PIR issuing the following brief statement last night:

Over the past year, Public Interest Registry has been developing a highly focused policy that addresses systemic, large scale copyright infringement – the ”Systemic Copyright Infringement Alternative Dispute Resolution Policy” or SCDRP.
Given certain concerns that have been recently raised in the public domain, Public Interest Registry is pausing its SCDRP development process to reflect on those concerns and consider forward steps. We will hold any further development of the SCDRP until further notice.

SCDRP was described in general terms in the DNA’s latest Healthy Domains Initiative proposals, but PIR is the only registry to so far publicly express an interest in implementing such a measure.
Copyright ADRP may not be dead yet, but its future does not look bright.

UPDATE: This post was updated 2/26 to clarify that it was only “some members” of the NCPH that were intending to protest the Copyright ADRP.

Hacked ICANN data for sale on black market

If you were a user of ICANN’s Centralized Zone Data Service back in 2014 you may wish to think about changing some passwords today.
ICANN has confirmed that a bunch of user names and hashed passwords that were stolen in November 2014 have turned up for sale on the black market.
The batch reportedly contains credentials for over 8,000 users.
ICANN said yesterday:

ICANN recently became aware that some information obtained in the spear phishing incident we announced in 2014 is being offered for sale on underground forums. Our initial assessment is that it is old data and that no new breach of our systems has occurred. The data accessed in the 2014 incident breach included usernames and hashed passwords for our Centralized Zone Data System (CZDS). Once the theft was discovered, we reset all user passwords, and urged users to do the same for any other accounts where they used the same passwords.

While CZDS users have all presumably already changed their CZDS passwords, if they are still using that same password for a non-CZDS web site they may want to think about changing it.
ICANN first announced the hack back in December 2014.
It said at the time that the Government Advisory Committee’s wiki, and a selection of other less interesting pages, had also been compromised.
The attackers got in after a number of ICANN staffers fell for a spear-phishing attack — a narrowly targeted form of phishing that was specifically aimed at them.
If you email with ICANN staff with any regularity you will have noticed that for the last several months your email subject lines get prefixed [EXTERNAL] before the staffer receives them.
That’s to help avoid this kind of attack being successful again.