Was Facebok.com really stolen?

The domain name’s strange history raises questions.
The typo domain facebok.com is currently at the center of an unusual legal battle that has put a respected domain name registrar’s ICANN accreditation at risk.
EuroDNS, as I reported last week, has been handed an ICANN breach notice for failing to transfer the domain to Facebook, which won it in a slam-dunk UDRP complaint last September.
If it does not hand over the domain by May 11, it stands to lose its ability to sell domain names.
But the registrar says it is a defendant in a lawsuit, filed in its native Luxembourg, which has put a jurisdictional question mark over its ability to legally transfer the domain.
According to EuroDNS, the suit was filed by a company calling itself “Facebok.com Inc”, on September 24 last year, just one week after the UDRP case was decided.
This suspiciously named company alleges that the domain is its rightful property, and that it was stolen by the respondent in the UDRP case, one Franz Bauer of Munich, Germany.
The suit names Bauer, Facebook and EuroDNS as defendants.
A review of historical Whois records shows that Bauer has been associated with the domain facebok.com since August 2009, after it emerged from a few years behind a Whois privacy shield.
The address in the Whois, then and now, seems to be a hotel in Munich.
However, on September 21, 2010, a few days after WIPO informed Bauer he had lost the UDRP, the contact information in the Whois changed to a Hushmail email address and:

Company: FACEBOK.COM, INC.
Name: Facebok Domains Facebok Admininstrator
Address: IPASA Building, 3rd Floor, 41 Street Off Balboa Avenue, Bella Vista District
City: Panama City
Country: PANAMA
Postal Code: 83256

That address is shared by Panama Offshore Legal Services, a company that offers corporate formation services to individuals outside of Panama, with the promise of “global asset protection, privacy, investment diversification, tax minimization, affordability and convenience.”
Facebok.com Inc, which is suing EuroDNS, Facebook and Bauer, therefore appears to be an offshore shell company. The question is: who’s behind it?
At the time the domain’s Whois changed from Bauer to Facebok.com Inc, it was in ClientTransferProhibited status, meaning it could not be transferred to another registrar, but that the registrant was free to change his contact information at will.
By early October, the Whois record had reverted back to Bauer.
The domain facebok.com currently directs fat-fingered web surfers to a variety of affiliate scams, depending on where they live, that rely upon users completing spurious surveys and not reading the fine print when they sign up for pricey mobile phone messaging services.
With 500 million Facebook users, many of whom will be youngsters, silver surfers, or may not use ASCII as their primary script, the site is likely to be getting a fair bit of traffic.
Compete.com estimates it received roughly 4,000 to 8,000 visits per month last year. Alexa gives the site a rank of roughly 154,000. Both sites show a huge traffic spike in March.

Aussies to back city TLD bids

Australian authorities are planning to back bids for .melbourne and .sydney top-level domains, according to a report in The Australian.
The article quotes an official from the New South Wales Premier’s Office saying there’s a plan to release a tender for the right to operate .sydney, and somebody from the City of Melbourne saying they’re “actively considering” .melbourne.
The report does not spell out the expected uses of the TLDs. I expect some of the strategy will depend on what business plans the successful registry operator comes up with.
The current draft of ICANN’s Applicant Guidebook protects city names, demanding applicants show proof of support or non-objection from the relevant public authorities.
The only exception is when the applied-for string matches a non-capital city name, but is not intended to represent that city.
That’s designed to allow brand or generic TLDs that match smaller place names — think .phoenix or .buffalo.
With the latest revision of the Guidebook, it is noted that it is up for national governments to decide what the appropriate entity to support a city TLD bid is, which could complicate matters,
There’s already a Facebook group devoted to a .melbourne application.

Two-horse race for ICANN board seat

A seat on ICANN’s board of directors opens up in June, and two people have been nominated to fill it.
Avri Doria and Bill Graham will face a ballot to see who will replace Rita Rodin Johnson, whose term expires at the end of ICANN’s Singapore meeting, June 24.
It’s not an open ballot, of course. The seat is designated to be occupied by a member of ICANN’s Generic Names Supporting Organization’s Non-Contracted Parties House.
That’s basically the half of the GNSO policy-making body made up of representatives of organizations that are not domain name registrars or registries — they have no contracts with ICANN.
Doria works at a Swedish university. She sits in the Non-Commercial Stakeholders Group, and is a former chair of the GNSO Council.
Graham was once Canada’s representative on and vice-chair of ICANN’s Governmental Advisory Committee, and is now head of strategic global engagement at the Internet Society.
Only 13 members of the NCPH get to vote. Whichever candidate receives eight votes or more, wins.

Registries could become registrars by summer

The big incumbent top-level domain registry operators could apply to also become registrars as early as June this year, according to a just-passed ICANN resolution.
Last November, ICANN decided to dump its longstanding policy of generally not allowing TLD registries to also own and operate registrars.
While the rule was designed primarily for TLDs won under the new gTLD program, it will also retroactively apply to operators of existing gTLDs.
Neustar (.biz) has already publicly stated its intention to vertically integrate, and is keen for ICANN to lift its current 15% registrar ownership restriction before the new gTLD program kicks off.
According to a resolution passed by ICANN’s board of directors on Thursday, Neustar is not the only registry operator to make such a request.
The board last week…

RESOLVED (2011.04.21.13), the Board directs the CEO to develop a process for existing gTLD registry operators to transition to the new form of Registry Agreement or to request amendments to their registry agreements to remove the cross-ownership restrictions. This process would be available to existing operators upon Board approval of the new gTLD Program.

ICANN currently plans to approve the gTLD program June 20 at its meeting in Singapore.
That gives CEO Rod Beckstrom and his team just two months to come up with a process for allowing the likes of VeriSign, Neustar and Afilias to either amend their contracts or move to the standard contract outlined in the new TLD program’s Applicant Guidebook.
I see a potential source of tension here.
The registry agreement template in the Guidebook has been described by some as an “adhesion contract” due to its heavy balance in ICANN’s favor.
Existing registries will very likely prefer to simply delete the cross-ownership restrictions in their current contracts and incorporate the new proposed Code of Conduct rules.
On the other hand, some have suggested that registries should be obliged to adopt the new Guidebook agreement in full, rather than amend their existing deals, in the interests of equitable treatment.
Registrars still signed up to ICANN’s 2001 Registrar Accreditation Agreement only get the option to upgrade wholesale to the 2009 agreement, it has been noted.

Three more countries get IDNs

Citizens of Algeria, Morocco and Serbia will soon be able to use domain names in their local Arabic and Cyrillic-based languages, after ICANN approved internationalized domain names for the three nations.
The three new ccTLDs are الجزائر (meaning “Al Jazair” for Algeria), المغرب (“al-Maghrib”, for Morocco) and .срб (“srb” for Serbia).
ICANN’s board approved the requests at a meeting on Thursday. They could enter the domain name system’s root in as little as 10 days, though delegations usually take longer.
There are now 37 IDN ccTLDs in IANA’s database of top-level domains, covering 27 countries.
On Thursday, ICANN also approved the redelegation of North Korea’s ASCII ccTLD, .kp, to an entity called Star Joint Venture Company.

The price of ICANN transparency: $2.6m

ICANN has estimated that it will need an extra $2.6 million on its fiscal 2012 budget to cover the cost of becoming more transparent and accountable.
In March, the organization decided to implement the 27 recommendations of its Accountability and Transparency Review Team, and last week the board asked its finance committee to look into budgeting the project.
The cost is estimated at $2.6 million for fiscal 2012, which begins in July, according to the resolution passed by the board on Thursday.
That’s much more than the initial estimate of $965,000 mentioned in staff briefing documents (pdf) provided to the board before its meeting in March, which excluded the ATRT recommendation that ICANN’s directors receive compensation.
The extra cash is required to hire additional staff and pay for consulting services. Presumably some of it will now also be needed to pay the board.

Niue: the myth of the “Wifi Nation”

The tiny Pacific island of Niue is commonly referred to as the world’s first and only “Wifi Nation”.
There was a lot of feel-good press coverage back in 2003, when the Massachusetts-based manager of the .nu country-code top-level domain started deploying wireless internet on the island.
NU Domain said at the time that it was “building the world’s first nation-wide wifi Internet access service, all at no cost to the public or the local government” (pdf)
This led to major media outlets, such as the BBC, reporting the line: “The free wi-fi link will be accessible to all of Niue’s 2,000 residents as well as tourists and business travellers.”
This story has remained in the media consciousness to this date, encouraged by the registry.
Just this week, NU Domain’s charitable front operation, the IUSN Foundation, was fluffily claiming that it has provided Niue with “the world’s only nation-wide free Internet”.
Even ICANN’s Kiwi chairman, Peter Dengate Thrush, spread the meme during a recent interview (audio), saying Niue had “installed free wifi across the entire island”.
There is just one problem with the “Wifi Nation” story: it’s bollocks.
This is what Niue’s Premier, Toke Talagi, had to say to Australian radio (audio) this week:

The internet services are unreliable, they’re not available throughout the island, and if you do want internet services connected up to your home you have to pay for it. Some people as I understand it have been paying up to $3,000 [$2,400] just for the installation of the wifi.
…
We’re never quite certain about what that “free” internet services is about, because we’ve had to pay.

According to Talagi, the wifi network provided by IUSN does not cover every village on the island, and users have to pay for it. The free wifi nation is neither free nor nationwide.
Even IUSN, while continuing to make its claims about nationwide wifi, admitted a year ago, seven years after the “wifi nation” claims were first made, that “villagers have been waiting to get online for some time”.
According to Talagi, the lack of reliable internet access is such a big problem that the Niuean government has had to take matters into its own hands and build its own ISP.
It is close to completing its own wired and wireless internet infrastructure, at the cost of $4.8 million, according to reports.
Niue discussed its needs with IUSN in 2009 and 2010, Talagi said, but “they felt they didn’t need to discuss these particular matters, that the services they were providing for us were adequate”.
It appears that IUSN doesn’t even pay to maintain its own equipment. This quote comes from a locally produced newsletter dated April 2009:

While IUSN is committed to provide free internet for its residents it is up to the users of this service to look after and maintain the internet enabling facilities.

That came from a report about residents of one of the island’s villages holding a fund-raiser in order to collect the $2,400 required to fix a wifi mast that had been damaged in a lightning storm (a common problem).
The per capita GDP of Niue, incidentally, is $5,800. Its citizens are not starving, but by the measure of its estimated GDP, about $10 million, it’s one of the poorest nations on the planet, reliant heavily on aid from nearby New Zealand.
According to Talagi and other sources, good internet access is not only required for economic reasons such as boosting the tourism industry.
Fast, reliable connectivity would also enable important human services, such as remote video diagnoses to be performed by overseas medical specialists, which the island lacks.
Niue’s ongoing economic problems come about largely because, other than fishing, it has very few natural resources to exploit.
A notable industry in the past has been the export of postage stamps to overseas collectors.
That business made headlines recently when a stamp was issued, celebrating the marriage of Prince William to Kate Middleton, which featured a perforation separating bride and groom.
There’s also talk of setting up a casino on the island, to boost revenues.
One asset it does have, at least on paper, is its top-level domain, .nu, which has proven popular in Sweden, where the word “nu” means “now”.
However, other than the lackluster internet connectivity provided by IUSN, Niue apparently does not see any significant revenue from the sale of .nu domain names.
According to IANA records, the .nu domain is officially delegated to the IUSN Foundation, previously known as the Internet Users Society – Niue.
The technical back-end provider is WorldNames Inc, which also operates as a registry/registrar under the brand NU Domain.
IUSN’s contact address is a PO Box in Niue, probably due to the fact that all ccTLD registry operators have to be based in the country they purport to represent.
The IUSN’s domain name, iusn.org, is registered to the same address as WorldNames and NU Domain, in the leafy Boston suburb of Medford, MA.
Most of the company’s business is done in Sweden, where most of its staff are based.
WorldNames has been in control of .nu since 1997, when its founder, Bill Semich, in partnership with a American ex-pat living on the island, managed to acquire the IANA delegation, pre-ICANN.
By several accounts, Niue has been trying to reclaim .nu from Semich for almost as many years.
In 2003, the government hired an American lawyer, Gerald McClurg, to be its representative on ICANN’s Governmental Advisory Committee and attempt to secure a redelegation.
That same year, McClurg made a submission to the International Telecommunications Union (.doc), in which he alleged that the nation was tricked out of its domain:

In 1997 IANA, without the approval of the Niuean Government, delegated the ccTLD for Niue to a businessman, William Semich, who lives in the United States. The advisor to the Government at that time was an ex-peace corp volunteer named Richard Saint Clair. Mr Saint Clair told the Government that the name meant nothing, that it was of no value or significance, and there was nothing that could be done. Shortly thereafter, Mr. Saint Clair then left his post as advisor and joined with Mr Semich in his organization – IUSN. The Government of Niue has been working every since to regain its ccTLD.

The Niuean government has actually passed a law, the Communications Amendment Act 2000, which states: “.nu is a National resource for which the prime authority is the Government of Niue”.
It also established the Niue Information Technology Committee, which “shall be the only designated Registry Manager of the Niue ccTLD .nu.”
Yet, eleven years on, IUSN is still the registry manager for .nu.
Talagi said in his radio interview this week that Niue was preparing to submit a redelegation request to ICANN/IANA in February last year, which is in line with what I was hearing at the time.
I have in my possession documentation from a European domain name registrar, dated March 2010, offering to take over the management of .nu on a not-for-profit basis.
It’s not clear to me whether Niue’s redelegation request is still active. Under current IANA practices, ICANN does not discuss pending ccTLD redelegation requests.
But I suspect IUSN has little interest in handing .nu back to Niue.
While registration data is not easy to come by, the number that has been reported frequently over the years, and as recently as 2008, is 200,000.
At 30 euros ($44) per year for the standard service from NU Domain, that’s close to a $9 million business just from domain registration fees.
That may not be much on the grand scheme of things, but it would certainly be material to a nation so reliant on hand-outs as Niue.
But IUSN is very protective of its asset.
Take a look at the Accountability Framework – one of the methods by which ICANN establishes formal relationships with ccTLD managers – that IUSN and ICANN signed in 2008 (pdf).
ICANN has signed 26 Accountability Frameworks over the last five years. They’re all very similarly worded, but the one it signed with IUSN has a notable addition not found in any of the others.
All ccTLDs’ Accountability Frameworks call for the TLD to be managed “in a manner that is consistent with the relevant laws of [insert country name]”.
But the .nu agreement is the only one to also make a specific reference to RFC 1591 and ICP-1, two rules dating from the 1990s that govern how ccTLDs are redelegated from one organization to another.
While ICP-1 gives governments a significant voice in redelegation requests, both documents state that IANA should only redelegate a TLD when both the winning and losing parties agree to the transfer.
The only notable exception to the rule is when the incumbent registry manager has been found to have “substantially misbehaved”, which I understand to be quite a high bar.
With that in mind, it’s far from obvious whether Niue stands any chance of getting its ccTLD redelegated to an approved registry any time soon.
According to a recent report (pdf) from ICANN’s ccNSO, IANA has redelegated ccTLDs in cases where the losing registry fought the decision, but its procedures for doing so are utterly opaque.

ICANN advised against director salaries

ICANN’s legal staff advised its board of directors against rushing to grant themselves a pay packet, according to documents released today.
At its San Francisco meeting last month, ICANN’s board voted to adopt a package of 27 measures designed to improve the organization’s accountability and transparency.
One of the recommendations, provided by the Accountability and Transparency Review Team in December, asked the board to quickly implement a “compensation scheme” for ICANN’s voting directors.
Other than salaried president Rod Beckstrom, currently only the chairman, Peter Dengate Thrush, is paid for his work on the board.
But briefing documents provided to the board prior to the San Francisco vote, published today (pdf and pdf), reveal that ICANN staff recommended adopting only 26 of the 27 ATRT recommendation.
The original ATRT recommendation #5 reads:

The Board should expeditiously implement the compensation scheme for voting Directors as recommended by the Boston Consulting Group adjusted as necessary to address international payment issues, if any.

And the ICANN staff recommendation to the board reads:

Staff recommends that the Board not implement ATRT Recommendation #5 – a compensation scheme for voting Board Directors – at this time, but give adoption and implementation further consideration as detailed in the staff’s proposed implementation plan

Regardless, the board voted to adopt all 27 ATRT recommendations in San Francisco, including the board compensation plan idea. This was broadly welcomed by the community.
The precise reasoning behind the staff’s recommendation is not clear – the rationale has been redacted from the briefing documents – but director Bruce Tonkin gave a hint during remarks at the open board meeting in San Francisco, saying:

There are legal requirements for how a board could pass a motion to decide to compensate board members, which is one of the recommendations, and then there are obviously budget implications of doing that.
So just the legal steps that need to be followed will take a bit of time. Not years, but will take some months.

The ATRT report was fairly comprehensive, covering everything from how ICANN selects its board to how it interacts with its Governmental Advisory Committee, to what information it publishes on its web site.
The report also gave ICANN deadlines to hit on many recommendations, many of them June 2011.
But it appears from the just-published briefing documents that ICANN intends to miss those deadlines in several cases, due to the complexity of the work involved, by a few months to as much as a year or more.
In other, simpler, cases, ICANN has already met the recommendations. Many of ICANN’s policy-making processes are still due to get a shake-up, but some changes will take longer than expected.

Registrar threatened over “stolen” Facebook domain

ICANN has threatened to terminate the domain name registrar EuroDNS for failing to transfer a typo domain lost in a UDRP case to Facebook.
But EuroDNS says it is subject to a court case in its home country, Luxembourg, which has prevented it handing over the name.
The original registrant of facebok.com lost a slam-dunk UDRP case back in September 2010. He didn’t even bother defending the case.
But over half a year later, he’s still in control of the domain, and he’s using it to recruit folk into a shady-looking (but probably legal) subscription text messaging service.
EuroDNS is the registrar of record for the domain, and like all registrars is responsible for transferring domains lost under the UDRP to the winning party, in this case Facebook.
ICANN’s compliance department – my guess is under pressure from Facebook – has therefore threatened EuroDNS with termination unless it hands over the domain in the next three weeks.
This is noteworthy because EuroDNS isn’t the kind of tiny, fringe outfit ICANN usually files compliance notices against. It’s a generally respectable business. It even shows up to ICANN meetings.
EuroDNS deputy general counsel Luc Seufer tells me that the company was fully prepared to transfer the domain – it had even sent the authorization codes to Facebook – but it found itself on the receiving end of a lawsuit claiming that the domain had been “stolen”.
Somebody in Luxembourg, it seems, has sued to reclaim an obvious typo domain that’s probably going to be transferred to Facebook anyway.
“We are therefore in an incredible position where if we transfer the name before the judge’s ruling we will be accountable in our own country and if we don’t transfer the name we are in breach of the [Registrar Accreditation Agreement],” said Seufer.
The Luxembourg case has not yet made it to court, hence EuroDNS’s delay, he said. ICANN is aware of the action, and has seen the court papers, he said.
According to ICANN’s breach notice (pdf), the only way for EuroDNS to avoid its obligation under the UDRP is to show proof that the original registrant has sued Facebook to keep the domain.
But the case in question was filed by a third party claiming to be the rightful owner of the domain, not the original registrant. EuroDNS seems to be trapped between a rock and a hard place.
Seufer said the company is prepared to hand over the domain, adding:

Should we simply ignore a judiciary court case against us in our own country – that could prevent us from operating the transfer since it is was asked of the judge – because of our RAA’s obligations?

The domain in question, facebok.com, currently redirects to a series of sites asking visitors to fill in a survey to win a Mac.
Those who are duped by it are actually signing up to a text service that costs, in the UK, £4.50 ($7.40) per week.

Registry avoids .jobs shut-down

Employ Media has come to a deal with ICANN to avoid having its .jobs registry contract revoked, at least for the next few weeks.
Following discussions with ICANN’s lawyers, the company plans to amend its Charter, and has agreed to stop allocating non-company-name .jobs domain names until May 6.
ICANN threatened to terminate the .jobs registry deal in February, after Employ Media started allocating thousands of premium vocational and geographic domains to a partner, the DirectEmployers Association, to act as entry points for Universe.jobs.
In a breach notice (pdf), ICANN said that this use of .jobs domains “is inconsistent with the purpose stated in the .JOBS Charter and represented to the ICANN community”.
The .JOBS Charter ostensibly restricts registrations to human resources professionals, but in practice there’s a great big loophole that allows anybody to cheaply qualify for a domain.
In February, ICANN general counsel John Jeffrey told Employ Media:

By not establishing any meaningful restrictions on who may register second level registrations in the .JOBS TLD, Employ Media put in operation a TLD where anyone can register names, thus defeating the purpose for which the sponsored TLD came into existence.

In its response, the registry noted that it had followed ICANN’s proper procedures for introducing new “registry services”, such as the Phase Allocation Plan that allowed it to seed Universe.jobs.
It accused ICANN of bending to the wishes of the .JOBS Charter Compliance Coalition, a group of independent jobs sites operators that had objected to Universe.jobs.
Employ Media’s chief executive Brian Johnson wrote:

This is a sad day for both the Internet community and the international human resource management community. ICANN should be promoting competition and working cooperatively with its contractual parties, but instead is choosing to ignore the plain meaning of its contract with Employ Media in order to appease some apparently well‐financed and well‐connected provocateurs.

Since that letter (pdf) was sent, ICANN and the registry have been engaged in private discussions aimed at resolving the conflict, as allowed by the registry agreement.
In the latest set of correspondence, exchanged over the last week, it has emerged that ICANN has agreed to give Employ Media time to remedy the situation by amending its Charter.
The letters do not reveal whether the amendments will allow Employ Media to continue to offer Universe.jobs or not. I suspect they will.
The amendments may require the company to consult with its nominal sponsor, the Society for Human Resource Management.
ICANN wants a proposed Charter amendment on its desk by May 2. It has agreed to take no further action related to the breach of contract allegations until May 6.