ICANN trying to water down its transparency obligations

ICANN? Trying to be less transparent? Surely not!

The Org has been accused by some of its community members of trying to shirk its transparency obligations with proposed changes to its Documentary Information Disclosure Policy.

The changes would give ICANN “superpowers” to deny DIDP requests, and to deny them without explanation, according to inputs to a recently closed public comment period.

The DIDP is ICANN’s equivalent of a Freedom of Information Act, allowing community members to request documentation that would not be published during the normal course of business.

It’s often used, though certainly not exclusively so, by lawyers as a form of discovery before they escalate their beefs to ICANN accountability mechanisms or litigation.

It already contains broad carve-outs that enable ICANN to refuse disclosure if it considers the requested info too sensitive for the public’s eyes. These are the Defined Conditions for Nondisclosure, and they are used frequently enough that most DIDPs don’t reveal any new information.

The proposed new DIDP broadens these nondisclosure conditions further, to the extent that some commentators believe it would allow ICANN to deny basically any request for information. New text allows ICANN to refuse a request for:

Materials, including but not limited to, trade secrets, commercial and financial information, confidential business information, and internal policies and procedures, the disclosure of which could materially harm ICANN’s financial or business interests or the commercial interests of its stakeholders who have those interests.

The Registries Stakeholder Group noted that this is “broader” than the current DIDP, while the At-Large Advisory Committee said (pdf) it “essentially grants ICANN the right to refuse any and all requests”.

ALAC wrote that “rejecting a request because it includes commercial or financial information or documents an internal policy makes a mockery of this DIDP policy”.

Jeff Reberry of drop-catch registrar TurnCommerce concurred (pdf), accusing ICANN of trying to grant itself “superpowers” and stating:

Extremely generic terms such as “confidential business information” and “commercial information” were added. Frankly, this could mean anything and everything! Thus, ICANN has now inserted a catch-all provision allowing it to disclose nothing.

Other comments noted that the proposed changes dilute ICANN’s responsibility to explain itself when it refuses to release information.

Text requiring ICANN to “provide a written statement to the requestor identifying the reasons for the denial” has been deleted from the proposed new policy.

A collection of six lawyers, all prolific DIDP users, put their names to a comment (pdf) stating that “the change results in less transparency than the current DIDP”.

The lawyers point out that requests that are denied without explanation would likely lead to confusion and consequently increased use of ICANN’s accountability mechanisms, such as Requests for Reconsideration. They wrote:

Simply stated, the Revised Policy allows ICANN to obscure its decision-making and will ultimately cause disputes between ICANN and the Internet community — the complete opposite of the “accountable and transparent” and “open and transparent processes” required by ICANN’s Bylaws.

One change that didn’t get much attention in the public comments, but which certainly leapt out to me, concerns the turnaround time for DIDP responses.

Currently, the DIDP states that ICANN “will provide a response to the DIDP request within 30 calendar days from receipt of the request.”

In practice, ICANN treats this obligation like one might treat a tax return or a college essay — it almost provides its response exactly 30 days after it receives a request, at the last possible moment.

The revised DIDP gives ICANN the new ability to extend this deadline for another 30 days, and I don’t think it’s unreasonable to assume, given past behavior, that ICANN will try to exploit this power whenever it’s advantageous to do so:

In the event that ICANN org cannot complete its response within that 30-calendar-day time frame, ICANN org will inform the requestor by email as to when a response will be provided, which shall not be longer than an additional 30 calendar days, and explain the reasons necessary for the extension of time to respond.

The predictably Orwellian irony of all of the above proposed changes is that they come in response to a community review called the Cross-Community Working Group on Enhancing ICANN Accountability Work Stream 2 (WS2), which produced recommendations designed to enhance accountability and transparency.

Whether they are adopted as-is or further revised to address community concerns is up to the ICANN board of directors, which is of course advised by the staff lawyers who drafted the proposed revisions.

ICANN staff’s summary of the seven comments submitted during the public comment period is due next week.

A decade after the last new gTLD round, Marby starts the clock on the next one

The next new gTLD application is moving a step closer this month, with ICANN chief Göran Marby promising the launch of its Operational Design Phase.

But it’s still unclear whether the ODP has officially started, and many community members are angry and frustrated that the process is taking too long, some 10 years after the last application window opened.

Marby published a blog post December 20 stating “the org has advised the Board that it is beginning the ODP”, but he linked to a December 17 letter (pdf) that told the board “the org is now transitioning to launch the ODP formally as of January”.

We’re well into January now, so does that mean the ODP has officially started? It’s not clear from what ICANN has published.

It seems either ICANN doesn’t yet want to pin down an exact date for the ODP being initiated, which starts the clock on its deadline for completion, or it’s just really bad at communications.

In September, the board gave Marby $9 million and 10 months for the ODP to come up with its final output, an Operational Design Assessment.

The project is being funded from the remaining application fees from the 2012 application round, rather than ICANN’s regular operations budget.

The text of the resolution gives the deadline as “within ten months from the date of initiation, provided that there are no unforeseen matters that could affect the timeline”.

Assuming the “date of initiation” is some point this month, the ODA would be therefore due to be delivered before the end of November this year, barring “unforeseen matters”.

The document would then be considered by the ICANN board, a process likely to be measured in a handful of months, rather than weeks or days, pushing a final decision on the next round out into the first quarter of 2023.

For avoidance of doubt, that’s the decision about whether or not to even have another new gTLD round.

As a reminder, the 2012 round Applicant Guidebook envisaged a second application round beginning about a year after the first.

Naturally, many would-be applicants are incredibly frustrated that this stuff is taking so long, none more so than the Brand Registry Group, which represents companies that want to apply for dot-brand gTLDs and the consultants that want to help them do so.

Overlapping with ICANN’s December 17 letter to the board, BRG president Karen Day wrote to ICANN (pdf) to complain about the lack of progress and the constant extensions of the runway, saying:

The constant delay and lack of commitment to commencing the next round of new gTLDs is unreasonable and disrespectful to the community that has worked diligently… these delays and lack of commitments to deliver the community’s work is an increasing pattern which risks disincentivizing the volunteer community and threatens the multistakeholder model

Day asked the board to provide more clarity about the ODP’s internal milestones and possible delaying factors, and called for future work to begin in parallel with the ODP in order to shorten the overall roadmap.

It’s worth noting that the ODP may wind up raising more questions than it answers, delaying the next round still further.

It’s only the second ODP ICANN has conducted. The first, related to Whois privacy reform, ended in December (after delays) with a report that essentially shat all over the community’s policy work, predicting that it would take several years and cost tens of millions of dollars to implement for potentially very little benefit.

The board is expected to receive that first ODP’s report in February and there’s no telling what conclusions it will reach.

While Marby has publicly indicated that he’s working on the assumption that there will be another new gTLD round, the ODP gives ICANN a deal of power to frustrate and delay that eventuality, if Org is so inclined.

Monte Cahn revealed as third new gTLD buyer

Domain investor Monte Cahn has revealed himself as the third partner in the controversial acquisition of new gTLD .hiphop from UNR.

Cahn Enterprises named itself alongside already-reported consultant Jeff Neuman of JJN Solutions and publicly traded startup Digital Asset Monetary Network (DigitalAMN) as a partner in newly formed registry vehicle Dot Hip Hop LLC.

DHH bought .hiphop privately from Frank Schilling’s UNR last April at around the same time as UNR auctioned off the other 22 gTLDs in its portfolio, exiting the registry business.

Cahn founded the registrar Moniker, aftermarket pioneer SnapNames and gTLD auction coordinator RightOfTheDot.

RightOfTheDot’s Scott Pruitt has also joined DHH to lead marketing, Cahn’s press release revealed.

The new registry plans to lower the price of .hiphip domains, which currently retail for over $150 a year, as part of an effort to get broader adoption in the hip-hop cultural community.

The company is strongly pushing digital empowerment and “financial literacy” in an “underserved” community as a public benefit of its plans for the TLD.

The problem DHH continues to face is ICANN’s ongoing blocking of the transfer of .hiphop, and the other 22 UNR TLD contracts, due to confusion about the ownership status of matching TLDs on the Ethereum Name Service, a blockchain-based alt-root.

ICANN is fearful of alternative DNS roots which, if they ever gain broad appeal, in theory could break internet interoperability as well as eroding ICANN’s own uniquely powerful and uniquely lucrative authority over the DNS.

DHH’s Neuman recently accused ICANN of foot-dragging and retaliation over the delayed transfers, which is costing the DHH partners money while their legal status is in limbo and they are unable to sell any names.

ICANN’s top brass subsequently denied these accusations, saying the Org is merely following its established (and rather convoluted) appeals procedures.

While these procedures could delay approval of .hiphop’s transfer for another few months, forcing DHH to burn more capital, ICANN said it is “considering the potential impact on the requestor as we have been requested to do”, so it may cut DHH some slack.

Whois reform to take four years, cost up to $107 million A YEAR, and may still be pointless

ICANN’s proposed post-GDPR Whois system could cost over $100 million a year to run and take up to four years to build, but the Org still has no idea whether anyone will use it.

That appears to be the emerging conclusion of ICANN’s very first Operational Design Phase, which sought to translate community recommendations for a Standardized System for Access and Disclosure (SSAD) into a practical implementation plan.

SSAD is supposed to make it easier for people like trademark owners and law enforcement to request personal information from Whois records that is currently redacted due to privacy laws such as GDPR.

The ODP, which was originally meant to conclude in September but will now formally wrap up in February, has decided so far that SSAD will take “three to four years” to design and build, costing between $20 million and $27 million.

It’s calculated the annual running costs at between $14 million and $107 million, an eye-wateringly imprecise estimate arrived at because ICANN has pretty much no idea how many people will want to use SSAD, how much they’d be prepared to pay, and how many Whois requests they will likely make.

ICANN had previously guesstimated startup costs of $9 million and ongoing annual costs around the same level.

The new cost estimates are based on the number of users being anywhere between 25,000 and three million, with the number of annual queries coming in at between 100,000 and 12 million.

And ICANN admits that the actual demand “may be lower” than even the low-end estimate.

“We haven’t been able to figure out how big the demand is,” ICANN CEO Göran Marby told the GNSO Council during a conference call last month.

“Actual demand is unknowable until well after the launch of the SSAD,” an ICANN presentation (pdf) states. The Org contacted 11 research firms to try to get a better handle on likely demand, but most turned down the work for this reason.

On pricing, the ODP decided that it would cost a few hundred bucks for requestors to get accredited into the system, and then anywhere between $0.45 and $40 for every Whois request they make.

Again, the range is so laughably broad because the likely level of demand is unknown. A smaller number of requests would lead to a higher price and vice versa.

Even if there’s an initial flurry of SSAD activity, that could decline over time, the ODP concluded. In part that’s because registries and registrars would be under no obligation to turn over records, even if requestors are paying $40 a pop for their queries.

It’s also because SSAD would not be mandatory — requestors could still approach contracted parties directly for the info they want, for low or no cost, if they think the price of SSAD is too high or accreditation requirements too onerous.

“There’ll always be a free version of this for everybody,” Marby said on the conference call.

In short, it’s a hell of a lot of money for not much functionality. There’s a better than even chance it could be a huge waste of time and money.

An added complication is that the laws that SSAD is supposed to address, mainly GDPR, are likely to change while it’s being implemented. The European Union’s NIS2 Directive stands to move the goalposts on Whois privacy substantially, and not uniformly, in the not-too-distant future, for example.

This is profoundly embarrassing for ICANN as an organization. Created in the 1990s to operate at “internet speed”, it’s now so bloated, so twisted up it its own knickers, that it’s getting lapped by the lumbering EU legislative process.

The ODP is set to submit its final report to ICANN’s board of directors in February. The board could theoretically decide that it’s not in the interest of ICANN or the public to go ahead with it.

Marby, for his part, seems to be thinking that there could be some benefit from a centralized hub for submitting Whois requests, but that it should be simpler than the current “too complex” proposal, and funded by ICANN.

My take is that ICANN is reluctant to move ahead with SSAD as it’s currently proposed, but because top-down policy-making is frowned upon its hands are tied to make the changes it would like to see.

ICANN is blocking 23 gTLD transfers over blockchain fears

ICANN is objecting to the transfer of 23 new gTLDs from UNR to an unknown number of third parties, because it’s scared that the associated non-fungible tokens may break the internet and its own authority over it.

The mystery of how UNR’s auction in April of its entire new gTLD portfolio has so far not resulted in a single ICANN Registry Agreement changing hands appears to have been solved.

It’s because UNR bundled each contract sale with a matching top-level “domain name”, in the form of an NFT, on the Ethereum Name Service, an alt-root based on the Ethereum blockchain, and ICANN is worried about what this means for both the long-term interoperability of the DNS and its own ability to act as the internet’s TLD gatekeeper.

This all emerged in an emergency Request for Reconsideration filed by a company called Dot Hip Hop, which bought .hiphop from UNR earlier in the year.

It turns out .hiphop is the TLD alluded to by Digital Asset Monetary Network, which in October became the first to out itself as a UNR buyer while not naming its gTLD. The purchase was made separately from the April auction, despite .hiphop being “mistakenly” listed as one of the lots.

It also turns out that consultant Jeff Neuman, who’s been a leading figure in the ICANN community since its inception, was behind long-time employer Neustar’s application for .biz, and is a big fan of musical theater, is chief legal officer of and a partner in DHH.

In his reconsideration request, Neuman rages against the fact that it had been over 120 days at time of writing since DHH and UNR had applied to have the .hiphop contract reassigned, but that ICANN is continuing to drag its feet despite DHH long ago passing its due diligence review (which Neuman says cost an excessive $17,000).

DigitalAMN lists DHH as a subsidiary in its recent Securities and Exchange Commission filings. The company is publicly listed but essentially pre-revenue, making its ability to start selling domain names rather quickly rather important.

ICANN has repeatedly delayed approval of the reassignment, provided no visibility into when approval will come, and has repeatedly asked the same questions — largely related to the NFTs — with only slight rewording, Neuman says:

ICANN Org has already communicated to DHH that it has already met all of the criteria required under the Registry Agreement. Yet still, ICANN is withholding consent based on its mere curiosity about the former owner of the .hiphop, TLD (UNR Co), and based on the questions that ICANN keeps re-asking, has presumably conjured up non-issues that: (a) have already been addressed by DHH on multiple occasions over the past 123 days, (b) are beyond the scope of ICANN’s mission, and (c) are philosophical, fictional and frankly do not exist in this matter.

The ENS NFT is a “de minimus” component of the transaction that DHH didn’t even know about until after it had already decided to buy .hiphop, the request states, and ICANN has no authority over the blockchain so the existence of an NFT is not a valid reason to deny the reassignment.

I think I also detect a race card being played here. The RfR spends a bit of time talking about how ICANN’s foot-dragging is making the Org look bad to “traditionally underserved communities where the Hip Hop culture has thrived, globally”.

Apparently referring to DigitalAMN, the RfR states:

In addition to such partner being established at the birthplace of Hip Hop (Bronx New York), by its founder who shares the same birthdate as Hip Hop (August 11th), its mission is to provide financial literacy and economic opportunities for those communities and cultures that are traditionally under-represented, under-funded and under-valued.

DigitalAMN is majority-owned and led by Ajene Watson, who is black. One of company’s stated goals is to connect early stage companies with capital from non-traditional investors (not just the “privileged few”) using non-traditional means.

The RfR goes on to say:

The most dominantly underserved, under-funded and under-valued communities, are also those that embrace and are part of the Hip Hop culture. This Partner has embraced what seemed to be an opportunity to provide domain name registration services to a culture that knows nothing of ICANN, nor the domain name industry. Now, its first impression of the ICANN community is unnecessary delay, a lack of transparency, and bureaucratic indecision—just another gatekeeper to prevent equitable access. In their eyes, they consistently see deadlines that are never met (by ICANN), a lack of information as to why their launch is being held up, and an entity (ICANN) that takes weeks/months to act on anything with no end in sight. In their view, it would appear that ICANN, as an organization, cares nothing about serving the public interest, or about the impact of its actions (or in this case inactions) on the undervalued communities this Partner aims to support.

It should be noted that 22 other unrelated UNR gTLD reassignments are also in limbo, so it’s not like ICANN has a problem in particular with hip-hop music or those who enjoy it.

ICANN, in its response to the RfR, lays all the blame with UNR for, it says, refusing to provide “fulsome and complete” answers to its questions about the NFTs. In a December 10 letter to Neuman, ICANN VP Russ Weinstein wrote:

Significant questions remain, including regarding the role and rights conveyed to the proposed assignees related to the NFTs created on the ENS. For these reasons, ICANN must continue to object to and withhold its consent to all pending Assignments proposed by UNR, including yours.

The RfR was denied by ICANN’s Board Accountability Mechanisms Committee on a technicality. DHH had filed an “emergency” request based on ICANN’s staff inaction, but emergency requests only apply to board action or inaction.

Neuman appears to have known this in advance. It appears DHH just wanted to get something in the public record about the state of play with UNR’s gTLDs.

ICANN seems to have two problems with the NFTs, and they’re both big, existential ones.

First, ENS is essentially an alt-root, and when you have competing roots there’s the risk of TLDs colliding — two or more registries claiming authority for the same TLD — breaking the global interoperability of the internet.

Second, but related, the existence of alt-roots threatens ICANN’s authority.

ICANN has no authority over ENS or the NFT names that live on it, so for a registry to run a TLD in the both the authoritative ICANN root and the alt-root of the ENS could cause problems down the road.

While NFTs can be “owned”, gTLDs are not. UNR is merely the party ICANN has contracted with to run .hiphop. While UNR and any subsequent assignees have a presumptive right of renewal, it’s possible for ICANN to terminate the contract and hand stewardship of the gTLD to another registry. It’s not merely a hypothetical scenario.

Should that ever happen with .hiphop, ICANN wouldn’t have the authority to seize the ENS NFT, meaning the old registry could carry on running .hiphop in the ENS while the new registry runs it in the ICANN root, again breaking global DNS interoperability.

You could spin it either way — either ICANN is worried about interoperability, or it’s worried about protecting its own power. These are not mutually exclusive, and are both probably true.

One thing’s the sure, however — in roadblocking these gTLD transfers, ICANN is playing into the hands of critics and blockchain fanboys who argue for decentralized control of naming, with ICANN as their bogeyman.

GoDaddy gets another year to negotiate .xxx contract

ICANN and GoDaddy seem to have missed their deadline for long-term renewal of their .xxx registry agreement for a second time.

The contract was extended earlier this week until December 15, 2022, giving the parties another full year to bash out whatever amendments are needed.

The initial deal, signed in 2011, was due to expire March 31, but was extended until today to give more time for renegotiation.

.xxx was the last gTLD approved prior to the 2012 application round, and as such it has a few differences to the standard gTLD contract.

The fee structure is particularly complicated; originally, the registry had to pay ICANN $2 per domain, to stuff ICANN’s war chest for anticipated litigation, but that has been reduced through amendments over the years.

ICANN is always keen to bring older contracts into line with the standard Registry Agreement.

The .xxx contract, like legacy gTLDs before it, will be subject to public comment before approval.

GoDaddy is currently pushing renewals for its AdultBlock trademark-protection services.

Hamburg to have second crack at hosting ICANN meeting

The City of Hamburg is to try again to bring in the ICANN crowd, after getting cancelled due to the pandemic last year.

German ccTLD registry DENIC, along with the city and local trade group eco, is taking a run at being selected as the host for ICANN 78, currently penciled in for October 2023, the company said this week.

It had been picked to host ICANN 69 in October 2020, but pandemic travel restrictions scuppered that opportunity.

The last six public ICANN meetings have been online-only, as will next March’s ICANN 73, which had been due to take place in Puerto Rico.

Hamburg’s chances would have to be said to be strong. Three other cancelled host cities — Kuala Lumpur, The Hague and Cancun — have already been confirmed for meetings in 2022 and 2023.

Of course, the ultimate decision-maker is a nucleic acid molecule wearing a spiky protein coat.

ICANN budget: staff bloat making a comeback

ICANN plans to ramp up its headcount starting next year to support the development of the new gTLD program.

Newly published budgeting documents show that average headcount is expected to rise to 406 for the year ending June 30, 2022, from 395 at the end of this June, with an even steeper increase to 448 a year later.

That’s after several years in which staffing levels have been fairly stable, even sometimes declining a little.

The main culprit is the Operational Design Phase for the next new gTLD round(s), which is expected to kick off soon.

ICANN expects to hire or assign nine people to manage the ODP before the end of June 2022, ramping that up to an average of 22 over the following year. The amount of non-ODP operational staff is expected to rise by 28 over the same period.

ICANN currently advertises 31 open positions on its web site, having added eight listings just this week.

This chart shows the expected growth:

At the time of the last new gTLD application round, in 2012, ICANN had 152 staffers, nine of whom were assigned to new gTLD project — and that was after the programs rules had already been developed, implemented and the application window opened and closed.

ICANN budget: no more new gTLDs before 2028

ICANN is not accounting for any revenue from a future round of new gTLDs in its just-published budget, which plots out the Org’s finances all the way through 2028.

The budget, which I gave a high-level summary of here, even predicts that dozens of 2012-round new gTLDs will disappear over the next six years.

The Org is predicting that there will be 1,091 gTLDs on the internet by the end of its fiscal 2027 (that is, June 30, 2028) down by 58 or 5% from July 2022.

Given that it’s only expecting to lose four gTLDs in FY23, this projection implies a speeding up of the rate at which gTLDs start cancelling their contracts or going out of business in the later part of the five-year budget.

The forecast comes with a big asterisk, however. A footnote reads:

These scenarios do not assume any further TLD delegations arising from the resumption of the New gTLD Program. While there is ongoing work and an intent to launch a subsequent round, the timing of its release remains unclear and potential impact(s) on funding indeterminate. Given this, ICANN org has deemed it prudent not to assume any prospective impacts from a subsequent round across the described scenarios.

In other words, ICANN is not yet ready to commit to a runway for the next application round, subsequent delegations and eventual revenue.

As I reported Monday, the next round is unlikely to be approved until the fourth quarter of next year at the earliest, and my view is that 2024 is the soonest the next application window could open.

I don’t think we can read too much into the fact that ICANN isn’t budgeting for any next-round impact on funding until after 2027.

If you’re pessimistic, you could infer that ICANN believes it’s at least a possibility that the next round could take that long, or not be approved at all, but the safer bet is probably that it merely lacks visibility and is acting in its usual risk-averse manner.

ICANN budget: mild optimism amid maturing industry

ICANN thinks the domain industry, including the new gTLD industry, is maturing and will continue to grow, in its just-published draft budget for fiscal 2023.

The Org is predicting growing transactions across the board, as well as an increase in the number of accredited registrars and a slowing decline in the number of contracted gTLDs.

ICANN is expecting funding of $152 million for FY23, which includes the $4 million bung it negotiated with Verisign as part of the deal to allow the company to raise .com prices.

That’s up from the $149.1 million is expects to receive in the current fiscal year.

As usual, the bulk of the funding comes from gTLD transaction fees — the taxes registrants pay through their registrars and registries whenever they register, renew or transfer a domain name.

Legacy gTLD transaction fees are expected to amount to $93.1 million, up 3% on a forecast of $90.1 million in the current year, while new gTLD transaction fees are expected to rise modestly from $9.5 million to $9.9 million, a 4% increase.

Transactions in legacy gTLDs are expected to be 201.2 million, versus 193.6 million in the current year.

New, post-2012 gTLDs are expected to process 25.8 million transactions, up from 24.8 million, of which 21.1 million will be billable, up from 20.3 million. New gTLDs only pay transaction fees after 50,000 domains under management.

ICANN is expecting to lose four registries in FY23 — this almost always means dot-brands that cancel their contracts — with the total declining from a June 2022 total of 1,149 to 1,145 a year later. This will have a modest impact on fixed registry fees.

But the Org is once again expecting to see an increase in the number of registrars paying fixed accreditation fees, up by 28 to 2,447 at the end of FY23.

Accompanying the budget, ICANN has published some industry trend analysis (pdf) outlining some of the assumptions behind the budget forecasts.

Basically, the document describes what regular readers already know — many domain companies benefited from pandemic-related lockdowns driving small businesses online, but overall industry volumes were driven down by low-cost new gTLDs experiencing huge junk drops.

For ICANN’s purposes, factors such as customer quality and pricing are irrelevant. A spammer registering 1,000 domains in bulk pays ICANN the same amount in fees as 1,000 small businesses building their first web sites.

The document reads:

Taken as a whole, DUMs failed to expand in the past twelve months ending in mid-2021. While this decline is at least partly attributable to lower promotional activity among some of the largest new gTLDs which could be reinitiated in the future, it nonetheless points to an industry that has shifted from a period of rapid expansion to one that is now witnessing steady maturation.

The draft ICANN budget covers the 12 months beginning July 1, 2023, and is now open for public comment before possible revisions and final approval.