No ICANN meetings until 2021

Community members itching to be able to suck up to (or berate) ICANN staffers in person rather than over the phone or videoconferencing will have to wait a little longer.

The Org announced today that all face-to-face meetings have been cancelled until the end of the year due to the ongoing coronavirus pandemic.

It doesn’t affect any of the big public meetings — the AGM in October was relocated from Hamburg to Zoom a few months ago — but regular business travel and intersessional meetings are hit.

It also means ICANN staffers will continue to work from home until January at the earliest, ICANN said.

The health and safety of our community and staff are always our top concern, and we believe it is not prudent to travel or encourage gatherings until at least the end of 2020. The ongoing and long-term health impact of COVID-19 on our community and staff is a risk that we are not willing to take. In addition, the travel landscape has not yet stabilized, which makes any travel complicated and risky.

Call me a pessimist, but I’d be very surprised if this is the last time the travel ban is extended.

Floodgates, open! Trademark Clearinghouse now supports .com

The Trademark Clearinghouse has added .com to the roster of TLDs supported by its infringement notification service.

The Deloitte-managed service recently announced the change to its Ongoing Notification Service, which came into effect late last month.

The update means TMCH subscribers will receive alerts whenever a .com domain is registered that contains their trademark, helping them to decide whether to pursue enforcement actions such as UDRP.

Unlike the ICANN-mandated 90-day Trademark Claims period that accompanies the launch of each new gTLD, the registrant herself does not receive an alert of possible infringement at point of registration.

The service, which is not regulated by ICANN, is still free to companies that have their marks registered in the TMCH, which charges an extra dollar for every variation of a mark the holder wishes to monitor.

Such services have been commercially available from the likes of MarkMonitor for 20 years or more. The TMCH has been offering it for new gTLDs since they started launching at the end of 2013.

With the .com-shaped gaping hole now plugged, two things could happen.

First, clients may find a steep increase in the number of alerts they receive — .com is still the biggest-selling and in volume terms the most-abused TLD.

Second, commercial providers of similar services now find themselves competing against a free rival with an ICANN-enabled captive audience.

The upgrade comes at the tail end of the current wave of the new gTLD program. With the .gay launch out of the way and other desirable open TLDs tied up in litigation, there won’t be much call for TMCH’s core services for the next few years.

It also comes just a couple months after the .com zone file started being published on ICANN’s Centralized Zone Data Service, but I expect that’s just a coincidence.

GoDaddy could lose control of .co this week

It looks like GoDaddy’s recently acquired .co registry could lose formal control of the ccTLD this week.

ICANN’s board of directors has “Transfer of the .CO (Colombia) top-level domain to the Ministry of Information and Communications Technologies” on its agenda for its meeting this Thursday.

Since 2009, IANA record for .co shows the Colombian company .CO Internet as the sponsor, admin contact and tech contact.

.CO Internet was acquired by Neustar for $109 million in 2014. Neustar’s registry business, including the .co contract, was acquired by GoDaddy earlier this year. Most of .CO Internet’s original staff are still with the company.

GoDaddy now has the contract to run .co for the next five years, but as a service provider rather than having full administrative control of the TLD.

A redelegation to the Colombian ministry will not affect that contract, and in fact seems to have been envisaged by it.

Back in April when the renewal was announced, MinTIC said it would in future “be in charge of its [.co’s] administration through a group dedicated to Internet governance with technical personnel with knowledge and ability to manage and administer the domain”.

The new deal also sees Colombia receive 81% of the profits from .co, compared to the 6-7% it received under the old deal.

Assuming the ICANN board gives the redelegation the nod this week, it usually only takes IANA a day or two to make the appropriate updates to its registry.

ICANN ordered to freeze .hotel after “serious questions” about trade secrets “theft”

ICANN has been instructed to place the proposed .hotel gTLD in limbo after four applicants for the string raised “sufficiently serious questions” that ICANN may have whitewashed the “theft” of trade secrets.

The order was handed down last month by the emergency panelist in the Independent Review Process case against ICANN by claimants Fegistry, MMX, Radix and Domain Ventures Partners.

Christopher Gibson told ICANN to “maintain the status quo” with regards the .hotel contention set, meaning currently winning applicant Hotel Top Level Domain, which is now owned by Afilias, won’t get contracted or delegated until the IRP is resolved.

At the core of the decision (pdf) is Gibson’s view that the claimants raised “sufficiently serious questions related to the merits” in allegations that ICANN mishandled and acted less than transparently in its investigation into a series of data breaches several years ago.

You may recall that ICANN seriously screwed up its new gTLD application portal, configuring in such a way that any applicant was able to search for and view the confidential data, including financial information such as revenue projections, of any other competing applicant.

Basically, ICANN was accidentally publishing applicants’ trade secrets on its web site for years.

ICANN discovered the glitch in 2015 and conducted an audit, which initially fingered Dirk Krischenowski — who at time was the half-owner of a company that owned almost half of HTLD as well as a lead consultant on the bid — as the person who appeared to have accessed the vast majority of the confidential data in March and April 2014.

ICANN did not initially go public with his identity, but it did inform the affected applicants and I managed to get a copy of the email, which said he’d downloaded about 200 records he shouldn’t have been able to access.

It later came to light that Krischenowski was not the only HTLD employee to use the misconfiguration to access data — according to ICANN, then-CEO of HTLD Katrin Ohlmer and lawyer Oliver Süme had too.

HTLD execs have always denied any wrongdoing, and as far as I know there’s never been any action against them in the proper courts. Krischenowski has maintained that he had no idea the portal was glitched, and he was using it in good faith.

Also, neither Ohlmer nor Krischenowski are still involved with HTLD, having been bought out by Afilias after the hacking claims emerged.

These claims of trade secret “theft” are being raised again now because the losing .hotel applicants think ICANN screwed up its probe and basically tried to make it go away out of embarrassment.

Back in August 2016, the ICANN board decided that demands to cancel the HTLD application were “not warranted”. Ohlmer barely gets a mention in the resolution’s rationale.

The losing applicants challenged this decision in a Request for Reconsideration in 2016, known as Request 16-11 (pdf). In that request, they argued that the ICANN board had basically ignored Ohlmer’s role.

Request 16-11 was finally rejected by the ICANN board in January last year, with the board saying it had in fact considered Ohlmer when making its decision.

But the IRP claimants now point to a baffling part of ICANN’s rationale for doing so: that it found “no evidence that any of the confidential information that Ms. Ohlmer (or Mr. Krischenowski) improperly accessed was provided to HTLD”.

In other words, ICANN said that the CEO of the company did not provide the information that she had obtained to the company of which she was CEO. Clear?

Another reason for brushing off the hacking claims has been that HTLD could have seen no benefit during the application process by having access to its rivals’ confidential data.

HTLD won the contention set, avoiding the need for an auction, in a Community Priority Evaluation. ICANN says the CPE was wholly based on information provided in its 2012 application, so any data obtained in 2014 would have been worthless.

But the losing applicants say that doesn’t matter, as HTLD/Afilias still have access to their trade secrets, which could make the company a more effective competitor should .hotel be delegated.

This all seems to have been important to Gibson’s determination. He wrote in his emergency ruling (pdf) last month:

The Emergency Panelist determines that Claimants have raised “sufficiently serious questions related to the merits” in in relation to the Board’s denial of Request 16-11, with respect to the allegations concerning the Portal Configuration issues in Request 16-11. This conclusion is made on the basis of all of the above information, and in view of Claimants’ IRP Request claim that ICANN subverted the investigation into HTLD’s alleged theft of trade secrets. In particular, Claimants claim that ICANN refused to produce key information underlying its reported conclusions in the investigation; that it violated the duty of transparency by withholding that information; that the Board’s action to ignore relevant facts and law was a violation of Bylaws; and further, to extent the BAMC and/or Board failed to have such information before deciding to disregard HTLD’s alleged breach, that violated their duty of due diligence upon reasonable investigation, and duty of independent judgment.

The Emergency Panelist echoes concerns that were raised initially by the Despegar IRP Panel regarding the Portal Configuration issues, where that Panel found that “serious allegations” had been made188 and referenced Article III(1) of ICANN’s Bylaws in effect at that time, but declined to make a finding on those issues, indicating “that it should remain open to be considered at a future IRP should one be commenced in respect of this issue.” Since that time, ICANN conducted an internal investigation of the Portal Configuration issues, as noted above; however, the alleged lack of disclosure, as well as certain inconsistencies in the decisions of the BAMC and the Board regarding the persons to whom the confidential information was disclosed and their relationship to, or position with HTLD, as well as ICANN’s decision to ultimately rely on a “no harm no foul” rationale when deciding to permit the HTLD application to proceed, all raise sufficiently serious questions related to the merits of whether the Board breached ICANN’s Article, Bylaws or other polices and commitments.

It’s important to note that this is not a final ruling that ICANN did anything wrong, it’s basically the ICANN equivalent of a ruling on a preliminary injunction and Gibson is saying the claimants’ allegations are worthy of further inquiry.

And the ruling did not go entirely the way of the claimants. Gibson in fact ruled against them on most of their demands.

For example, he said their was insufficient evidence to revisit claims that a review of the CPE process carried out by FTI Consulting was a whitewash, and he refused to order ICANN to preserve documentation relating to the case (though ICANN has said it will do so anyway).

He also ruled against the claimants on a few procedural issues, such as their demands for an Ombudsman review and for IRP administrator the International Center for Dispute Resolution to recuse itself.

Some of their claims were also time-barred under ICANN’s equivalent of the statute of limitations.

But ICANN will be prevented from contracting with HTLD/Afilias for now, which is a key strategic win.

ICANN reckons the claimants are just using the IRP to try to force deep-pocketed Afilias into a private auction they can be paid to lose, and I don’t doubt there’s more than a grain of truth in that claim.

But if it exposes another ICANN cover-up in the process, I for one can live with that.

The case continues…

ICANN will spend $51,000 on your broadband

ICANN has set aside up to $51,000 to reimburse community members for their broadband costs during its next public meeting.

Under the newly agreed Pandemic Internet Access Reimbursement Program Pilot, participants in ICANN 69 will get a maximum of $60 each to cover the costs of increased bandwidth or data caps during the month of October.

The pilot is limited to only those who already have their travel funded from the ICANN budget, such as members of important committees and the Fellowship program.

They’ll have to provide receipts from a legit ISP showing how much they paid to participate in the meeting, which will be the third in a row to be carried out via Zoom.

Anyone who wants the reimbursement will have to apply before October 2, and payouts will be made in November.

ICANN will also publish the names of those who receive the payments, as it does with travel reimbursements, which should discourage abuse.

As I’ve previously noted, ICANN is saving millions this year by eschewing in-person meetings, and $51,000 really is a drop in that ocean.

ICANN 69 runs from October 17 to October 22. It had originally been scheduled to run in Hamburg.

ICANN apologizes to “arms dealer” claim security firm after email goes missing

ICANN has apologized to the security company that claimed an accredited registrar was in league with malware distributors, after an email went AWOL.

You may recall that registrar GalComm was accused by Awake Security last month of turning a blind eye to abuse in a report entitled “The Internet’s New Arms Dealers: Malicious Domain Registrars” and that ICANN’s preliminary investigation later essentially dismissed the allegations.

ICANN had told GalComm (pdf) August 18 that Awake had not “to date” contacted ICANN about its allegations, but that appears to have been untrue.

GalComm’s lawyers had in fact emailed a letter to ICANN, using its “globalsupport” at icann.org email address, on August 6, as said lawyers testily informed (pdf) Global Domains Division VP Russ Weinstein August 20.

Weinstein has now confirmed (pdf) that a letter from Awake was received to said email address but “was not escalated internally”. He said he was “previously unaware” of the letter. He wrote:

I apologize for this inadvertent oversight and we will use this as a training opportunity to prevent such errors in the future.

GalComm has been threatening to sue Awake for defamation since the “arms dealer” report was published, so it looks like ICANN’s decision to eat humble pie is probably a prudent way to keep its name off the docket.

The letter from Awake’s lawyers (pdf) also includes a lengthy explanation of why the original report is not, in its view, defamatory.

The lesson for the rest of us appears to be that the ICANN email address in question is probably not the best way to reach ICANN’s senior management.

Weinstein said that abuse complaints about registrars should be sent to its “compliance” at icann.org address.

Amazon waves off demand for more government blocks

Amazon seems to have brushed off South American government demands for more reserved domains in the controversial .amazon gTLD.

VP of public policy Brian Huseman has written to Amazon Cooperation Treaty Organization secretary general Alexandra Moreira to indicate that Amazon is pretty much sticking to its guns when it comes to .amazon policy.

Moreira had written to Huseman a few weeks ago to complain that the Public Interest Commitments included in Amazon’s registry contract with ICANN do not go far enough to protect terms culturally sensitive to the Amazon region.

She wanted more protection for the “names of cities, villages, mountains, rivers, animals, plants, food and other expressions of the Amazon biome, biodiversity, folklore and culture”.

ACTO also has beef with an apparently unilateral “memorandum of understanding” (page 8 of this PDF) Amazon says it has committed to.

That MoU would see the creation of a Steering Committee, comprising three Amazon representatives and nine from ACTO and each of its eight member states, which would guide the creation and maintenance of .amazon block-lists.

ACTO is worried that the PICs make no mention of either the committee or the MoU, and that Huseman is the only signatory to the MoU, which it says makes the whole thing non-binding.

Moreira’s August 14 letter asked for Amazon and ACTO to “mutually agree on a document”, and for the PICs to be amended to incorporate the MoU, making it binding and enforceable. She also asked for potentially thousands of additional protected terms.

Huseman replied August 28, in a letter seen by DI, to say that Amazon is “committed to safeguard the people, culture, and heritage of the Amazonia region” and that the PICs and MoU “have the full backing and commitment” of the company.

He added:

We are disappointed that we have not yet received the names and contact information of those within ACTO who might serve on the Steering Committee contemplated in the MOU because their knowledge and help could be very beneficial as we move forward to implement the PICs.

The letter does not address ACTO’s demand for a binding bilateral agreement, nor the request for additional blocks.

ICANN itself is no longer a party to these negotiations, having washed its hands of the sorry business last month.

Schreiber really did sue you all, sorry

It seems the aggrieved domain registrant and troll Graham Schreiber really has filed a lawsuit against scores of current and former domain name industry and ICANN community members.

You may recall that last week I blogged about a purported lawsuit by Schreiber against many industry professionals, as well as people who’ve been heavily involved in ICANN over the last couple decades.

I noted that there was no independent confirmation that any complaint has actually been filed in any court, but it turns out a complaint has now actually been filed.

A search on the Canadian Federal Court system reveals:

That appears to be an intellectual property lawsuit filed August 25 by Schreiber against “Jeffrey Levee et al”.

That’s five days after the document started circulating among defendants and my original coverage.

Levee is the long-time outside counsel for ICANN, working for Jones Day for two decades. In the org’s early days, his name often popped up in conspiracy theories.

The Schreiber document that was circulated last week just happened to name Levee as his first defendant, followed by several dozen more, often far less influential, individuals and companies.

To see my original coverage of the pretty much incomprehensible complaint, along with a link to the document, go here.

Fight over closed generics ends in stalemate

Closed generic gTLDs could be a thing in the next application round. Or they might not. Even after four years, ICANN’s greatest policy-making minds can’t agree.

The New gTLDs Subsequent Procedures working group (SubPro) delivered its draft final policy recommendations last week, and the most glaring lack of consensus concerned closed generics.

A closed generic is a dictionary-word gTLD, not matching the applicant’s trademark, that is nevertheless treated as if it were a dot-brand, where the registry is the only eligible registrant.

It’s basically a way for companies to vacuum up the strings most relevant to their businesses, keeping them out of the hands of competitors.

There were 186 attempts to apply for closed generics in 2012 — L’Oreal applied for TLDs such as .beauty, .makeup and .hair with the clear expectation of registry-exclusive registrations, for example

But ICANN moved the goalposts in 2013 following advice from its Governmental Advisory Committee, asking these applicants to either withdraw or amend their applications. It finally banned the concept in 2015, and punted the policy question to SubPro.

But SubPro, made up of a diverse spectrum of volunteers, was unable to reach a consensus on whether closed generics should be allowed and under what circumstances. It’s the one glaring hole in its final report.

The working group does appear to have taken on board the same GAC advice as ICANN did seven years ago, however, which presents its own set of problems. Back in 2013, GAC advice was often written in such a way as to be deliberately vague and borderline unimplementable.

In this case, the GAC had told ICANN to ban closed generics unless there was a “a public interest goal”. What to make of this advice appears to have been a stumbling block for SubPro. What the hell is the “public interest” anyway?

Working group members were split into three camps: those that believed closed generics should be banned outright, those who believed that should be permitted without limitation, and those who said they should be allowed but tightly regulated.

Three different groups from SubPro submitted proposals for how closed generics should be handled.

The most straightforward, penned by consultant Kurt Pritz and industry lawyers Marc Trachtenberg and Mike Rodenbaugh, and entitled The Case for Delegating Closed Generics (pdf) basically says that closed generics encourage innovation and should be permitted without limitation.

This trio argues that there are no adequate, workable definitions of either “generic” or “public interest”, and that closed generics are likely to cause more good than harm.

They raise the example of .book, which was applied for by Amazon as a closed generic and eventually contracted as an open gTLD.

Many of us were thrilled when Amazon applied for .book. Participation by Amazon validated the whole program and the world’s largest book seller was well disposed to use the platform for innovation. Yet, we decided to get in the way of that. What harm was avoided by cancelling the incalculable benefit staring us right in the face?

Coincidentally, Amazon signed its .book registry agreement exactly five years ago today and has done precisely nothing with it. There’s not even a launch plan. It looks, to all intents and purposes, warehoused.

It goes without saying that if closed generics are allowed by ICANN, it will substantially increase the number of potential new gTLD applicants in the next round and therefore the amount of work available for consultants and lawyers.

The second proposal (pdf), submitted by recently independent policy consultant Jeff Neuman of JJN Solutions, envisages allowing closed generics, but with only with heavy end-user (not registrant) involvement.

This idea would see a few layers of oversight, including a “governance council” of end users for each closed generic, and seems to be designed to avoid big companies harming competition in their industries.

The third proposal (pdf), written by Alan Greenberg, Kathy Kleiman, George Sadowsky and Greg Shatan, would create a new class of gTLDs called “Public Interest Closed Generic gTLDs” or “PICGS”.

This is basically the non-profit option.

PICGS would be very similar to the “Community” gTLDs present since the 2012 round. In this case, the applicant would have to be a non-profit entity and it would have to have a “critical mass” of support from others in the area of interest represented by the string.

The model would basically rule out the likes of L’Oreal’s .makeup and Amazon’s .book, but would allow, off the top of my head, something like .relief being run by the likes of the Red Cross, Oxfam and UNICEF.

Because the working group could not coalesce behind any of these proposals, it’s perhaps an area where public comment could have the most impact.

The SubPro draft final report is out for public comment now until September 30.

After it’s given final approval, it will go to the GNSO Council and then the ICANN board before finally becoming policy.

New gTLD prices could be kept artificially high

ICANN might keep its new gTLD application fees artificially expensive in future in order to deter TLD warehousing.

Under a policy recommendation out from the New gTLDs Subsequent Procedures working group (SubPro) last week, ICANN should impose an “application fee floor” to help keep top-level domains out of the hands of gamers and miscreants.

In the 2012 application round, the $185,000 fee was calculated on a “cost-recovery basis”. That is, ICANN was not supposed to use it as a revenue source for its other activities.

But SubPro wants to amend that policy so that, should the costs of the program ever fall before a yet-to-be-determined minimum threshold, the application fee would be set at this fee floor and ICANN would take in more money from the program than it costs to run.

SubPro wrote:

The Working Group believes that it is appropriate to establish an application fee floor, or minimum application fee that would apply regardless of projected program costs that would need to be recovered through application fees collected. The purpose of an application fee floor is to deter speculation and potential warehousing of TLDs, as well as mitigate against the use of TLDs for abusive or malicious purposes. The Working Group’s support for a fee floor is also based on the recognition that the operation of a domain name registry is akin to the operation of a critical part of the Internet infrastructure.

The working group did not put a figure on what the fee floor should be, instead entrusting ICANN to do the math (and publicly show its working).

But SubPro agreed that ICANN should not use what essentially amounts to a profit to fund its other activities.

The excess cash could only be used for things related to the new gTLD program, such as publicizing the availability of new gTLDs or subsidizing poorer applicants via the Applicant Support Program.

ICANN already accounts for its costs related to the program separately. It took in $361 million in application fees back in 2012 and as of the end of 2019 it had $62 million remaining.

Does that mean fees could come down by as much as 17% in the next application round based on ICANN’s experience? Not necessarily — about a third of the $185,000 fee was allocated to a “risk fund” used to cover unexpected developments such as lawsuits, and that risk profile hasn’t necessarily changed in the last eight years.

Fees could be lowered for other reasons also.

As I blogged earlier today, a new registry service provider pre-evaluation program could reduce the application fee for the vast majority of applicants by eliminating redundancies and shifting the cost of technical evaluations from applicants to RSPs.

The financial evaluation is also being radically simplified, which could reduce the application fee.

In 2012, evaluations were carried out based on the applicant’s modelling of how many domains it expected to sell and how that would cover its expenses, but many applicants were way off base with their projections, rendering the process flawed.

SubPro proposes to do away with this in favor generally of applicants self-certifying that their financial situation meets the challenge. Public companies on the world’s largest 25 exchanges won’t have to prove they’re financially capable of running a gTLD at all.

The working group is also proposing changes to the Applicant Support Program, under which ICANN subsidizes the application fee for needy applicants. It wasn’t used much in 2012, a failure largely attributed to ICANN’s lack of outreach in the Global South.

Under SubPro’s recommendations, ICANN would be required to do a much better job of advertising the program’s existence, and subsidies would extend beyond the application fee to additional services such as consultants and lawyers.

Language from the existing policy restricting the program to a few dozen of the world’s poorest countries (which was, in practice, ignored in 2012 anyway), would also be removed and ICANN would be encouraged to conduct outreach in a broader range of countries.

In terms of costs, dot-brand applicants also get some love from SubPro. These applicants will be spared the requirement to have a so-called Continuing Operations Instrument.

The COI is basically a financial safeguard for registrants, usually a letter of credit from a big bank. In the event that a registry goes out of business, the COI is tapped to pay for three years of operations, enabling registrants to peacefully transition to a different TLD.

Given that the only registrant of a dot-brand gTLD is the registry itself, this protection clearly isn’t needed, so SubPro is making dot-brand applicants exempt.

Overall, it seems very likely that the cost of applying for a new gTLD is going to come down in the next round. Whether it comes down to something in excess of the fee floor or below it is going to depend entirely on ICANN’s models and estimates over the coming couple of years.