ICANN could block Donuts from buying Afilias

In what appears to be an almost unprecedented move, ICANN is to review Donuts’ proposed acquisition of rival Afilias at the highest level, raising a question mark over the industry mega-merger.

The org’s board of directors will meet Thursday to consider, among other things, “Afilias Change of Control Approval Request”.

It’s highly unusual for a change of control to be discussed at such a high level.

Every registry contract contains clauses requiring ICANN’s consent before a registry switches owners, and it has approved hundreds over the last decade. But the process is usually handled by legal staff, without board involvement.

The only time, to my memory, that the board has got involved was when it withheld consent from .org manager Public Interest Registry earlier this year.

It’s not entirely clear why Afilias has been singled out for special treatment.

It’s probably not due to its status as a legacy gTLD registry operator because of .info — when GoDaddy bought .biz operator Neustar’s registry business earlier this year, there was no such board review.

In addition, the .info contract’s change of control provisions are very similar to those in the standard new gTLD contract.

Could it be due to Donuts executives former ties to ICANN and the perception of a conflict of interest? Again, it seems unlikely.

While Donuts CEO Akram Atallah is former president of ICANN’s Global Domains Division, former ICANN CEO Fadi Chehadé is no longer involved with Donuts owner Abry Partners, having jumped to erstwhile PIR bidder Ethos Capital this July.

Are there competition concerns? It’s a possibility.

Afilias holds the contracts for 24 gTLDs new and legacy, but supports a couple hundred more, while Donuts is contracted for over 240.

But between them, they have barely 10 million domains under management. Donuts isn’t even the market leader in terms of new gTLD registrations.

And ICANN avoids making competition pronouncements like the plague, preferring instead to refer to national competition regulators.

Could ICANN’s interest have been perked by the fact that Afilias is the back-end provider for .org’s 10 million domains, and the proposed Donuts deal comes hot on the heels of the failed PIR acquisition? Again, it’s a possibility.

But none of the dangers ICANN identified in the .org deal — such as pricing, freedom of speech, and the change from a non-profit to for-profit corporate structure — appear to apply here.

There could be technical concerns. Atallah told DI a couple weeks ago that the plan was to ultimately migrate its managed TLDs to its Amazon cloud-based registry.

But moving its clients’ TLDs to a new back-end infrastructure would require their consent — it would be up to PIR and its overlords at the Internet Society to agree to moving .org to the cloud.

I think it’s likely that a combination of all the above factors, and maybe others, are what’s driving the Afilias acquisition to the ICANN boardroom. It will be interesting to see what the board decrees.

Westerdal offloads two more gTLDs to Donuts

Donuts has bulked out its gTLD portfolio yet again, acquiring two more strings from Fegistry and Top Level Spectrum.

ICANN records show that it recently took over the contracts for .observer and .realty.

They’re both launched, active TLDs. Both selling registries are backed by investor Jay Westerdal.

.observer was bought dormant by TLS from the British newspaper of the same name in 2016 and launched the following year with .com-competitive prices.

TLS has been marketing it as a place for news organizations, though it’s unrestricted. Registrations plateaued at about 1,000 a couple of years ago and haven’t seen much movement since.

.realty is a different story.

Fegistry paid ICANN $5,588,888 at a public auction — beating Donuts, in fact — in 2014, and launched it in 2017 with a roughly $300-a-year retail price.

It’s been cruising along with about 2,200 names under management for the last couple of years, until this September and early October, when its zone file shot up to almost 18,000 domains.

This seems to have been the result of a $0.99 promotion at Epik, which has since ended.

One would have to assume that the vast majority of those new domains will be speculative and are unlikely to renew at the full $300 reg fee a year from now.

While the contracts changed hands in late October, it’s inconceivable that Donuts was not aware of the quality of the recent registrations.

It’s not the first time Westerdal’s businesses have sold to Donuts, which took .contact off Top Level Spectrum’s hands in April 2019. That gTLD entered general availability this week.

It’s also handed off responsibility for .forum to MMX, which plans to launch it with a puzzling $1,000 price tag next March, although TLS is still listed as the ICANN contractor.

TLS still runs the controversial gripe site TLD .feedback, along with the unlaunched head-scratcher .pid.

Fegistry is still fighting for .hotel, along with rival applicants, in ICANN’s quasi-judicial Independent Review Process.

Whois privacy group finds its new chair

Verisign’s top policy veep is set to become the third chair of the ICANN working group looking at Whois policy in the post-GDPR world.

Keith Drazek has been recommended to head the long-running group, known as the EPDP, and the GNSO Council is due to vote on his appointment next week. He’s likely to be a shoo-in.

He’s VP of policy and government relations at the .com registry, and a long-standing member of the ICANN policy-making community.

I recently opined that ICANN was looking for a “masochistic mug” to chair the group. Drazek was until October the chair of the GNSO Council, and is therefore perfectly qualified for the role.

The third phase of the EPDP process, which in typical ICANNese is denominated “phase 2a”, is likely to be slightly less controversial than the first two.

The EPDP has already decided that ICANN should probably create a Standardized System for Access and Disclosure — SSAD — that may enable law enforcement and intellectual property owners to get their hands on unredacted Whois records.

But governments, IP interests and others have already dismissed the plan as useless, and there’s still a big question mark over whether SSAD is too complex and expensive to be worth implementing.

In the third phase, EPDP members will be discussing rules on distinguishing between legal and natural persons when record-holders decide what info to make public, and whether there should be a standardized system of unique, anonymized email forwarders to contact domain registrants.

They’re both less divisive topics than have been previously addressed, but not without the potential for fireworks.

The email issue, for example, could theoretically enable people to harvest a registrant’s entire portfolio of domains, something very useful for law enforcement and IP lawyers but abhorrent to privacy advocates.

The previous two phases were chaired by Kurt Pritz and Janis Karklins, with Rafik Dammak acting as vice-chair.

Three more new gTLDs blink out of existence

Another new gTLD registry operator, representing three dot-brands, has told ICANN that they want their contracts scrapped.

The registry is CNH Industrial, and the gTLDs are .case, .caseih and .newholland.

To be honest, if you’d asked me yesterday whether these TLDs existed or not, I would have guessed not.

But CNH is a pretty big deal — a New York-listed multinational maker of construction and agricultural equipment and vehicles with over $28 billion in revenue last year. Case and New Holland are two of its brands.

The brands do not appear to have been discontinued, so this seems to be a typical case of company simply deciding against using its TLDs, which it probably shouldn’t have applied for in the first place.

None of them has any domains beyond the mandatory nic.example site.

Interestingly, it has a fourth dot-brand, .iveco, representing a vehicle brand, that so far it does not seem to have terminated, judging by ICANN records. But that’s not in use either.

The terminations bring the total dead dot-brands to 85, 16 of which died this year.

Credit union gTLD changes hands to perhaps surprising buyer

Yet another new gTLD is moving to a new registry, but this time it’s not a case of a large gTLD holder bulking up its portfolio.

This time it’s .creditunion, and the new registry is 18-year-old .coop registry DotCooperation, according to ICANN records.

.creditunion was delegated to the Credit Union Nation Association, the trade group for US credit unions, in 2015 and launched in 2017.

Like .coop, it’s a tightly restricted TLD, with eligibility only for those with a “meaningful nexus to the credit union sector”.

It had 580 domains at the last count, having peaked at 640 a couple years ago. The domains are being used as primary domains by at least a couple dozen credit unions.

But volume was never the plan for .creditunion, with CUNA specifically citing .coop as its role model in its 2012 new gTLD application.

“The success of the gTLD will not be measured by the number of domain names registered. Instead, it will be measured by the level of consumer recognition and trust,” CUNA said back then.

CUNA actually announced the DotCooperation deal in a press release on its web site at the end of September, but I don’t think anyone in the domain industry noticed.

.coop, which is reserved for co-operative associations, was one of the original 2000-round new gTLDs. It’s been chugging along at relatively low volume for the last two decades, peaking at 15,000 in February 2013.

For the last few years, it’s been growing by maybe a dozen or so domains a month, and currently stands at about 8,300 names.

DotCooperation is jointly owned by the National Cooperative Business Association and the International Cooperative Alliance.

ICANN finally addresses Net 4 India meltdown, but mysteries remain

ICANN today made an effort to publicly address the hundreds of complaints that have recently been made about Net 4 India, India’s largest registrar, which has been in insolvency proceedings for over three years and recently started losing its customers’ domains.

In a lengthy blog post, ICANN confirmed that it received roughly 300 complaints about Net4 in August and September, when India was in coronavirus lockdown and the registrar’s customer service department was unable to cope with demand.

Many customers reported on social media and elsewhere that domains were expiring and transfers to third-party registrars were not possible.

ICANN said it had received over 400 complaints since it filed its first notice of suspension against Net4, which came about after ICANN learned of the insolvency proceedings, in June 2019. It says 74% have been resolved and it’s working on the remainder.

The post sets out customers’ options when it comes to filing complaints, which is complicated by the fact that Net4 also acts as a reseller for OpenProvider, which is not in the same financial difficulty.

ICANN’s says that it is closely monitoring Net4’s compliance with its Registrar Accreditation Agreement and has regular contact with the insolvency court where the company’s case is being heard.

What’s unclear is why the company has been permitted to continue to operate as an accredited registrar, despite its insolvency proceeding being a direct violation of the RAA. ICANN filed a suspension notice in June last year, but has postponed its effective date ever since.

While ICANN says it has not ruled out terminating Net4 and transferring its domains to another registrar, the reality may be that it is unable to do so.

In today’s post, ICANN says it “postponed the start date of the Suspension Period after considering information regarding the insolvency proceedings” provided by the court-appointed resolution professional.

Last month, during the ICANN 69 public forum, the org was asked by an Indian registrant what it was doing about Net4, and compliance chief Jamie Hedlund responded:

When they initially filed for insolvency, we attempted to suspend them and prevent them from being able to register new names. But unfortunately due to the insolvency, we were not able to do that.

It seems that a resolution professional appointed by a quasi-judicial Indian court has managed to trump ICANN’s powers under its Californian-law registrar contract.

Net4’s latest registry transaction reports show that it had 90,000 gTLD domains under management at the end of July. It’s bleeding thousands of domains every month. The company claims to have 400,000 customers in total.

The insolvency proceedings were initiated in 2017 by a debt-recovery agency called Edelweiss, which had acquired $28 million of debts Net4 owed the State Bank of India.

Masochistic mug urgently wanted for thankless, pay-free ICANN leadership role

ICANN still hasn’t found itself a volunteer to head up the next round of no-doubt contentious discussions about Whois policy.

Today it put out its second call for a chair of the Expedited Policy Development Process working group, which is continuing to square the circle of keeping Whois data compliant with data protection law whilst also allowing cops and IP lawyers access to the data.

The EPDP was supposed to have concluded a few months ago with the end of the second phase of talks, but a couple of issues were left unresolved, leading to the creation of a third phase, being spun as “Phase 2a”.

The first issue still to be discussed is if and how registries and registrars should be obliged to make a distinction between the data of private individuals, which is protected by law, and legal entities, which isn’t.

The second is whether it would be possible to have a uniform system of anonymized email addresses across Whois records.

They’re not exactly the most controversial of topics under the Whois umbrella, but they’re not easy asks either.

And the role of chair is time-consuming, uncompensated, with few perks.

ICANN wants somebody who is neutral and, unstated but perhaps more importantly, perceived to be neutral. The chairs of the previous two phases have been policy heavy-hitters Kurt Pritz and Janis Karklins.

It also wants somebody with “considerable experience in chairing working groups”, which immediately drains the pool of potential applicants.

If previous phases of the EPDP are any guide, the successful applicant will have to herd the cats through dozens of hours of teleconferences — the more-complex phase two had 74 meetings, most of which were two hours long.

For their efforts, the chair gets no money, and because of coronavirus travel restrictions they won’t even get paid junkets to international face-to-face meetings.

And if the output of the next phase is anywhere as near as divisive as phase two, they probably won’t win much praise either.

That’s perhaps why ICANN has extended the deadline for expressions of interest from last Friday to November 23.

Applicants go here.

ICANN made over $500k in secret lawyer payments over [REDACTED] legal dispute

ICANN has approved a payout of over half a million dollars to outside lawyers for work on a legal dispute it does not want you to know about.

The board of directors a week ago approved the disbursement of a “[Redacted – Privileged & Confidential]” sum to undisclosed parties in relation to “extensive activity in [Redacted – Privileged & Confidential]”.

Under ICANN policy, the fact that board approval was required means that the amount being paid is at least $500,000. The redacted resolution also authorizes additional payments up to $499,999.

ICANN isn’t providing any hints about what the payments concern, other than that it’s a legal dispute of some kind. The resolution states:

When required, ICANN must engage outside legal counsel to help prepare for and defend against all types of disputes that are brought against ICANN. When those disputes become highly contentious they often require significant involvement during a certain time period by outside counsel and that significant amount of time also results in significant fees and related expenses.

The words “related expenses” may be telling. We may not just be talking about lawyers’ fees here.

ICANN also does not state when the expenses were incurred, other than to note that the org’s budget for fiscal 2020, which ended June 30, “contemplated” the need for such payments.

So we’re talking about a legal issue that ICANN was aware of before May 2019, when the FY20 budget was approved, possibly as far back as December 2018, when earlier versions of that budget were published.

Known legal disputes that were active back then and have seen activity in the last few months include the Afilias Independent Review Process complaint about the .web auction and DotConnectAfrica’s court appeal over its .africa loss.

But both of those cases are matters of public record. ICANN even regularly publishes legal documentation on both. They’re not secret.

The only cases I’m aware of that ICANN has actively tried to keep secret involve allegations of sexual discrimination and harassment made against at least one former senior staffer. One such lawsuit was filed late February 2019.

But the hundreds of thousands doled out by ICANN last week could be related to just about anything.

ICANN’s bylaws give the board a broad brush when it comes to redacting information from published resolutions:

any actions relating to personnel or employment matters, legal matters (to the extent the Board determines it is necessary or appropriate to protect the interests of ICANN), matters that ICANN is prohibited by law or contract from disclosing publicly, and other matters that the Board determines, by a three-quarters (3/4) vote of Directors present at the meeting and voting, are not appropriate for public distribution

Usually, when ICANN redacts information, it’s related to personnel matters such as management bonuses.

Whatever it was ICANN just spent your money on, ICANN ain’t saying.

.trust finds a new home with UNR

UNR has acquired the contract to run the .trust new gTLD.

According to ICANN records, the registry agreement was transferred to UNR, the registry arm of the former Uniregistry, back in June.

It’s the second time the TLD has changed hands since it was delegated back in 2014.

It was originally awarded by ICANN to Deutsche Post, but was quickly sold to NCC Group, which launched it in early 2015.

While .trust is technically live, it has not actually sold any domain names yet and doesn’t appear to have any registrars. The only domains in use, a mere half-dozen, all appear to belong to NCC.

Expect that to change under its new ownership.

I first speculated that .trust was for sale back in 2016, after the then-CEO of NCC utterly slagged off the new gTLD program.

But when NCC sold off its domain name assets in 2017, .trust remained with the company.

The gTLD seems to be following UNR’s chief legal officer, Jean-Christophe Vignes, who ran it under NCC before joining UNR two years ago.

I believe it’s UNR’s 25th gTLD. The company has not yet announced its plans for .trust.

Tributes as “great mentor” Marilyn Cade dies

Social media was flooded with tributes today after it was sadly announced that one of ICANN’s elder statespeople, Marilyn Cade, has died.

Cade, who participated in ICANN and the wider internet governance community for decades, was widely admired not only for her dedication to fighting her corner, but also her habit of taking the time to bring newcomers, particularly women, the young, and those from under-served regions, into the community.

Reading through tributes on social media and elsewhere today, the word “mentor” appears over and over again.

“She was incredibly dedicated and always trying to bring new people into the multi-stakeholder Internet Governance world. Every time I saw her at an ICANN meeting she would be introducing me to someone new,” wrote one community member.

“What meeting have I been to where Marilyn have not been? She was a mentor, a fighter, lots of energy, but also with attitude,” wrote another.

I myself recall being schooled, and charmed, by Cade over drinks in Mar Del Plata, when I was still a little green, over 15 years ago.

In the ICANN context, Cade was long a member of the Business Constituency of the GNSO, which she chaired for three years from 2010.

She was such a fixture at ICANN, reliably showing up to the open mic during Public Forum sessions at almost every meeting, that the simple introductory sentence “My name is Marilyn Cade” became something of a catchphrase and a source of friendly ribbing.

The phrase regularly showed up on Public Forum Bingo cards, and I once caught an ICANN technician using it to test the audio on a public webcast before the meeting went live.

But she is also fondly remembered in the wider internet governance governance community for many of the same reasons. At the Internet Governance Forum USA, she held the role of “Chief Catalyst”, a job title that perhaps speaks volumes.

The Internet Governance Forum, which kicks off its 2020 meeting online today, announced that it will hold a special session in Cade’s remembrance tomorrow, via Zoom.

“She was a staunch supporter and advocate of the IGF and Internet governance in general,” IGF wrote. “Her energy, enthusiasm and dedication, in particular to the meaningful inclusion of communities from developing countries resulted in dozens of countries establishing their National, Regional and Youth initiatives (NRIs).”

“We were blessed by her passion, her will and her immense love for IGF and the NRI community. I know many of you will be as shocked as us tonight; your pain and anguish is shared,” IGF-USA wrote.

The IGF has opened a comment forum for tributes. Details of the remembrance session can be found at the same link.