ICANN denies it’s in bed with trademark lawyers

ICANN chair Cherine Chalaby has strongly denied claims from non-commercial stakeholders that its attitude to Whois reform is “biased” in favour of “special interests” such as trademark lawyers.
In a remarkably fast reply (pdf) to a scathing October 17 letter (pdf) from the current and incoming chairs of the Non-Commercial Stakeholders Group, Chalaby dismissed several of the NCSG’s claims of bias as “not true”.
The NCSG letter paints ICANN’s efforts to bring Whois policy into line with the General Data Protection Regulation as rather an effort to allow IP owners to avoid GDPR altogether.
It even suggests that ICANN may be veering into content regulation — something it has repeatedly and specifically disavowed — by referring to how Whois may be used to combat “fake news”.
The “demonstrated intention of ICANN org has been to ensure the unrestrained and unlawful access to personal data demanded by special interest groups”, the NCSG claimed.
It believes this primarily due to ICANN’s efforts to support the idea of a “unified access model” — a way for third parties with “legitimate interests” to get access to private Whois data.
ICANN has produced a couple of high-level framework documents for such a model, and CEO Goran Marby has posted articles playing up the negative effects of an inaccessible Whois.
But Marby has since insisted that a unified access model is still very much an “if”, entirely dependent on whether the community, in the form of the Whois EPDP working group, decides there should be one.
That message was reiterated in Chalaby’s new letter to the NCSG.

The conversation on whether to adopt such a model must continue, but the outcomes of those discussions are for the community to decide. We expect that the community, using the bottom-up multistakeholder model, will take into account all stakeholders’ views and concerns.

He denied that coordinating Whois data is equivalent to content regulation, saying it falls squarely within ICANN’s mandate.
“ICANN’s mission related to ‘access to’ this data has always encompassed lawful third-party access and use, including for purposes that may not fall within ICANN’s mission,” he wrote.
The exchange of letters comes as parties on the other side of the Whois debate also lobby ICANN and its governmental advisors over the need for Whois access.

ICANN 63, Day 0 — registrars bollock DI as Whois debate kicks off

Blameless, cherubic domain industry news blogger Kevin Murphy received a bollocking from registrars over recent coverage of Whois reform yesterday, as he attended the first day of ICANN 63, here in Barcelona.
Meanwhile, the community working group tasked with designing this reform put in a 10-hour shift of face-to-face talks, attempting to craft the language that will, they hope, bring ICANN’s Whois policy into line with European privacy law.
Talks within this Expedited Policy Development Process working group have not progressed a massive amount since I last reported on the state of affairs.
They’re still talking about “purposes”. Basically, trying to write succinct statements that summarize why entities in the domain name ecosystem collect personally identifiable information from registrants.
Knowing why you’re collecting data, and explaining why to your customers, is one of the things you have to do under the General Data Protection Regulation.
Yesterday, the EPDP spent pretty much the entire day arguing over what the “purposes” of ICANN — as opposed to registries, registrars, or anyone else — are.
The group spent the first half of the day trying to agree on language explaining ICANN’s role in coordinating DNS security, and how setting policies concerning third-party access to private Whois data might play a role in that.
The main sticking point was the extent to which these third parties get a mention in the language.
Too little, and the Intellectual Property Constituency complains that their “legitimate interests” are being overlooked; too much, and the Non-Commercial Stakeholders Group cries that ICANN is overstepping its mission by turning itself into a vehicle for trademark enforcement.
The second half of the day was spent dealing with language explaining why collecting personal data helps to establish ownership of domains, which is apparently more complicated than it sounds.
Part of this debate was over whether registrants have “rights” — such as the right to use a domain name they paid for.
GoDaddy policy VP James Bladel spent a while arguing against this legally charged word, again favoring “benefits”, but appeared to eventually back down.
It was also debated whether relatively straightforward stuff such as activating a domain in the DNS by publishing name servers can be classed as the disclosure of personal data.
The group made progress reaching consensus on both sets of purposes, but damn if it wasn’t slow, painful progress.
The EPDP group will present its current state of play at a “High Interest Topic” session on Monday afternoon, but don’t expect to see its Initial Report this week as originally planned. That’s been delayed until next month.
While the EPDP slogs away, there’s a fair bit of back-channel lobbying of ICANN board and management going on.
All the players with a significant vested interest in the outcome are writing letters, conducting surveys, and so on, in order to persuade ICANN that it either does or does not need to create a “unified access model” that would allow some parties to carry on accessing private Whois data more or less the same way as they always have.
One such effort is the one I blogged about on Thursday, shortly before heading off to Barcelona, AppDetex’s claims that registrars have ignored or not sufficiently responded to some 9,000 automated requests for Whois data that its clients (notably Facebook) has spammed them with recently.
Registrars online and in-person gave me a bollocking over the post, which they said was one-sided and not in keeping with DI’s world-renowned record of fairness, impartiality and all-round awesomeness (I’m paraphrasing).
But, yeah, they may have a point.
It turns out the registrars still have serious beef with AppDetex’s bulk Whois requests, even with recent changes that attempt to scale back the volume of data demanded and provide more clarity about the nature of the request.
They suspect that AppDetex is simply trawling through zone files for strings that partially match a handful of Facebook’s trademarks, then spamming out thousands of data requests that fail to specify which trademarks are being infringed and how they are being infringed.
They further claim that AppDetex and its clients do not respond to registrars’ replies, suggesting that perhaps the aim of the game here is to gather data not about the owner of domains but about registrars’ alleged non-compliance with policy, thereby propping up the urgent case for a unified access mechanism.
AppDetex, in its defence, has been telling registrars on their private mailing list that it wants to carry on working with them to refine its notices.
The IP crowd and registrars are not the only ones fighting in the corridors, though.
The NCSG also last week shot off a strongly worded missive to ICANN, alleging that the organization has thrown in with the IP lobby, making a unified Whois access service look like a fait accompli, regardless of the outcome of the EPDP. ICANN has denied this.
Meanwhile, cybersecurity interests have also shot ICANN the results of a survey, saying they believe internet security is suffering in the wake of ICANN’s response to GDPR.
I’m going to get to both of these sets of correspondence in later posts, so please don’t give me a corridor bollocking for giving them short shrift here.
UPDATE: Minutes after posting this article, I obtained a letter Tucows has sent to ICANN, ripping into AppDetex’s “outrageous” campaign.
Tucows complains that it is being asked, in effect, to act as quality control for AppDetex’s work-in-progress software, and says the volume of spurious requests being generated would be enough for it ban AppDetex as a “vexatious reporter”.
AppDetex’s system apparently thinks “grifflnstafford.com” infringes on Facebook’s “Insta” trademark.
UPDATE 2: Fellow registrar Blacknight has also written to ICANN today to denounce AppDetex’s strategy, saying the “automated” requests it has been sending out are “not sincere”.

Registrars still not responding to private Whois requests

Registrars are still largely ignoring requests for private Whois data, according to a brand protection company working for Facebook.
AppDetex wrote to ICANN (pdf) last week to say that only 3% of some 9,000 requests it has made recently have resulted in the delivery of full Whois records.
Almost 60% of these requests were completely ignored, the company claimed, and 0.4% resulted in a request for payment.
You may recall that AppDetex back in July filed 500 Whois requests with registrars on behalf of client Facebook, with which it has a close relationship.
Then, only one registrar complied to AppDetex’s satisfaction.
Company general counsel Ben Milam now tells ICANN that more of its customers (presumably, he means not just Facebook) are using its system for automatically generating Whois requests.
He also says that these requests now contain more information, such as a contact name and number, after criticism from registrars that its demands were far too vague.
AppDetex is also no longer demanding reverse-Whois data — a list of domains owned by the same registrant, something not even possible under the old Whois system — and is limiting each of its requests to a single domain, according to Milam’s letter.
Registrars are still refusing to hand over the information, he wrote, with 11.4% of requests creating responses demanding a legal subpoena or UDRP filing.
The company reckons this behavior is in violation of ICANN’s Whois Temporary Specification.
The Temp Spec says registrars “must provide reasonable access to Personal Data in Registration Data to third parties on the basis of a legitimate interests pursued by the third party”.
The ICANN community has not yet come up with a sustainable solution for third-party access to private Whois. It’s likely to be the hottest topic at ICANN 63 in Barcelona, which kicks off this weekend.
Whois records for gTLD domains are of course, post-GDPR, redacted of all personally identifiable information, which irks big brand owners who feel they need it in order to chase cybersquatters.

Book review — “Domain Names: Strategies and Legal Aspects”

I’ve only ever read two books about the domain name industry.
The first one was Kieren McCarthy’s excellent Sex.com, the 2007 barely believable non-fictional tech-thriller that seemed to deliberately eschew inside-baseball policy talk in favor of a funny and rather gripping human narrative.
The second, Domain Names – Strategies and Legal Aspects, by Jeanette Soderlund Sause and Malin Edmar, is pretty much the diametrical opposite.
The book, published in its second edition in June, instead seems bent on explaining the complex intersection of domain names and intellectual property rights in as few words as it is able.
Coming in at a brisk 150 pages, it’s basically been engineered to funnel as much information into your brain as possible in as short a space of time as possible.
I blazed through my complimentary review copy during a three-hour train journey a couple months ago.
About half-way through, I realized I had done absolutely no background reading about the authors or publisher, and had no idea who the intended reader was.
The introduction, written for the 2014 first edition by a Swedish civil servant then on the GAC, gives the misleading impression that the book has something to say about multistakeholderism, DNS fragmentation, or new gTLD controversies.
It doesn’t. If the authors have any political opinions, you will not learn them from Domain Names.
What you will get is a competent reference work geared primarily towards IP lawyers and brand management folk who are newbies to the world of domain names.
The authors are both Swedish IP lawyers, though Soderland Sause is currently marketing VP for the .global gTLD registry.
The first half of their book deals with introducing and briefly explaining the high-level technical aspects of the DNS and the basic structure of the market, then discussing the difference between a trademark and a domain name.
An occasionally enlightening middle section of about 30 pages deals with strategies for selecting and obtaining domains, either as fresh registrations or from third parties such as cybersquatters, investors or competitors.
But the second half of the book — which deals with UDRP and related dispute resolution procedures — is evidently where the authors’, and presumably readers’, primary interest lies.
It goes into comparative depth on this topic, and I actually started to learn a few things during this section.
As a newcomer to the work, I cannot definitively say whether the new and updated content — which I infer covers developments in new gTLDs and such over the last four years — is worth the £120 upgrade for owners of the first edition.
It also seems to have gone to the printers before it was fully clear how ICANN was going to deal with GDPR; a third edition will likely be needed in a couple of years after the smoke clears.
I’d be lying if I said I had any fun reading Domain Names, but I don’t think I was supposed to.
I can see myself keeping it near my desk for occasional reference, which I think is what it’s mainly there for.
I can see IP lawyers or ICANN policy wonks also keeping copies by their desks, to be handed out to new employees as a primer on what they need to do to get their hands on the domains they want.
These juniors can then absorb the book over a weekend and keep it by their own desks for future reference, to be eventually passed on to the next n00b.
If that’s what it’s for, I think the authors have done a pretty good job of it.
Domain Names – Strategies and Legal Aspects, 2nd edition, by Jeanette Soderlund Sause and Malin Edmar, is published by Sweet & Maxwell.

Co-founder Nevett leaves Donuts

Donuts executive vice president of corporate affairs Jon Nevett has left the company, Donuts said yesterday.
He’s the last of the four co-founders of the new gTLD portfolio owner to step aside from their original roles over the last couple of years.
There’s no word on whether he’s got a new gig lined up, but given the recent acquisition of Donuts by Abry Partners, which gave the founders the opportunity to dispose of their shares, Nevett presumably will be in no rush.
Donuts said in a statement that Nevett, who led policy at the company, will continue to act as an advisor.
He follows Dan Schindler and Richard Tindal as co-founders who have since left the company.
Founding CEO Paul Stahura stepped into the executive chair role a couple of years ago to make way for Bruce Jaffe, who led the firm through its merger with Rightside and subsequent sale to Abry.
Jaffe himself will leave next month to allow former ICANN bigwig Akram Atallah into the hot seat. Former ICANN CEO Fadi Chehade is one of Abry’s lead overseers of Donuts.

The internet is still working after KSK roll

The first-ever change to the security keys at the top of the DNS tree appears to have been a non-event.
While ICANN received reports of some disruptions after last Thursday’s KSK rollover, the impact appears to have fallen short of the millions of users that had been speculated.
ICANN said yesterday:

After evaluation of the available data, there does not appear to be a significant number of Internet end-users who have been persistently and negatively impacted by the changing of the key.
The few issues that have arisen appear to have been quickly mitigated and none suggested a systemic failure that would approach the threshold (as defined by the ICANN community) to initiate a reversal of the roll. In that context, it appears the rollover to the new Key Signing Key, known as KSK 2017, has been a success.

The KSK, also sometimes called the “trust anchor”, is the ultimate cryptographic key in the chain that secures all DNSSEC queries on the internet.
October 11 was the first time it had been changed since the first version came online in 2010.
While changing the key was broadly considered sound security practice, the roll was delayed by a year after it was discovered that potentially millions of endpoints were using DNS resolvers not properly configured to use the 2017 key.
After much research, outreach and gnashing of teeth, it was decided that the risk posed by rolling the KSK now fell within acceptable parameters of collateral damage.
Experts from the likes of Google and Verisign, and one ICANN director, had urged caution and said perhaps the roll should be delayed further while more data was gathered.
But they were in the minority, ICANN went ahead anyway, and it seems their fears have not come to pass.
The KSK is now likely to be rolled regularly — it could be as little as once every five years, or more frequently.
It also gives ICANN the opportunity to eventually update the system to swap out its current RSA keys for keys based on elliptical curve cryptography, which could reduce the traffic load on the DNS as a whole.

Donuts loses to ICANN in $135 million .web auction appeal

Donuts has lost a legal appeal against ICANN in its fight to prevent Verisign running the .web gTLD.
A California court ruled yesterday that a lower court was correct when it ruled almost two years ago that Donuts had signed away its right to sue ICANN, like all gTLD applicants.
The judges ruled that the lower District Court had “properly dismissed” Donuts’ complaint, and that the covenant not to sue in the Applicant Guidebook is not “unconscionable”.
Key in their thinking was the fact that ICANN has an Independent Review Process in place that Donuts could use to continue its fight against the .web outcome.
The lawsuit was filed by Donuts subsidiary Ruby Glen in July 2016, shortly before .web was due to go to an ICANN-managed last-resort auction.
Donuts and many others believed at the time that one applicant, Nu Dot Co, was being secretly bankrolled by a player with much deeper pockets, and it wanted the auction postponed and ICANN to reveal the identity of this backer.
Donuts lost its request for a restraining order.
The auction went ahead, and NDC won with a bid of $135 million, which subsequently was confirmed to have been covertly funded by Verisign.
Donuts then quickly amended its complaint to include claims of negligence, breach of contract and other violations, as it sought $22.5 million from ICANN.
That’s roughly how much it would have received as a losing bidder had the .web contention set been settled privately and NDC still submitted a $135 million bid.
As it stands, ICANN has the $135 million.
That complaint was also rejected, with the District Court disagreeing with earlier precedent in the .africa case and saying that the covenant not to sue is enforceable.
The Appeals Court has now agreed, so unless Donuts has other legal appeals open to it, the .web fight will be settled using ICANN mechanisms.
The ruling does not mean ICANN can go ahead and delegate .web to Verisign.
The .web contention set is currently “on-hold” because Afilias, the second-place bidder in the auction, has since June been in a so-called Cooperative Engagement Process with ICANN.
CEP is a semi-formal negotiation-phase precursor to a full-blown IRP filing, which now seems much more likely to go ahead following the court’s ruling.
The appeals court ruling has not yet been published by ICANN, but it can be viewed here (pdf).
The court heard arguments from Donuts and ICANN lawyers on October 9, the same day that DI revealed that ICANN Global Domains Division president Akram Atallah had been hired by Donuts as its new CEO.
A recording of the 32-minute hearing can be viewed on YouTube here or embedded below.

ICANN says it can spend quarter-billion-dollar auction fund however it likes

ICANN can tap into its $236 million new gTLD auction fund whenever it wants, and there’s nothing the community can do about it, according to its board of directors.
The board this week said it has a “legal and fiduciary responsibility” over the money, and would be obliged to spend the cash to meet ICANN’s obligations if it ever needed to.
The statement came in a letter to the leaders of a community working group that this week published a set of preliminary recommendations (pdf) for how the money should be distributed.
The group — a cross-community working group or CCWG — laid out a few options for how the money should be administered, either by ICANN alone or in conjunction with a charitable third party, and distributed.
The money was collected from new gTLD applicants that participated in ICANN’s “last-resort” auctions to settle their contention sets. Over half of the money came from Verisign’s winning bid for .web, which is still being contested.
The CCWG said that the money should be used to:

• Benefit the development, distribution, evolution and structures/projects that support the Internet’s unique identifier systems;
• Benefit capacity building and underserved populations, and;
• Benefit the open and interoperable Internet

But the CCWG could not agree among itself whether ICANN Org or community groups such as the GNSO or GAC should be able to grab some of the cash, which is currently held in a special fund, separated from ICANN’s operational budget.
The group asked the board for its opinion, and the board responded (pdf):

ICANN maintains legal and fiduciary responsibility over the funds, and the directors and officers have an obligation to protect the organization through the use of available resources. In such a case, while ICANN would not be required to apply for the proceeds, the directors and officers would have a fiduciary obligation to use the funds to meet the organization’s obligations.

In other words: it doesn’t matter what rules you put in place, it’s our money and we’re duty-bound to spend it if we have to.
The board added, however, that ICANN Org “currently does not foresee a situation where it would need to apply for the proceeds”.
ICANN is pretty well-funded. It would have to hit hard times indeed before it needed to crack open the auction nest egg.
The board also said that supporting organizations and advisory committees would not be able to apply for funding because they’re not legal entities and wouldn’t pass the due diligence.
The CCWG’s initial report is now open for public comment until November 27.

ICANN number two Atallah is new CEO of Donuts

Akram Atallah, head of ICANN’s Global Domains Division, has quit and joined Donuts as its new CEO, DI has learned.
According to multiple sources, Atallah’s last day at ICANN was yesterday.
While neither company has announced the move yet, I gather that ICANN staff were informed by CEO Goran Marby today.
The news comes just a month after private equity firm Abry Partners, which counts former ICANN CEO Fadi Chehade among its partners, acquired Donuts for an undisclosed sum.
While the revolving door between industry and ICANN is pretty much continuous, Atallah is probably the highest-profile example since Kurt Pritz in 2012 and Peter Dengate Thrush in 2011.
As head of ICANN GDD, he was responsible for all things gTLD. Before the creation of the role, he was COO.
He was also interim president and CEO of the organization on two occasions, keeping the seat warm prior to the arrival of Chehade and Marby,
Atallah and Chehade also worked together in their pre-ICANN days in the software industry.
Donuts is of course the largest new gTLD registry in terms of TLDs, with 241 in its stable.
I’ve no word yet on where Bruce Jaffe, Donuts’ current CEO, is going, but I’ll update this post when I do.
Jaffe joined Donuts as chief a little over a year ago, replacing founder Paul Stahura.
Presumably, Jaffe was the turnaround guy and with Donuts’ acquisition secured the new owners figured it was time to hire an ops guy.
UPDATE 2022 UTC: Donuts just issued a press release in which it said that Jaffe will remain a senior adviser during the transition. It also said that Atallah starts in his new job November 12.
UPDATE October 10: ICANN said in a statement overnight that VP of DNS industry engagement Cyrus Namazi will head GDD on an interim basis, with support from CTO David Conrad.

ICANN blocks .islam after government veto

After six years, ICANN has finally killed off the applications for the new gTLDs .islam and .halal, due to objections from several governments.
It has also rejected the application for .persiangulf from the same applicant.
The decisions were made by the ICANN board of directors last Wednesday. The resolutions were published Friday night.
The board said: “it is apparent that the vast majority of the Muslim community (more than 1.6 billion members) object to the applications for .HALAL and .ISLAM.”
This actually means that the Organization of Islamic Cooperation, the 57-nation treaty group with a combined 1.6 billion nominal Muslim citizens, objected to the applications.
Several governments with large Muslim populations — including the UAE, Malaysia, Turkey, India and Iran — had also individually told ICANN on the record that they were not happy.
The view from these governments seemed to be that if there’s going to be a .islam, it should be run under the umbrella of a group such as the OIC, rather than some random tuppenny ha’penny gTLD registry.
In Christianity, the comparable gTLD .catholic is run by an affiliate of the world’s oldest pedophile ring, while .bible is being run as a propaganda tool by a group of sexually repressed, homophobic American evangelicals.
The ICANN board said its decision to reject .islam and .halal was in tune with its “core values” to protect the “public interest”.
The decision was based “on its consideration of and commitment to ICANN’s Mission and core values set forth in the Bylaws, including ensuring that this decision is in the best interest of the Internet community and that it respects the concerns raised by the majority of the community most impacted by the proposed .HALAL and .ISLAM gTLDs”.
It’s been avoiding making this decision since at least December 2013.
But it has now voted that the two applications “should not proceed”. It does not appear to have banned organizations from applying for the strings in subsequent application rounds.
The applicant for .islam and .halal was Turkey-based Asia Green IT System. It applications have been “on-hold” since the GAC issued non-consensus advice against them back in April 2013.
The OIC filed Community Objections against both gTLDs with the International Chamber of Commerce, but failed on both counts.
Having failed to see any progress, in December 2015, AGIT filed an Independent Review Process appeal against its treatment by ICANN, and won.
The November 2017 IRP decision held that the “on-hold” status was a “new policy”, unilaterally put in place by ICANN Org, that unfairly condemned AGIT’s applications to indefinite limbo.
The panel ordered ICANN to make its damn mind up one way or the other and pay about $270,000 in costs.
While rejecting the applications may not seem unreasonable, it’s an important example of a minority group of governments getting an essential veto over a gTLD.
Under the rules of the 2012 application round, consensus GAC advice against an application is enough to kill it stone dead.
But the GAC had merely said (pdf):

The GAC recognizes that Religious terms are sensitive issues. Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal. The GAC members concerned have noted that the applications for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed.

That’s non-consensus advice, which is expected to initiate bilateral engagement with ICANN’s board before a decision is made.
In the case of .persiangulf, also applied for by AGIT and also now rejected, the GAC didn’t even give non-consensus advice.
In fact, in its July 2013 Durban communique (pdf) is explicitly stated it “does not object to them proceeding”.
This appears to have been a not atypical GAC screw-up. The minutes of the Durban meeting, published months later, showed that the Gulf Cooperation Council states had in fact objected — there’s a bit of a dispute in that part of the world about whether it’s the “Persian Gulf” or “Arabian Gulf” — so the GAC would have been within its rights to publish non-consensus advice.
This all came out when the GCC filed its own IRP against ICANN, which it won.
The IRP panel in that case ordered ICANN to outright reject .persiangulf. Two years later, it now has.
While the three gTLDs in question are now going into “Will Not Proceed” status, that may not be the end of the story. One “Will Not Proceed” applicant, DotConnectAfrica, has taken ICANN to court in the US over its .africa application.