Buckridge to replace Shears on ICANN board

Chris Buckridge will replace Matthew Shears on ICANN’s board of directors next month.

The Non-Contracted Parties House of ICANN, their arses burned by an August 18 finger-wagging from ICANN chair Tripti Sinha, somehow managed to narrow down a slate of four candidates to just one by Sinha’s end-of-month deadline, despite seeming to be at a very early stage of the election process just last week.

Buckridge will fill seat 14, reserved for a member of the NCPH and one of two GNSO-picked seats.

He was one of the preferred candidates of the Non-Commercial Stakeholders Group, which along with the Commercial Stakeholders Group makes up the NCPH.

The CSG had rejected the NCSG’s original preference to reappoint Shears, who joined the board in 2017, for a third and final term.

Buckridge comes from the Regional Internet Registry world. He was with RIPE NCC from 2006 until this June in a variety of external relations roles, dealing with European governments and regulators, which seems like a pretty good qualification for an ICANN directorship.

Sinha had written to the NCPH leaders last month to complain that they had failed to pick a director, missing an April deadline, and demanded they name a name before the end of August.

UDRP comments reveal shocking lack of trust in ICANN process

Is trust in the ICANN community policy-making process on the decline? Submissions to a recent public comment period on UDRP reform certainly seem to suggest so.

Reading through the 41 comments filed, it’s clear that while many community members and constituencies have pet peeves about UDRP as it stands today, there’s a disturbing lack of trust in ICANN’s ability to reform the policy without breaking it, and very little appetite for a full-blown Policy Development Process.

It’s one area where constituencies not traditionally allied or aligned — such as domain investors and intellectual property interests — seem to be on the same page.

Both the Intellectual Property Constituency and the Internet Commerce Association are among those calling for any changes to UDRP to be drafted rapidly by subject-matter experts, rather than being opened to full community discussion.

The IPC called the UDRP “a vital and fundamental tool that has a long and proven track record”, saying it has “generally been consistently and predictably applied over the course of its more than 20-year history”. Its comment added:

it is critically important that future policy work regarding the UDRP not diminish, dilute, or otherwise undermine its effectiveness. Such policy work should be extremely deferential to and reliant on the input of experts who have actual experience working with and within the UDRP system, and resistant to efforts that would weaken the UDRP system; any such work should be based on facts and evidence of problems in need of a systematic policy-level solution, and not merely to address specific edge cases, differences of opinion, or pet issues.

That’s pretty much in line with the ICA’s comments, which state that participants in future UDRP reform talks “should be experts… individuals who have extensive personal and practical knowledge of the UDRP through direct personal involvement”.

That language — in fact several paragraphs of endorsement for an expert-driven effort — appears almost verbatim in the separately filed comments of the Business Constituency, of which the ICA is a member.

The ICA’s reluctance to endorse a full-blown PDP appears to come from the experience of the Review of all Rights Protection Mechanisms in all gTLDs PDP, or “Phase 1”, which ran from 2016 to 2020.

That working group struggled to reach consensus on even basic stuff, and at one point frictions reached a point where allegations of civility rules breaches caused warring parties to lawyer up.

“Phase 1 was lengthy, unproductive, inefficient, and an unpleasant experience for all concerned,” the ICA wrote in its comments.

“Perhaps the biggest problem with Phase 1 was that structurally it was inadvertently set up to encourage disagreements between interest groups rather than to facilitate collaboration, negotiation, and problem solving,” it said.

The BC arguable goes further in its deference to experts, calling on ICANN to invoke section 13.1 of its bylaws and drag the World Intellectual Property Organization — leading UDRP provider and drafter of the original 1999 policy — as an expert consultant.

The BC also wrote:

It is imperative that stakeholders do not unnecessarily open up a can of worms with the UDRP through destabilizing changes; rather, they should take a focused and targeted approach, only entertaining improvements and enhancements which stand a reasonable chance of gaining consensus amongst stakeholders

WIPO itself is thinking along the same lines:

If the choice is made to review the UDRP, the process should be expert-driven and scoped

To avoid undoing the UDRP’s success, ICANN needs to give serious consideration to the weight to be accorded to the various opinions expressed. So-called “community feedback” referred to, for example, in section 4 of the PSR seems to lack specific depth and can seem more ideological or anecdotal

Comments from ICANN’s contracted parties also expressed concerns about a PDP doing more harm than good.

The Registries Stakeholder Group has almost nothing to say about ICANN’s report, but the Registrars Stakeholder Group expressed concerns that “any updates could have unintended consequences resulting in a less effective UDRP”.

It uniquely brought up the issue of volunteer fatigue and ICANN’s cumbersome backlog of work, writing:

Although the RrSG recognizes that there are some minor areas for improvement in the UDRP, it is the position of the RrSG that a full policy development process (PDP) is not necessary. The UDRP was adopted in 1999, and has been utilized for over 60,000 UDRP cases. The RrSG is not aware of any major issues with the UDRP, and is concerned that any updates could have unintended consequences resulting in a less effective UDRP. Additionally, not only is there a backlog of policy recommendations waiting for ICANN Board approval or implementation, but the RrSG is also aware of substantial community volunteer fatigue even for high-priority issues.

These comments were filed in response to a public comment period on an ICANN-prepared policy status report.

Not every comment expressed skepticism about the efficacy of a PDP. Notably, the Non-Commercial Stakeholders Group — the constituency arguably most likely to upset the apple cart if a Phase 2 PDP goes ahead — appears to fully expect that such work will take place.

There were also many comments from individuals, mostly domainers, recounting their own experiences of, and reform wish-lists for, UDRP.

ICANN’s report will be revised in light of these comments and submitted to the GNSO, which will decide what to do with it.

PIR thinks 20-year domain regs are a good idea

Want to lock in the price of a .org domain for 20 years? Public Interest Registry thinks that might be a good idea.
In a blog post, head of policy Paul Diaz wrote:

PIR supports the ICANN community conducting policy work that could extend the maximum allowable registration term to 20 years. We’d look to ICANN to support the community’s policy work and, if consensus is reached, to change the longstanding ICANN policy that currently limits registration to 10 years uniformly across all registries.

Extending the maximum permitted reg/renewal to 20 years was suggested last week by ICANN’s Non-Commercial Stakeholders Group as one of a few ideas to protect registrants following PIR’s acquisition by for-profit investor Ethos Capital.
It’s worth drawing the distinction here that PIR is only saying it would support consensus policy work to introduce the new limit across all gTLDs, not just .org.
And it might be a bit of a pipe-dream anyway, at least in the short term.
ICANN’s volunteer community still languishes under its perpetual workload/burnout problems, and I doubt there’s a massive appetite to open up yet another Policy Development Process right now, particularly one with potentially significant technical and business model implications.
If a PDP were to open, why would the output limit regs to just 20 years? Why not 100? Why not make the limit arbitrary?
Diaz was less committal on NCSG’s suggestion that the Uniform Rapid Suspension process be removed from the .org contract, saying merely that PIR would comply with (not necessarily support) a consensus policy emerge removing URS from all gTLDs.
On NCSG’s demand that PIR/Ethos commit itself to freedom of speech in .org, Diaz noted that PIR has suspended 36,000 .org domains this year, almost all of which were due to technical abuse such as malware distribution, botnets and phishing.
Ten domains were suspended based on content, he wrote. Eight of those were publishing child abuse material and two were illegally selling opioids.

Non-coms want .org’s future carved in stone

ICANN’s non-commercial stakeholders have “demanded” changes to Public Interest Registry’s .org contract, to protect registrants for the next couple of decades.
The NCSG sent a letter to ICANN chair Maarten Botterman this week which stopped short of demanding, as others have, that ICANN reverse its decision to unfetter PIR from the 10%-a-year cap on prices increases it has previously been subject to.
Instead, it asks ICANN to strengthen the already existing notification obligations PIR has when it increases prices.
Today, if PIR wants to up its fee it has to give its registrars six months notice, and registrants are allowed to lock in the current pricing by renewing for up to 10 years.
NCSG wants to ensure registrants get the same kind of advance notification, either from PIR or its registrars, and for the lock-in period doubled to 20 years.
The group is concerned that, now that PIR seems set to become a for-profit venture following its $1.135 billion acquisition by Ethos Capital, there’s a risk the registry may attempt to exploit the registrants of its over 10 million .org domains.
I think it unlikely that ICANN, should it pay any attention at all to the letter, will agree to the 20-year renewal ask, given that the contract only runs for 10 years and that gTLD registries are forbidden from selling domains for periods of longer than a decade.
It would require adjustments with other parts of the contract, such as transaction reporting requirements, and would probably need some industry-wide tinkering with the EPP registry protocols too.
In some respects, the stance on pricing could be seen as a softening of NCSG’s previous position.
In April, it said that price caps should remain, but that they should be increased from the 10% a year level. If that view remains, the letter does not restate it.
The NCSG also wants the oft-criticized Uniform Rapid Suspension policy removed from the .org contract, on the basis that it was only ever supposed to be applied to gTLDs applied for in the 2012 round and not legacy gTLDs.
URS has been incorporated in all but one of the legacy gTLD contracts that have been renewed since 2012.
Finally, NCSG asks that ICANN essentially write the US First Amendment into the .org agreement, writing that it wants:

A strong commitment that the administration of the ORG domain will remain content-neutral; that is, the registry will not suspend or take away domains based on their publication of political, cultural, social, ethnic, religious, and personal content, even untrue, offensive, indecent, or unethical material, like that protected under the U.S. First Amendment.

The fear that a .org in commercial hands will be more susceptible to censorship pressures is something that the Electronic Frontier Foundation has also recently raised.
The basis for the NCSG’s demands are rooted in the original redelegation of .org from Verisign to PIR in early 2003, which came after a competitive bidding process that saw PIR beat 10 rival applicants, partly on the basis of its commitment to non-profit registrants.
You may recall I did a deep-dive into .org’s history last week that covered what was said by whom during that process.
NCSG writes:

The ORG situation is unique because of its origins in a competitive RFP that was specifically earmarked for noncommercial registrants. How ICANN handles this case, however, will have enormous precedential consequences for the stability of the DNS and ICANN’s own reputation and status. Changes in ownership are likely to be increasingly common going forward. Domain name users want stability and predictability in their basic infrastructure, which means that the obligations, service commitments and pricing cannot be adjusted dramatically as ownership changes.

NCSG’s letter has not yet been published by ICANN, but the Internet Governance Project’s Milton Mueller has copied its text in a blog post here.

Non-coms say .org price cap should be RAISED

With the entire domain name community apparently split along binary lines on the issue of price caps in .org, a third option has emerged from a surprising source.
ICANN’s Non-Commercial Stakeholders Group has suggested that price caps should remain, but that they should be raised from their current level of 10% per year.
In its comments to ICANN (pdf), NCSG wrote that it would “not object to the price cap being raised by a reasonable level”, adding:

Rather than removing price caps from the agreement entirely, these should be retained but raised by an appropriate amount. In addition, this aspect of the contract should be subject to a review midway through the contract, based on the impact of the price changes on non-profit registrants.

The NCSG does not quote a percentage or dollar value that it would consider “reasonable” or “appropriate”.
The letter notes that Public Interest Registry, which runs .org, uses some of its registration money to fund NCSG’s activities.

The NCSG disagrees with the decision to remove price cap provisions in the current .org agreement. On the one hand, we recognize the maturation of the domain name market, and the need for Public Interest Registry to capitalize on the commercial opportunities available to it. Public Interest Registry, as a non-profit entity, supports many excellent causes (including, it is worth noting, the NCSG). On the other hand, as the home for schools, community organizations, open-source projects, and other non-profit entities that are run on shoestring budgets, this registry should not necessarily operate under the same commercial realities that guide other domains. Fees should remain affordable, with domains which are priced within reach of everyone, no matter how few resources they have. Consequently, we support leaving the price cap provisions in place. We would not object to the price cap being raised by a reasonable level.

Basically, the ICANN community group nominally representing precisely .org’s target market doesn’t mind prices going up, just as long as PIR doesn’t get greedy.
It’s slightly surprising, to me, to find NCSG on the middle ground here.
There are currently over 3,250 comments on the renewal of PIR’s registry contract with ICANN — coming from domainers, individual registrants, and large and small non-profit organizations — almost all of which are firmly against the removal of price caps.
The only comments I’ve been able to find in favor of the scrapping of caps came from the Business Constituency. Intellectual property interests had no opinion.
I don’t believe the registries and registrars stakeholder groups filed consensus comments, but Tucows did file an individual comment (pdf) objecting to the removal of caps.

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.

Community calls on ICANN to cut staff spending

ICANN should look internally to cut costs before swinging the scythe at the volunteer community.
That’s a key theme to emerge from many comments filed by the community last week on ICANN’s fiscal 2019 budget, which sees spending on staff increase even as revenue stagnates and cuts are made in other key areas.
ICANN said in January that it would have to cut $5 million from its budget for the year beginning July 1, 2018, largely due to a massive downwards revision in how many new gTLD domains it expects the industry to process.
At the same time, the organization said it will increase its payroll by $7.3 million, up to $76.8 million, with headcount swelling to 425 by the end of the fiscal year and staff receiving on average a 2% pay rise.
In comments filed on the budget, many community members questioned whether this growth can be justified.
Among the most diplomatic objections came from the GNSO Council, which said:

In principle, the GNSO Council believes that growth of staff numbers should only occur under explicit justification and replacements due to staff attrition should always occur with tight scrutiny; especially in times of stagnate funding levels.

The Council added that it is not convinced that the proposed budget funds the policy work it needs to do over the coming year.
The Registrars Stakeholder Group noted the increased headcount with concern and said:

Given the overall industry environment where organizations are being asked to do more with less, we are not convinced these additional positions are needed… The RrSG is not yet calling for cuts to ICANN Staff, we believe the organization should strive to maintain headcount at FY17 Actual year-end levels.

The RrSG shared the GNSO Council’s concern that policy work, ICANN’s raison d’etre, may suffer under the proposed budget.
The At-Large Advisory Committee said it “does not support the direction taken in this budget”, adding:

Specifically we see an increase in staff headcount and personnel costs while services to the community have been brutally cut. ICANN’s credibility rests upon the multistakeholder model, and cuts that jeopardize that model should not be made unless there are no alternatives and without due recognition of the impact.
…
Staff increases may well be justified, but we must do so we a real regard to costs and benefits, and these must be effectively communicated to the community

ALAC is concerned that the budget appears to cut funding to many projects that see ICANN reach out to, and fund participation by, non-industry potential community members.
Calling for “fiscal prudence”, the Intellectual Property Constituency said it “encourages ICANN to take a hard look at personnel costs and the use of outside professional services consultants.”
The IPC is also worried that ICANN may have underestimated the costs of its contractual compliance programs.
The Non-Commercial Stakeholders Group had some strong words:

The organisation’s headcount, and personnel costs, cannot continue to grow. We feel strongly that the proposal to grow headcount by 25 [Full-Time Employees] to 425 FTE in a year where revenue has stagnated cannot be justified.
…
With 73% of the overall budget now being spent on staff and professional services, there is an urgent need to see this spend decrease over time… there is a need to stop the growth in the size of the staff, and to review staff salaries, bonuses, and fringe benefits.

NCSG added that ICANN could perhaps reduce costs by relocating some positions from its high-cost Los Angeles headquarters to the “global south”, where the cost of living is more modest.
The ccNSO Strategic and Operational Planning Standing Committee was the only commentator, that I could find, to straight-up call for a freeze in staff pay rises. While also suggesting moving staff to less costly parts of the globe, it said:

The SOPC – as well as many other community stakeholders – seem to agree that ICANN staff are paid well enough, and sometimes even above market average. Considering the current DNS industry trends and forecasts, tougher action to further limit or even abolish the annual rise in compensation would send a strong positive signal to the community.

It’s been suggested that, when asked to find areas to cut, ICANN department heads prioritized retaining their own staff, which is why we’re seeing mainly cuts to community funding.
I’ve only summarized the comments filed by formal ICANN structures here. Other individuals and organizations filing comments in their own capacity expressed similar views.
I was unable to find a comment explicitly supporting increased staffing costs. Some groups, such as the Registries Stakeholder Group, did not address the issue directly.
While each commentator has their own reasons for wanting to protect the corner of the budget they tap into most often, it’s a rare moment when every segment of the community (commercial and non-commercial, domain industry and IP interests) seem to be on pretty much the same page on an issue.

Odd-couple coalition wants URS deleted from legacy gTLD contracts

Commercial and non-commercial interests within ICANN have formed a rare alliance in order to oppose the Uniform Rapid Suspension policy in three new legacy gTLD contracts.
The groups want ICANN to delete URS from the .travel, .cat and .pro Registry Agreements, which were all renewed for 10-year terms last week.
The Business Constituency and the Non-Commercial Stakeholders Group put their names to a Request for Reconsideration filed with ICANN yesterday.
The Internet Commerce Association, a member of the BC, filed a separate RfR asking for the same thing yesterday too.
These groups believe that ICANN contracting staff are trying to create consensus policy by the back door, from the top down, by imposing URS on gTLDs that were delegated before the 2012 application round.
URS was created specifically for the new gTLD program and therefore should not apply to legacy gTLDs, they say. The BC/NCSG request states:

Our joint concern… is that a unilateral decision by ICANN contractual staff within the [Global Domains Division] to take the new gTLD registry agreement as the starting point for renewal RAs for legacy gTLDs has the effect of transforming the PDDRP [Post Delegation Dispute Resolution Process] and the URS into de facto Consensus Policies without following the procedures laid out in ICANN’s Bylaws for their creation. To be clear, we take no objection to a registry voluntarily agreeing to adopt RPMs in their contractual negotiations with ICANN.

The ICA has the same objections. It’s primarily concerned that the new contracts set a precedent that will ultimately force URS into the .com space, when Verisign’s contract comes up for renewal.
Both RfRs ask ICANN to delete the URS requirements from the just-signed .pro, .travel and .cat registry agreements.
The requesters suspect that rather than including URS as “the result of even-handed ‘bilateral negotiations'”, it was “staff insistence that the registries accept it to achieve timely registry agreement renewal.”
They want the ICANN board to demand to see the emails that were exchanged during negotiations in order to determine whether the registries were strong-armed into signing up for URS.
The BC/NCSG request is here. The ICA request is here.