Month: November 2019

ICANN’s (Un)empowered Community

Now that the proverbial shit has hit the fan, with regards to the announcement that the .ORG registry has been sold to private equity, something I predicted might happen, many in the ICANN community have wondered how to undo what has been done.

There actually exists a theoretically very powerful mechanism within ICANN dubbed the “Empowered Community“, which should be perfect for such a situation. In theory, it can:

• Reject ICANN and IANA budgets, and ICANN operating and strategic plans
• Reject standard Bylaw amendments
• Reject PTI governance actions
• Approve fundamental Bylaw and Articles amendments, and asset sales
• Recall the entire ICANN Board
• Appoint and remove individual ICANN Board directors (other than the President)
• Require the ICANN Board to review its rejection of IANA Function Review (IFR),special IFR, Separation Cross-Community Working Group (SCWG) creation,and SCWG recommendation decisions
• Initiate community reconsideration request, mediation, or Independent Review Process (IRP)
• The rights of inspection and investigation

However, there’s a big problem. Like other aspects of ICANN, it too has been captured by registry operator interests or those who have current or past associations with them.  There are currently 5 designees listed, and they are:

  1. Keith Drazek, of Verisign (operator of the .COM registry)! And he is formerly of Neustar, another registry operator. You can be confident Verisign loves the .ORG contract renewal. In fact, in 2006 when I raised the alarm over tiered pricing in registry contracts,  for the .ORG, .INFO and .BIZ agreements, it was Chuck Gomes of Verisign who was one of the few voices that wrote to support such egregious proposals. Champagne bottles were likely popping at Verisign when they saw that the .ORG contract’s terms were changed in 2019 to allow uncapped fees. Keith Drazek also chairs the GNSO Council, which has unjustly banned me from participating in any GNSO working groups.
  2. Maureen Hilyard who not only was on the Pacific Islands Chapter of the Internet Society (the Internet Society owned “Public Interest Registry” which ran .ORG), she’s on the board of directors of DotAsia (another registry operator). As a member of the At Large, she drafted the comments on the renewal of the .ASIA agreement (which was open for public comments around the same time as the .ORG agreement), even showing that draft to the rest of the DotAsia Board for approval, despite the obvious conflicts of interest (see May 2, 2019 transcript of the CPWG, pp. 16-19, where I called it out. I left the At Large in disgust the following day).
  3. Stephen Deerhake, who is or was associated with the .AS country code registry operator.
  4. Manal Ismail, who is currently on the GAC, but “has also been involved in launching Egypt’s new Arabic ccTLD” (another registry operator).
  5. Axel Pawlik who recently stepped down from RIPE (which deals with IP addresses, not domain names).

Thus, it’s clear that 4 of the 5 members of the so-called “Empowered Community”, which has the power to recall the entire board and initiate community reconsideration requests (among other powers) have current or past association with registry operators. The likelihood they intervene on the community’s behalf to challenge the decisions of the ICANN Board regarding .ORG is low, given they simply don’t reflect the broad sets of stakeholders in the community.

This represents another accountability mechanism that is broken and captured, and which cannot be used by the entire community (ordinary users, domain name registrants, and other stakeholders affected by ICANN decisions) to hold ICANN accountable and reverse bad decisions.

The need for drastic action to change the composition and review the entire structure of ICANN, to eliminate this capture now, and the ability to do so in the future, should be clear.

ICANN RPM PDP Working Group Chairs Blatantly Violate Rules

The ICANN Review of all Rights Protection Mechanisms in all gTLDs Working Group  (“RPM PDP”) has an important agenda, which includes review of domain name dispute resolution procedures such as the UDRP and URS. This is the first time ICANN has ever reviewed these policies since they were adopted.

However, this important work is being undermined by working group chairs (Philip S. Corwin of Verisign, Brian Beckham, and Kathy Kleiman) who blatantly violate the working group rules.

In a prior blog post, I documented how Mr. Corwin wished to relitigate an already decided issue regarding the publication in the upcoming working group report of various URS-related proposals. The inappropriateness of this attempt to relitigate already decided issues is reinforced by the recent slides of the Pre-ICANN66 GNSO Policy Webinar of October 17, 2019, which clearly state, in relation to the RPM PDP:

How can the Council and community assist?

Challenge: Relitigating Issues
Assistance: Enforce rules against reopening closed topics (page 8)

The co-chairs don’t enforce these rules, but instead disregard them to attempt to manipulate the outcome of the PDP by relitigating issues where they wish to change the past outcome with which they disagree.

However, despite having no new facts or information to justify reopening a decided issue (as per requirements of section 3.3 of the Working Group Guidelines)

WG members should be mindful that, once input/comment periods have been closed, discussions or decisions should not be resurrected unless there is group consensus that the issue should be revisited in light of new information that has been introduced. (page 7)

the co-chairs went further and decided to blatantly violate the ICANN transparency requirements, by initiating an anonymous survey of working group members to “take the temperature of the room.” Section 4.1 of the Working Group Guidelines is unambiguous:

There is a presumption of full transparency in all WGs. (page 11, emphasis added)

An anonymous survey is a clear violation of that “full transparency” standard. Mr. Corwin must certainly be aware of this, given that the exact same transparency issue arose in the IGO PDP, where I initiated a Section 3.7 appeal to challenge a similar anonymous survey/poll, where ultimately we returned to a transparent process after my challenge. In the RPM PDP, though, where I’m unfairly banished from participating, current members appear to be unaware of the ICANN transparency requirements, or are too scared to challenge the co-chairs given how I was mistreated.

The results of that anonymous survey (if they are to be even trusted, which is a big “if”, given the numerous problems we encountered in the IGO PDP with faulty numbers in surveys) will apparently be used to attempt to summarily remove sound proposals that are deemed “unpopular”, while retaining deeply flawed proposals that are deemed “popular.” I will examine in detail the good, the bad, and the ugly of those individual proposals in future blog posts.

However, consider that a mere 27 members of the PDP responded to the survey. This is out of a total membership of 166 participants in the working group (at the time of this post). This PDP has been beset with major deficiencies in its statistical work, as many members appear to be clueless when it comes to mathematics or statistics. In the best case scenario, had those 27 members surveyed been a random representative sample of the 166 members, the margin of error calculator at SurveyMonkey tells us that (with a population size of 166, confidence level of 95%, sample size of 27), the margin of error for the responses to each question is a whopping +/- 17%.

But, we know that this is not a random sample, so the true margin of error will be much higher than +/- 17%, and will not be centered around zero. It’s a self-selected unrepresentative sample that turns out to be dominated by the Intellectual Property Constituency (IPC) members (at least 41%, which probably understates things, given a Dispute Resolution Provider also answered the survey, whose interests tend to be aligned with the IPC. Some of the folks claiming to be from the BC or CSG might also be closely aligned with the IPC, given the cobweb of interrelationships between various participants of the PDP. Full transparency (as required by the Working Group Guidelines) would reveal the positions of each member who participated, and allow one to properly audit the results.

Regardless, this group is entirely unrepresentative of the broader community (in particular, registrants like myself who are directly and greatly impacted by the policies are vastly underrepresented), which is exactly why one should be soliciting public comments on all proposals, rather than allowing a dominant group of insiders to advance their poorly thought out but “popular” (within the unrepresentative group) proposals and shut out sound but “unpopular” (within the unrepresentative group) proposals.

[To understand the systemic misuse of statistics in this PDP, see, for example (1) my post within the working group which documented problems with the Analysis Group survey, (2) further post which documented issues with an unrepresentative sample of 14 URS practitioners, where all but 1 focused on representing complainants (and which was far too small a sample to have any statistical validity), and (3) critiques of INTA study (here and here  and resulting threads).]

Indeed, section 3.2 of the Working Group Guidelines requires that the co-chairs ensure representativeness:

Ideally, a Working Group should mirror the diversity and representativeness of the community by having representatives from most, if not all, CO Stakeholder Groups and/or Constituencies. It should be noted that certain issues might be more of interest to one part of the community than others. The Chair, in cooperation with the Secretariat and ICANN Staff, is continually expected to assess whether the WG has sufficiently broad representation, and if not, which groups should be approached to encourage participation. Similarly, if the Chair is of the opinion that there is over-representation to the point of capture, he/she should inform the Chartering Organization.

The Working Group and its subteams have long been captured by the dominant IPC, and the co-chairs ignore their responsibility to guard against capture.

Lastly, consider that Mr. Corwin has posited that too many proposals represent a high “burden” on the community. However, on October 31, 2019, after completing a review of all those URS proposals, he demonstrated the falsehood of the “burden” argument, stating:

I went through all the proposals and it doesn’t take very long to fill out.

If it didn’t take him very long to analyze things, it shouldn’t take the community long to do the same and provide feedback.

In conclusion, it’s time for the manipulation of the RPM PDP by the co-chairs to end. I renew my call for them to be removed, so they can be replaced by a completely independent and neutral facilitator.