ICANN RPM PDP Phase 1 Comment Period is another sham, part 4

The comment period for the Phase 1 Initial Report of the Review of All Rights Protection Mechanisms in All gTLDs Policy Development Process ends on May 4, 2020, just 7 days from now (which is not sufficient time to do a thorough analysis). I have previously written about it (see my prior blog posts here, here and here). However, it continues to be fraught with problems, including coordinated duplicative submissions.

At the time this article was posted, 9 comments have been attempted to be submitted. The submission form allows one to save progress, so some (like my own) are still in progress (I’ve completed about 20% of the form’s multiple pages of questions, which took significant time, over 20 hours to date of background research; it would take dozens of additional hours to complete the rest).

But, some submissions are identical and appear to have been coordinated.

For example, with timestamps of 4/27/2020 6:08:24, 6:08:25 and 6:08:34, there were 3 separate submissions (in rows 8, 9 and 10 of the spreadsheet) made within seconds of each other from “Masson”, “Muller Anais” and “Alice Gensse”, all from Hermes International, the famous luxury brand company. If one scrolls through the cells of the spreadsheet (pro tip: one can resize the top cell, above the column labels, to more easily read longer responses in a single cell), one can see the responses. Scrolling up and down within a column allows one to see responses to the same question from different individuals. For these 3 individuals, most (if not all) of the responses are identical. For example, cells DV8, DV9 and DV10 all contain the identical text:

Cybersquatting, and general IP rights infringements, are too much of an issue not to put all our effort to tackle it. That’s why, there should be no tolerance regarding abusive and trivialized behaviors, such as stated in the proposal: “Habitual cybersquatting is a significant problem and registrants who have lost multiple cases or have been found to target numerous domain names are clearly not changing their activities based on such losses”. Therefore, we urge the Working group to take this proposal very seriously.

responding to the extremist individual URS Proposal #15 that I’ve written about previously, that seeks to blacklist an entire portfolio of a domain name registrant (including domains that are not in dispute, and have never been involved in cybersquatting), after losing 2 domain disputes. The same trademark-maximalist responses can be seen in responses to other questions by this group of individuals from Hermes. Rather than being counted once, they want to be counted 3 times, to skew and manipulate the outcome in their favour.

Richard Hill is another person responding to the public comment period (in row 6), directly below Renee Fosse in row 5 of Forum (which changed its name from National Arbitration Forum), one of the URS and UDRP providers. Mr. Hill is a very frequent panelist for domain disputes (with 706 decisions, according to the “Panelist Research” tab at UDRP.tools, most in the past 5 years). For UDRP and URS panelists and providers, domain disputes are a business, for which they earn income. They have a financial interest in seeing that income stream be protected and even grow. But, take a look at the comments of Mr. Hill. Most, if not all, of the responses are supporting those of Ms. Fossen (many of his cases are via Forum). Rather than simply copying/pasting duplicative answers like the folks at Hermes, Mr. Hill simply wrote:

I agree with the comment submitted by Renee Fossen on behalf of Forum

repeatedly. Where Ms. Fossen answered “Support Recommendation as written”, he would do the same. Where Ms. Fossen answered “Support Recommendation concept with minor change”, he would do the same Where Ms. Fossen answered “No”, he would do the same. Where she would answer “Significant change required”, he just happened to do the same. What are the odds that they would have identical views on nearly every single issue?

As I’ve noted in prior posts, this working group has been captured, and now the same games are being played out in the comment period. Indeed, Mr. Phil Corwin of Verisign, one of the three co-chairs, appears to have setup this comment period for failure and manipulation, saying on March 11, 2020 that (on page 22):

Having been through comment processes for almost 15 years with ICANN, and having drafted comments before in that former freeform style, where you’re just given a report and asked to comment in any way you wish, my personal view is that this new public comment document is an improvement overall—that whatever’s lost in distinct individuality of comments is more than gained by particularly giving staff a very quick and easy way to characterize community reaction to recommendations proposals.

When that part is essentially in multiple choice, where you have to say “support,” or “support with minor changes,” or “support with significant changes,” or “oppose,” it’s going to give us a much more reliable statistical picture of the level of consensus or opposition within the community. And then, of course, anyone can add as much additional comment as they want on any recommendation, any proposal, and any of the questions put out to the community.

As someone who has a quantitative background, and who has repeatedly brought to light the major statistical problems in that working group (for example, here, here and here, to cite a few specific examples), I can say with absolute certainty that it does not provide any reliable “statistical picture” on the level of consensus or opposition within the community. This is a self-selected comment period, and is not a random representative sample of the broader community. Furthermore, as we can see from the above examples I cited, people are actively gaming the system with multiple duplicative responses to add further “votes” to their preferred outcome.  This is why survey-makers spend considerable time and resources to get a representative sample of responses, one that is of statistically significant size (e.g. thousands of responses). None of that is even being attempted here, yet Mr. Corwin pretends that this is what they’re going to achieve. Indeed, the true views of Mr. Corwin become evident further down in the same transcript (on page 26), where he states:

This was a point I was going to make personally, that it’s a proposal concocted to counter the spam-like public comments that ICANN occasionally receives. I think recently we’ve seen more than occasional comments without significant content. So, this type of form can keep it out but it does act as some type of filter against folks just emoting and not being specific in their responses.

It mirrors the position Verisign took with regards to the outpouring of opposition to the .com contract. Any widespread and informed public opposition is dismissed as “spam”, even if it is from numerous (3,000+ or 9,000+ in the case of the .org and .com comment periods) disparate and individually-informed submissions. Instead, Verisign would rather listen to the position of a small group of “insiders” who are already over-represented in policy-work but support their own goals. That is the very essence of regulatory capture.

Multiple people within the working group itself voiced opposition to the online forms last week (when the deadline was extended), with Claudio Di Gangi (an IP lawyer, to boot!) saying:

Sometimes in the process of iteration and working towards making improvements, the risk arises of missing the forest for the trees. On that basis, I think it would be prudent for ICANN org to take a slight pause and consider the impact of this new format on the users of the system. In particular, with regards to the unaffiliated internet user, registrant, company, organization, etc. who fall under ICANN’s public interest remit, but who do not have the resources or time to get more involved, attend phone calls, meetings, and collaborate with other participants to lighten the load. For these stakeholders, the public comment process is their sole method of participation, and I think it would be wise for ICANN to have as the highest priority making the submission of public comments as simple as possible. Otherwise, the benefits, e.g. saving resources and generating efficiencies, may be outweighed by a reduction in participation, transparency and/or accountability.

I’m often on the opposite side of Mr. Di Gangi on policy issues, but his position above is something I can generally agree with (he is much more diplomatic than I would be). Of course, the working group co-chairs ignored such well-reasoned statements, and instead simply added a puny 1 week to the prior deadline date, ignoring the severe problems that exist not just with the comment period process, but with the working group itself.

In conclusion, the entire PDP is broken, and this post simply highlights yet another example of how it is being actively manipulated to achieve a predetermined outcome. It’s a sham. It’s time to take a step back, pause, and suspend the entire PDP’s work pending a truly independent review of the serious procedural and “capture” issues that undermine the validity of all its work.