Verisign, the abusive monopolist that operates the registries for dot-com and dot-net, wants to impose the Uniform Rapid Suspension (URS) policy on dot-com and dot-net registrants, which will put valuable legacy domain names at risk via a flawed dispute resolution procedure that was designed only for low stakes “throwaway” and worthless new gTLD domains.
As you may recall if you’re a regular reader of this blog, David McAuley of Verisign submitted Individual URS Proposal #31 to the ICANN RPM PDP Working Group that is reviewing the rights protection mechanisms like the URS that apply to new gTLDs. It was submitted under the pretense that Verisign was neutral, and that it was solely for the purpose of soliciting public comment. [If they were truly “neutral”, my own URS Individual Proposal #32 would not have been blocked from being published in the Initial Report, namely that the URS be eliminated as a procedure. Most of my other Individual Proposals, which sought to protect registrants’ rights, were also blocked from publication in the Initial Report, as previously discussed.]
Today, Verisign stopped pretending they were neutral, and actively proposed that the URS become consensus policy applicable to all gTLDs, including valuable and desirable legacy TLDs like dot-com and dot-net.
Today’s RPM PDP working group call (August 25, 2020) can be reviewed via the wiki, including the Zoom recording [Pro Tip: it’s a lot more efficient to listen to the recordings at 2.0x speed; a written transcript should be available within a few days]. It’s also worth reviewing the July 1, 2020 working group call, where Individual URS Proposal #31 was also discussed.
He made his proposal on behalf of Verisign starting around 2:40 into the August 25, 2020 Zoom recording. If you read the “Chat Messages” on the right hand side of the page (which unfortunately are not synced with the recording), you can tell that this resulted in lively exchanges, with Zak Muscovitch of the Internet Commerce Association immediately calling it “out of order”.
Furthermore, Verisign (through both David McAuley and co-chair Phil Corwin) seemed to leave open the possibility that the URS could be imposed on dot-com and dot-net registrants even if there was no consensus policy, via bilateral negotiations with ICANN staff, completely circumventing the GNSO and its established role in policy-making. That would be entirely unacceptable. It’s entirely inappropriate for ICANN staff and Verisign to enter into agreements that affect the legal rights of registrants without those same registrants being able to ensure that any processes are fair, protecting all of their legal interests. Indeed, the entire purported multi-stakeholder model of ICANN would be shown to be a sham if such bilateral negotiations replaced the multi-stakeholder outcomes.
By Verisign’s “logic”, they and ICANN could bilaterally agree that URS complainants would pay a fee of $300, but it would cost a registrant $100,000 to file a defense. While that may sound “extreme” and unbalanced, that is intentional — as it shows that Verisign feels that registrants should have no say at all on any terms negotiated in their absence that affect their rights, that affected stakeholders can be shut out of solely bilateral negotiations. Verisign and ICANN staff would not be under any constraints, like they are under GSNO policy-making that must survive a multi-stakeholder consensus policy process. Any agreements with ICANN staff would only go through the motions of soliciting public feedback, would pay lip service to those public comments, and would have no impact on the deal terms negotiated behind closed doors. Indeed, that’s consistent with Verisign’s view dismissing concerns of registrants who overwhelmingly opposed the Amendment 3 to the Dot-Com Agreement.
Zak Muscovitch, Rebecca Tushnet, Jason Schaeffer, Nat Cohen and Kathy Kleiman spoke against the URS becoming consensus policy (starting from approximately 45:08 into the recording). Since I’m unfairly banished from all ICANN GNSO working groups, I was prevented from participating on today’s call, but you can read my own thoughts about this via the extensive written comments I submitted. If you listen to the full Zoom recording, you’ll note the very superficial analysis of those public comments that were submitted, by the captured working group, which ignore obvious failings of the URS.
Where do we go from here? While it appears at first glance that the working group decided to not go further on this, and instead punt it to Phase 2 of the working group (where the UDRP is to be discussed), that’s not a certain outcome. I think many backroom discussions will be taking place in the coming days, weeks and months, to try to impose the flawed URS policy on dot-com and dot-net owners, which will harm legitimate registrants.
Indeed, as hinted by Susan Payne on the working group’s call of June 25, 2020, another ICANN GNSO constitutional crisis, like the one involving the IGO PDP, might happen again:
Thanks. Phil, I am aware of that IGO position. You are too since
you were one of the chairs of that group and indeed, as a chair,
you put in a minority statement which was unprecedented. Let’s face it. So you and the other Co-Chair both disagreed with the outcome of your own working group. So that whole situation with the IGO, as you well know, was unprecedented and caused something of a constitutional crisis within the GNSO Council. [page 24 of transcript]
When Verisign (and ICANN staff for that matter) can’t get something they want through the front door, they may try instead via the back door, or through a window.
As Milton Mueller (among others) has noted in the context of WHOIS:
Here, the legitimacy and efficacy of ICANN itself is at stake. We have learned again and again that the intellectual property and business (Facebook) interests who constitute the backbone of the surveillance caucus do not participate in the ICANN process in good faith. They demand concession after concession from other stakeholder groups but in the end game, they will vote against the final result because it does not give them exactly what they wanted. Instead of negotiating and accepting a reasonable middle ground, they threaten to circumvent the policy process by shifting to national legislation or private negotiations with the ICANN board.
Domain name owners need to remain vigilant, to ensure their rights are protected.