Duplicitous ICANN Working Group Jeopardizes Domain Owners’ Rights

A duplicitous ICANN Working Group has issued a report that is open for public comments that would have severe negative consequences for domain name owners.  In particular, it would tilt the playing field in a domain name dispute (i.e. a UDRP or the URS) involving IGOs (intergovernmental organizations like the United Nations) in such a manner that it would be nearly impossible for domain owners to have their dispute decided on the merits by the courts. This would encourage consequence-free reverse domain name hijacking. Rather than accept the findings and recommendations of the prior working group, which reached a consensus, this new working group instead had tunnel vision and focused instead on ramming through an alternative recommendation (involving arbitration) for which there was an express consensus against in the prior working group!

The current deadline for comments (unless extended) is October 24, 2021. I will have extensive comments before then, but wanted this blog post on the record to encourage others to research the severe negative implications upon registrants of what this new working group is proposing. I encourage you to read my lengthy prior comments which were submitted 2 years ago when this went before the board (and the prior working group, of which I was an active member, had proceeded for 4 years before that).

I called this working group duplicitous as the report is very deceiving.  On page 17 of the report, they claim that:

The EPDP team believes that its recommendations, if approved and adopted, will facilitate access to and use of the UDRP and URS by IGOs while preserving existing registrant rights.

A person who is uninformed, and is relying upon this report to be truthful, would take that at face value. Here’s what they don’t tell you, though.

IGOs already have access to and have used the UDRP! There’s nothing to “facilitate access to” that they can’t already use. It’s implied by the above statement in the report that somehow IGOs cannot use these dispute resolution mechanisms. But, they’ve already successfully brought disputes within the current framework, as documented on pages 118-119 (including footnote 5) of the prior working group’s final report. I noted this too in Section 11 (pages 27-28) of my past public comments.

The working group claims they’re “preserving existing registrant rights” on page 17. But, 3 pages later on page 20, that statement is discredited by their very own admission that:

Relatedly, the EPDP team acknowledged that removing this requirement for IGO Complainants could prejudice a registrant’s right and ability to have an initial UDRP or URS determination reviewed judicially.

That’s a huge difference from “preserving existing registrant rights.” Registrants would be demonstrably worse off, but they openly lied about it 3 pages earlier, claiming they were “preserving registrant rights”. This is an explicit recommendation (#3 on page 10 of their report) that is entirely inconsistent with “preserving existing registrant rights.”

What makes me furious is that this working group didn’t appear to even bother to review all the past work. My own extensive comments went into depth as to the root causes of the issue (section 8, pages 18-20). Without such an understanding of the root cause (namely role reversal between plaintiffs/defendants, as discussed at length), how can one ever come up with an appropriate solution?

Rather than seriously exploring various alternative options, this working group focused on a single option. They pretend they are giving the community meaningful options to consider, but they are at best simply offering a Hobson’s choice, an illusion of choice. It’s like a restaurant offering hot dogs with relish, or hot dogs with rat poison, or hot dogs with cyanide. At worst, they are offering a false dilemma, because there are other options (filet mignon, hamburgers, lobster, salmon) that they failed to consider (including those recommended in the prior working group’s report).

My own detailed analysis found a perfectly viable and suitable solution that would allow IGO complainants to not have to agree to mutual jurisdiction, because it addressed the root causes of the problem, rather than its symptoms. One can read about that in detail in section 10 (pages  24-27) of my prior public comments.  In particular, it was a solution that I did not invent, but was instead a procedure created within a Canadian court system. I simply recognized immediately upon reading about it that it was a suitable solution that fully addressed the issues involved with IGO disputes in a fair manner. Was there any reference to that serious alternative in their report? Of course not, because they didn’t do their homework!

Another serious policy option would be the creation of an “Independent Objectorsimilar to that used for the new gTLD program, to allow IGOs to have a dispute made in the global public interest for the benefit of IGOs by that Independent Objector. In the event a registrant still sought access to the courts, it would be the Independent Objector that would go, rather than the IGOs, thereby preserving IGO immunity (but the Independent Objector would be held accountable to the courts). This would be very comparable to a case where a law firm filed a UDRP instead of an IGO. This alternative policy option would create a formal position funded by ICANN itself.

This new working group even had the audacity to assert that their proposals were “proportionate to the problem” (page 17). This is laughable, because not a single IGO has ever been dragged to court after a domain name dispute! (and recall from above, they have filed some) Not a single one, ever! The IGOs claim they need this proposal to go after “criminals”. How many actual criminals would take the UN or other IGOs to court? It’s a preposterous position to hold, but that’s what IGOs are claiming. Actual criminals hide in the shadows, and don’t want law enforcement to catch them. IGOs argue that they need a solution to a problem that just doesn’t exist! Why are IGOs pushing so hard for these changes? It’s because they want to engage in reverse domain name hijacking without any consequences. If IGOs only brought disputes against criminals, they wouldn’t need a policy change because the criminals wouldn’t ever “push back” via the courts. But, if IGOs wanted to harass and intimidate non-criminals through frivolous disputes, these just happen to be the perfect proposals, because they could never be held accountable in the court system. This is not a theoretical consideration. One of the members of this new working group, lawyer Paul McGrady of the Intellectual Property Constituency, even represented a complainant in a reverse domain name hijacking case involving the Viking.org domain name. That case was an egregious abuse of the UDRP policy to go after a widow’s domain name. Folks like Paul McGrady get a seat at the ICANN table, able to dictate to registrants as to how their rights should be diminished, whereas strong advocates for domain name registrants like myself, with a proven track record of winning in the courts, are unfairly banished from even participating in ICANN Working Groups.

Indeed, IGOs have a horrible track record of non-accountability, acting  “above the law”, as seen in  recent reports of sexual exploitation in the Congo by staff of the World Health Organization. Or the WIPO DNA scandal.  This ICANN working group proposal would turn their already abused “immunity shield” into one that is instead an “immunity sword”. As I noted in section 7 (pages 17-18) of my prior public comments, claimed immunity only matters when IGOs are not the initiators of a dispute. Under the UDRP or URS, though, the IGOs would be the initiators, in which case they have to waive that immunity, just as they would had they filed a trademark dispute, copyright dispute, patent dispute, defamation case or any other action in the real world (e.g. if someone put the words “UNESCO Bakery” on a sign above a store selling cookies, but had no association to the UN, UNESCO couldn’t compel any “arbitration”). [Indeed, the US Supreme Court has ruled that the World Bank can be sued, so even some of the past claims of IGO immunity must be taken with a grain of salt.]

Why does this obscure policy proposal matter so much? It’s only the existence of potential court action that ensures that the UDRP and URS can be prevented from deviating into an even more one-sided forum for complainants. We all know that these dispute resolution mechanisms already have a horrible track record when it comes to protecting domain owners. A classic example of this was the ADO.com domain name dispute. The 3-person UDRP panel that made the adverse decision against the domain name owner was comprised of some of the most experienced UDRP panelists in existence. There is no reason to believe that an arbitration panel created by ICANN policy wouldn’t come to a similar flawed outcome. Indeed, when panelists or arbitrators know that their decisions can’t be appealed to a greater authority, that they are the “final word”, that’s when the biased panelists can make even more outrageous decisions against domain name registrants, with impunity.

This ICANN working group would replace the courts, which have a much better track record and history, with a flawed procedure that would have no accountability and no checks and balances. Furthermore, unlike the UDRP or URS where the remedies are strictly limited (i.e. take the domain name away from the registrant, essentially), courts have much greater flexibility (e.g. they can tell a registrant to add a disclaimer in a footer, or have monetary penalties, or other remedies not involving the transfer of a valuable domain name).

The national courts have long histories of ensuring due process and fair outcomes. They have strict rules about discovery, cross-examinations, and other carefully weighed procedures. They even allow for multiple levels of appeals (for example in Canada, one could appeal to a court of appeal, and then to the Supreme Court of Canada in rare cases). This working group doesn’t respect that! They pretend that they can come up with something “just as good”.

I say: “No thanks! Given a choice, I believe most registrants would opt for the “real thing”. Instead, this working group wants to remove that choice (indeed, nothing in existing policies prevents parties to a domain name dispute from entering into voluntary binding arbitration as an alternative to courts or the UDRP; of course, few, if any, have ever made that choice! That speaks volumes.). If a bad precedent is set by this working group to adopt such one-sided recommendations against the interests of domain owners, you can be sure that the reverse domain name hijacking lobbyists within ICANN will look to apply similar one-sided changes for the benefit of regular trademark owners when the entire UDRP policy comes up for its first ever review shortly (in the coming months).

In conclusion, I hope that those who care about the rights of registrants to fairness and due process will submit comments opposing these recommendations, and instead ensuring that registrants can have their cases decided on the merits in the courts.