ICANN staff published a Policy Status Report regarding the UDRP in early March 2022, which is open for public comments until this coming Tuesday (deadline is April 19, 2022 at 23:59 UTC). Unfortunately, the staff who prepared it lie to the public, making it another worthless document for those who seek to improve the deeply-flawed domain name dispute resolution procedure. It’s clear that the fix is in, and ICANN staff are merely going through the motions in order to arrive at a predetermined outcome, one that will not address the numerous problems of the UDRP experienced by registrants.
While I will submit longer comments before the deadline, I wanted to point out how ICANN staff lied, so that others might benefit in the event they decide to submit their own comments. As I compose this blog post, 11 comments have already been submitted by others, but most of them are insubstantial and did not notice the obvious flaws in the report (perhaps because they didn’t even read the report, before submitting comments).
The top of page 11 of the report notes that their “observation period” was 2013 to 2020, and claims in footnote 11 on the same page that “Note that the observation period is determined by the availability of data.”
This is an utter lie! The UDRP began in 1999, and all the decisions are public! It is a complete falsehood for ICANN staff to claim that the data isn’t available. At FORUM (aka “NAF“), they can be found via the search here. At WIPO they’re available here. At eResolution, they’re available via Disputes.org (although occasionally the website’s down, so Archive.org might be better, i.e. using this page). They’re also available via 3rd-party analysis sites like UDRPSearch.com and UDRP.tools (e.g. search for “crew.com”, an early bad decision).
Indeed, ICANN staff knows that this data is available, because UDRP case outcomes used to even be hosted on the ICANN website! See here, here and here for examples (via Archive.org).
Why does this matter? This is the first time that the UDRP is being formally reviewed since its inception, and it’s critical that all of the data be reviewed, not a staff-selected subset. By manipulating the base year, for example, false conclusions can be arrived at regarding ‘trends’. We can see plainly that there were fewer UDRP cases at WIPO in 2013 than there were in 2012, for example. By dropping 2012 from the dataset, ICANN staff therefore manipulate any stated “trends” of increasing complaints. Furthermore, without the data from 1999 to 2012, we can’t determine how the release of new gTLDs impacted the number of complaints. Also, some of that early data is relevant to the topic of forum shopping, as noted by Professsor Michael Geist. Indeed, eResolution shut down, perhaps because registrants were winning too often if they used that provider, and so complainants were reluctant to initiate complaints with them. But, ICANN doesn’t want to even consider that important data as part of its dataset.
ICANN staff are paid exorbitant salaries, but simply don’t earn them, as they produce a report that is incomplete. They attempt to justify that incompleteness (perhaps due to their lazy nature, not wanting to do the actual work that was assigned to them) through a lie that the data isn’t available.
Producing a report that is predicated on a lie should be disqualifying in itself. The entire report should be tossed out on that basis alone. But wait — there’s more!
Not only did ICANN staff lie to the public about data availability, some of the data that they did publish is plainly wrong! Chart 5 on page 44, referenced from page 38, supposedly represents the total gTLD domain name registrations, compared with the UDRP complaints. In 2020, it claims there were more than 400 million gTLD domain names, and in 2013 there were 300 million gTLD domain names. This is obviously wrong. ICANN might be incorrectly including ccTLD registrations, to arrive at these huge numbers (which would not be appropriate, given that ICANN only develops policies for gTLDs). ICANN posts monthly registry reports where it can obtain accurate numbers. For example, the monthly reports for dot-com are here. Dot-com had 114,359,327 registrations at the end of December 2013, and there’s no way all the other gTLDs (like .net/org/etc) amounted to 186 million domains in 2013. ICANN staff do not even provide a citation for their data source, which one would expect in a scholarly endeavour worthy of peer review.
Instead, ICANN staff produce garbage, which no one else appears to have noticed. With just 2 days left in the comment period, how have obvious mistakes persisted for so long? This shows a basic truth, that very few people actually read the reports that are to be commented upon, let alone have the expertise to intelligently comment on them. ICANN staff’s gross incompetence thus has the opportunity to persist.
The quality (or lack thereof) of the rest of the ICANN staff’s Policy Status Report was consistent with my observations above. It’s as though ICANN staff couldn’t bother to take the time to do a search for “UDRP” at Google Scholar, or CircleID or any number of domain name blogs or forums, to find numerous topics of interest that were not mentioned in their report. I’ll document some of them in my own coming submission, but I simply do not have all the resources and time that ICANN staff have at their disposal (which they squandered producing a superficial report that is ultimately mere garbage).
In conclusion, ICANN staff should withdraw their report, and apologize for attempting to mislead the public. They should restart the clock on public comments after they redo this worthless report to include all the data and after reviewing all previously posted arguments and criticisms concerning the UDRP. The public should not be forced to resubmit their past comments yet again, which have not been properly summarized in this deeply flawed report.