Paul Keating Was Right: IGOs Have Undermined The Legitimacy Of The ICANN Model

As I noted in a blog post yesterday, ICANN’s GNSO Council is scheduled to vote next week on the final report of the new IGO working group. Their one-sided recommendations, especially the removal of the “mutual jurisdiction clause” for IGOs, would substantially prejudice the rights of domain name owners to due process in the courts.

In a letter to ICANN in 2018, prominent attorney Paul Keating, who was a member of the original IGO working group that invested 4 years on the topic and which came to very different recommendations (that actually balanced the rights of registrants and IGO), told ICANN that:

To claim that the group was captured is simply nonsense.

He also noted that:

The Mathias letter makes clear that the objective of the IGOs is to discredit the many years work of the Working Group and to undermine the bottom up policy-development process that is fundamental to the legitimacy of the ICANN model. As a diligent and fair-minded member of the Working Group who actually invested the time to examine the issues in incredible detail and reach sound recommendations, I simply cannot accept his attempt to circumvent the Policy Development Process.

Unfortunately, Paul Keating was right: IGOs have undermined the legitimacy of the ICANN model, by relitigating the issue excessively, and ignoring public input until they succumbed to the IGOs demand for removal of the “mutual jurisdiction” clause. As I’ve noted repeatedly, IGOs have been after this unreasonable policy change for two decades!

Why did this happen? One reason is that the new IGO Working Group prevented me and others from participating, and instead was overwhelmingly dominated by those who have no interest in protecting registrants’ rights. This unbalanced representation led to this extremist outcome. I documented the unbalanced participation in an innovative review of the actual number of words spoken during calls, and posted on the mailing list, with the help of Kevin Ohashi. Those charts and the analysis were submitted to the working group via the public comment period (see pp. 27-30 here). This concern was also raised by the Registrar Stakeholder Group, who stated:

Second, the RrSG notes that the EPDP does not appear to contain any representatives from the RrSG, the Registry Stakeholder Group (RySG), and the Not-for-Profit Operational Concerns Constituency (NPOC), and some of the recommendations appear to have significant impact on those constituencies or domain name registrants. The absence of certain constituencies in the EPDP should not be rationale for drafting recommendations that could impact those constituencies. The RrSG strongly recommends that for the Final Report, the EPDP must consider and incorporate the feedback from constituencies not represented on the EPDP.

Let’s take a look at the original IGO working group’s mailing list archives. The “consensus call” process took place in May 2018 and June 2018. There was vigorous and active participation by numerous members of the working group. May 2018 had 75 posts, and June 2018 had 127 posts, for example. Members were active and engaged in the working group. Phil Corwin of Verisign falsely claimed “captured”, as discussed yesterday, but look at the actual activity on the mailing list. Phil Corwin was a member of the registry constituency, but so were David Maher (of PIR) and Crystal Ondo (of Donuts, at the time). Both rejected Phil Corwin’s preferred option (arbitration), and were part of the group’s consensus (which the new working group is trying to relitigate). David Maher explained:

I support Option 1. I understand staff’s concern “that resolving a procedural question (immunity from jurisdiction) can automatically reverse a substantive panel finding, where the court has not had (and will not have) the opportunity to hear the case on its merits.” This problem will only arise if an IGO takes advantage of a UDRP or URS proceeding and then hides behind immunity. It appears from this group’s discussions that IGOs have had few or no problems in supporting their names and acronyms in court and administrative proceedings. For future proceedings, I believe it is justifiable to bar IGOs from invoking an intrinsically unfair legal maneuver.

Reg Levy of Tucows (representing herself, but obviously familiar with Registrar views) was also a participant, and was part of the consensus.

Similarly, Mike Rodenbaugh, former counsel at Yahoo! and a member of the Intellectual Property Constituency, was part of the consensus (and opposed to the arbitration proposal that Phil Corwin desired). I created an unofficial spreadsheet which summarized the input. You can see that it closely aligns with the results by ICANN Staff which were produced later, and the final report (pp. 4-6, and pp. 18-22 which showed the designations of the alternative options which were rejected).

Contrast the original working group with the sham nature of the new IGO working group. Their mailing list archives can be found here, and their phony “consensus call” took place in March 2022. As was noted by the Registrars Stakeholder Group above, there were no representatives from the registrars or registries who even participated in this working group! Contrast that with the original working group (which was open to anyone), which had wide and engaged membership. Their phony “consensus call” amounted to a single email from the chair (Chris Disspain, who dominated the discussions throughout the working group, as noted previously) claiming “full consensus”. Take a look at the mailing list — was there widespread actual public support for that designation? Of course not — they simply manipulate the working group’s processes, to consider “silence” as being “acceptance.”

Contrast this silence with the vigorous debate in the original working group, where members had to affirmatively post their positions, and many did so with their reasoning. This new working group with already unbalanced and limited participation didn’t even bother to do so, as they knew that their unengaged members couldn’t actually justify their positions. They simply “went along with whatever the chair decided”, and sat in silence. The original working group was a model for how all sides had an opportunity to participate, and all views were considered.

The new working group’s final recommendations are an insult to the intelligence of the ICANN community and to those who took the time to respond. Rather than considering the serious deleterious impact of their proposals on registrants’ rights to have the merits of their dispute decided by the courts, the new working group instead decided to double-down on their intellectual dishonesty.

On page 9, they assert that:

The inclusion of an arbitration option in the UDRP and URS does not replace, limit, or otherwise affect the availability of court proceedings to either party, or, in respect of the URS, the ability to file an appeal within the URS framework. Either party continues to have the right to file proceedings in a court, up to the point in time when an arbitration proceeding is commenced (if any).

The working group seeks to pull a fast one on the public, by making this assertion, which did not alter the actual recommendation (which eliminated the mutual jurisdiction clause for IGOs). I called this out explicitly on pages 40-41 of my own comments. I quoted their own words! For example, Jay Chapman said:

So really what the problem is as I see it, the current proposal as written today, it doesn’t provide for due process. It’s a forced process. And at best, it seems to me to be somewhat intellectually dishonest. And I think everyone kind of knows it on the call.

With the mutual jurisdiction requirement also currently sought to be disposed of, it seems to be kind of a wink-wink on the registrant being able to find relief or at least a decision on the merits I suppose by going to court. It’s kind of like the group wants to say, well, good luck with that, Mrs./Mr. Business Registrant. There won’t be any jurisdiction in the court and thus no remedy for you.

Without giving every example (I encourage folks to read my full comment submission), Paul McGrady noted:

Thanks, Chris. It was just the nerdy thing that I put into the chat that a waiver of the right to go to court, those rights that are being given up could really never fully be captured in an arbitration mechanism because the rights in Poland are different than the rights in South Africa, which are different than the rights in the U.S. or whatever. So what we would be doing is creating some sort of amalgam of protections for registrants in the arbitration process that we, I guess, think best blend all the various rights around the world. Then we would be offering that to registrants in lieu of their local protections. And as I said before, I think in the chat, the optics of that, they’re hard to get your arms around that. We don’t want ICANN be accused of overreach, for what it’s worth. Thanks.

Instead, the new working group buries the truth in a word salad of obfuscatory text.

The truth is this — the new working group was chartered to look at a very specific and limited scenario, namely:

      1. An IGO wins a UDRP.
      2. The domain name registrant decides to challenge the UDRP outcome, by going to court, as per the mutual jurisdiction clause.
      3. Instead of deciding the case on the merits, the court decides that it cannot proceed due to the claimed immunity of the IGO.

As explained in my comments, which reviewed the entire history of the UDRP, this scenario has never actually happened. The “expected outcome” was that a court should find that the “mutual jurisdiction” clause amounts to a waiver of immunity, and thus the court can proceed. To attach some numbers, I would argue that if left unchanged, the current policy would result in 95%+ of such court cases to find that the IGO has waived immunity, and the court can decide the dispute on the merits. Our work was focused on deciding what to do about the “other 5%” of cases, that would theoretically fall through the cracks, and the original working group came up with a solution to that problem (i.e. vitiate the UDRP, and put both sides in the same position as they would be had the UDRP not taken place, so that the case can then proceed in the courts, mirroring the actual legal rights of the IGOs and respondents had ICANN never created the UDRP policy in the first place; as I noted in my comments, a “Notice of Objection” system would be an even better solution, see page 15+).

But, what did the new IGO working group do instead? Rather than focus on their limited mandate, they went far beyond the scope of their charter to relitigate already decided issues. I documented this on pages 31-35 of my comments. By removing the “mutual jurisdiction” requirement for IGOs, the working group completely changes the likelihood of the scenario above. Instead of focusing on a rare scenario, and what to do about it, they actually transformed the rare scenario into the expected scenario! Without the mutual jurisdiction clause for IGOs, instead of say 95% of courts deciding the case on the merits (leaving 5% of such cases undecided on the merits), the reverse would happen! Courts would overwhelmingly find that domain owners could not proceed to a decision on the merits in a dispute with the IGOs, as there was no waiver of immunity. So, 95% of cases (instead of 5%) would (under the new working group’s proposed elimination of mutual jurisdiction) now be in a state where the court could not proceed to a decision on the merits — i.e. the cases would be thrown out on a technicality, rather than be decided on the merits.

Instead of recognizing this perversion of justice, the new working group attempts to obfuscate things by claiming that nothing prevents a domain owner from filing a case in court. This is a ridiculous and misguided statement — it’s obvious ICANN can’t control anyone’s right to take anyone to court, but what it can do (and will do, if these recommendations are adopted) is prejudice the actual outcome of what happens at that court! This working group turned an unlikely scenario into the most probable scenario, thereby harming registrants’ rights to have their disputes decided by the courts.

This is exactly like the scenario with UK and Australian registrants/registrars that ICANN created due to bad policymaking, whereby there’s no cause of action to challenge a UDRP. I warned about this in March 2022. By the logic of the new working group, there’s “no problem here”, because registrants can still file a court case (even though they will overwhelmingly have their case refused and not be decided on the merits!).

In conclusion, this new working group’s work must be rejected. It was the product of a group with unbalanced and unengaged representation (in contrast with the original working group that spent 4 years on the topic). Furthermore, their recommendations do not stand up to even the most basic scrutiny, as noted in the original comment submissions. Simply pretending that registrants can still go to court, when they’ve knowingly tilted the probabilities of what would take place at those courts, insults the intelligence of the community.