Below is a (slightly reformatted) version of the comments I submitted to ICANN today regarding the Proposed Amendment 3 to the .COM Registry Agreement. The deadline for comments is just a few hours away, so hopefully they inspire others to submit comments, if they’ve not already done so. [Note: I submitted a 2nd comment later in the day, which is below the first comment]
People are beginning to realize there is something terribly wrong with the URS policy, as discussed in part 1 and part 2 of my recent series of articles titled “URS: A Failed Domain Name Dispute Resolution Policy That ICANN Insiders Wish To Impose On More Registrants”.
One member of the working group attempted to broach the subject today on the mailing list, noting:
Here are 3 example URS determinations that seem very troubling from the public information available.
At a certain point, you have to draw a line a line (sic) and move on.
However, this is completely opposite to how the URS Individual Proposals have been treated by the co-chairs of the working group. Rather than “drawing a line” and “moving on” after decisions were made in 2018 for inclusion of all individual proposals, they relitigated that entire issue. They even violated the rules while doing so.
This demonstrates the “double standard”, that the co-chairs can go back and redo things when it suits their desires, but others are told they have to “move on” when trying to bring up legitimate topics.
The need to remove the co-chairs and replace them with an independent and neutral facilitator has never been greater.
In this multi-part series, I look at the Uniform Rapid Suspension (URS) policy, a domain name dispute resolution policy that the RPM PDP working group of ICANN is currently reviewing. In part 1, I gave an overview of the URS, and looked at 6 recent domain dispute decisions to help illustrate why it’s such a failed policy, one that belongs in the trash heap of history.
In this post, I will look at some of the individual proposals for changing the URS that may or may not be published in the Initial Report of the working group.
Currently the working group co-chairs are openly violating the working group rules, relitigating which URS proposals submitted by individual members (including myself, before I was unfairly banished from participation) should be published in the coming report that is open for public comment. Despite this, those remaining members of the working group have not challenged the proposed agenda, which would exclude proposals from the Initial Report.
I will go through the individual proposals in the same order that the working group is doing, in order to illuminate the issues involved. As there are more than 30 of them, I will cover just 7 of them in this post.
In this multi-part series, I look at the Uniform Rapid Suspension (URS) policy, a domain name dispute resolution policy that the RPM PDP working group of ICANN is currently reviewing. In a fair and unbiased review of the facts, the URS would be abandoned as a failed idea. However, in the ICANN world, that fair and unbiased review doesn’t exist, and instead ICANN insiders wish to impose that flawed policy upon even more domain name registrants.
Now that the proverbial shit has hit the fan, with regards to the announcement that the .ORG registry has been sold to private equity, something I predicted might happen, many in the ICANN community have wondered how to undo what has been done.
There actually exists a theoretically very powerful mechanism within ICANN dubbed the “Empowered Community“, which should be perfect for such a situation. In theory, it can:
• Reject ICANN and IANA budgets, and ICANN operating and strategic plans
• Reject standard Bylaw amendments
• Reject PTI governance actions
• Approve fundamental Bylaw and Articles amendments, and asset sales
• Recall the entire ICANN Board
• Appoint and remove individual ICANN Board directors (other than the President)
• Require the ICANN Board to review its rejection of IANA Function Review (IFR),special IFR, Separation Cross-Community Working Group (SCWG) creation,and SCWG recommendation decisions
• Initiate community reconsideration request, mediation, or Independent Review Process (IRP)
• The rights of inspection and investigation
However, there’s a big problem. Like other aspects of ICANN, it too has been captured by registry operator interests or those who have current or past associations with them. There are currently 5 designees listed, and they are:
- Keith Drazek, of Verisign (operator of the .COM registry)! And he is formerly of Neustar, another registry operator. You can be confident Verisign loves the .ORG contract renewal. In fact, in 2006 when I raised the alarm over tiered pricing in registry contracts, for the .ORG, .INFO and .BIZ agreements, it was Chuck Gomes of Verisign who was one of the few voices that wrote to support such egregious proposals. Champagne bottles were likely popping at Verisign when they saw that the .ORG contract’s terms were changed in 2019 to allow uncapped fees. Keith Drazek also chairs the GNSO Council, which has unjustly banned me from participating in any GNSO working groups.
- Maureen Hilyard who not only was on the Pacific Islands Chapter of the Internet Society (the Internet Society owned “Public Interest Registry” which ran .ORG), she’s on the board of directors of DotAsia (another registry operator). As a member of the At Large, she drafted the comments on the renewal of the .ASIA agreement (which was open for public comments around the same time as the .ORG agreement), even showing that draft to the rest of the DotAsia Board for approval, despite the obvious conflicts of interest (see May 2, 2019 transcript of the CPWG, pp. 16-19, where I called it out. I left the At Large in disgust the following day).
- Stephen Deerhake, who is or was associated with the .AS country code registry operator.
- Manal Ismail, who is currently on the GAC, but “has also been involved in launching Egypt’s new Arabic ccTLD” (another registry operator).
- Axel Pawlik who recently stepped down from RIPE (which deals with IP addresses, not domain names).
Thus, it’s clear that 4 of the 5 members of the so-called “Empowered Community”, which has the power to recall the entire board and initiate community reconsideration requests (among other powers) have current or past association with registry operators. The likelihood they intervene on the community’s behalf to challenge the decisions of the ICANN Board regarding .ORG is low, given they simply don’t reflect the broad sets of stakeholders in the community.
This represents another accountability mechanism that is broken and captured, and which cannot be used by the entire community (ordinary users, domain name registrants, and other stakeholders affected by ICANN decisions) to hold ICANN accountable and reverse bad decisions.
The need for drastic action to change the composition and review the entire structure of ICANN, to eliminate this capture now, and the ability to do so in the future, should be clear.
The ICANN Review of all Rights Protection Mechanisms in all gTLDs Working Group (“RPM PDP”) has an important agenda, which includes review of domain name dispute resolution procedures such as the UDRP and URS. This is the first time ICANN has ever reviewed these policies since they were adopted.
In a prior blog post, I documented how Mr. Corwin wished to relitigate an already decided issue regarding the publication in the upcoming working group report of various URS-related proposals. The inappropriateness of this attempt to relitigate already decided issues is reinforced by the recent slides of the Pre-ICANN66 GNSO Policy Webinar of October 17, 2019, which clearly state, in relation to the RPM PDP:
How can the Council and community assist?
Challenge: Relitigating Issues
Assistance: Enforce rules against reopening closed topics (page 8)
The co-chairs don’t enforce these rules, but instead disregard them to attempt to manipulate the outcome of the PDP by relitigating issues where they wish to change the past outcome with which they disagree.
However, despite having no new facts or information to justify reopening a decided issue (as per requirements of section 3.3 of the Working Group Guidelines)
WG members should be mindful that, once input/comment periods have been closed, discussions or decisions should not be resurrected unless there is group consensus that the issue should be revisited in light of new information that has been introduced. (page 7)
the co-chairs went further and decided to blatantly violate the ICANN transparency requirements, by initiating an anonymous survey of working group members to “take the temperature of the room.” Section 4.1 of the Working Group Guidelines is unambiguous:
There is a presumption of full transparency in all WGs. (page 11, emphasis added)
An anonymous survey is a clear violation of that “full transparency” standard. Mr. Corwin must certainly be aware of this, given that the exact same transparency issue arose in the IGO PDP, where I initiated a Section 3.7 appeal to challenge a similar anonymous survey/poll, where ultimately we returned to a transparent process after my challenge. In the RPM PDP, though, where I’m unfairly banished from participating, current members appear to be unaware of the ICANN transparency requirements, or are too scared to challenge the co-chairs given how I was mistreated.
The results of that anonymous survey (if they are to be even trusted, which is a big “if”, given the numerous problems we encountered in the IGO PDP with faulty numbers in surveys) will apparently be used to attempt to summarily remove sound proposals that are deemed “unpopular”, while retaining deeply flawed proposals that are deemed “popular.” I will examine in detail the good, the bad, and the ugly of those individual proposals in future blog posts.
However, consider that a mere 27 members of the PDP responded to the survey. This is out of a total membership of 166 participants in the working group (at the time of this post). This PDP has been beset with major deficiencies in its statistical work, as many members appear to be clueless when it comes to mathematics or statistics. In the best case scenario, had those 27 members surveyed been a random representative sample of the 166 members, the margin of error calculator at SurveyMonkey tells us that (with a population size of 166, confidence level of 95%, sample size of 27), the margin of error for the responses to each question is a whopping +/- 17%.
But, we know that this is not a random sample, so the true margin of error will be much higher than +/- 17%, and will not be centered around zero. It’s a self-selected unrepresentative sample that turns out to be dominated by the Intellectual Property Constituency (IPC) members (at least 41%, which probably understates things, given a Dispute Resolution Provider also answered the survey, whose interests tend to be aligned with the IPC. Some of the folks claiming to be from the BC or CSG might also be closely aligned with the IPC, given the cobweb of interrelationships between various participants of the PDP. Full transparency (as required by the Working Group Guidelines) would reveal the positions of each member who participated, and allow one to properly audit the results.
Regardless, this group is entirely unrepresentative of the broader community (in particular, registrants like myself who are directly and greatly impacted by the policies are vastly underrepresented), which is exactly why one should be soliciting public comments on all proposals, rather than allowing a dominant group of insiders to advance their poorly thought out but “popular” (within the unrepresentative group) proposals and shut out sound but “unpopular” (within the unrepresentative group) proposals.
[To understand the systemic misuse of statistics in this PDP, see, for example (1) my post within the working group which documented problems with the Analysis Group survey, (2) further post which documented issues with an unrepresentative sample of 14 URS practitioners, where all but 1 focused on representing complainants (and which was far too small a sample to have any statistical validity), and (3) critiques of INTA study (here and here and resulting threads).]
Indeed, section 3.2 of the Working Group Guidelines requires that the co-chairs ensure representativeness:
Ideally, a Working Group should mirror the diversity and representativeness of the community by having representatives from most, if not all, CO Stakeholder Groups and/or Constituencies. It should be noted that certain issues might be more of interest to one part of the community than others. The Chair, in cooperation with the Secretariat and ICANN Staff, is continually expected to assess whether the WG has sufficiently broad representation, and if not, which groups should be approached to encourage participation. Similarly, if the Chair is of the opinion that there is over-representation to the point of capture, he/she should inform the Chartering Organization.
The Working Group and its subteams have long been captured by the dominant IPC, and the co-chairs ignore their responsibility to guard against capture.
Lastly, consider that Mr. Corwin has posited that too many proposals represent a high “burden” on the community. However, on October 31, 2019, after completing a review of all those URS proposals, he demonstrated the falsehood of the “burden” argument, stating:
I went through all the proposals and it doesn’t take very long to fill out.
If it didn’t take him very long to analyze things, it shouldn’t take the community long to do the same and provide feedback.
In conclusion, it’s time for the manipulation of the RPM PDP by the co-chairs to end. I renew my call for them to be removed, so they can be replaced by a completely independent and neutral facilitator.
The Uniform Domain-Name Dispute-Resolution Policy (UDRP) permits trademark owners to bring domain name registrants before a panel to adjudicate allegations of cybersquatting. These panels have the ability to order that a domain name be transferred to the complainant if the cybersquatting claim is proven. Given this tremendous power to transfer valuable property, there is an inherent expectation that the panels will be neutral, unbiased, and will formulate their decisions with utmost care.
However, a recent UDRP decision involving a dispute over the ymobile.com domain name demonstrates that panelists are not starting from a clean slate when adjudicating cases, as one would expect from a neutral and unbiased panel. Instead, panels are using a starting point that the complainant will be the winner, demonstrating systematic bias against domain name registrants.
ICANN recently passed a resolution regarding the EBERO program. It’s worth comparing the rationale for that resolution with the reasoning used to justify the renewal of the .ORG agreement.
For the EBERO resolution, ICANN’s Board refers to competition and costs repeatedly, saying:
As a result, ICANN org identified several bidders that have a clear understanding of the work involved, and the capability and infrastructure to perform at the appropriate service levels.
Taking this step towards contracting is in fulfilment of ICANN’s mission and in the public interest to ensure that ICANN org is utilizing the right third-party providers, and to ensure that it is maximizing available resources in a cost-efficient and effective manner.
The EBEROs provide ICANN org greater geographic diversity of available service providers while achieving a more competitive pricing model. Currently, ICANN pays [REDACTED FOR NEGOTIATION PURPOSES] for three EBERO providers over five years. The selection of providers through the RFP process will result in a savings of approximately 30%, while also achieving an increased level of technical support for the EBERO program.
So, terms like “several bidders”, “cost-efficient”, “achieving a more competitive pricing model”, “savings of approximately 30%”, and fixed terms of “five years” are evident.
Contrast this with the controversial .ORG renewal where, despite the overwhelming opposition of the public, ICANN renewed the contract with an important change that eliminated caps on fees charged by the registry operator. In its analysis of the public comments, ICANN said:
Removing the price cap provisions in the .org Registry Agreement is consistent with the Core Values of ICANN org as enumerated in the Bylaws approved by the ICANN community. [p. 8]
This is hypocrisy. ICANN demonstrates that it’s fully capable of negotiating a fixed term contract for EBERO, which led to cost savings and even the replacement of one of the EBERO providers. ICANN refers to “several bidders”, highlighting the importance of seeking cost-efficient contracted parties. These were fixed term contracts that led to a cost savings of approximately 30%.
In contrast, the .ORG renewal debacle shows no respect for cost-efficiency, as it allows the registry operator the ability to raise fees by an unlimited amount. This contract also has “presumptive renewal”, meaning it’s nearly impossible to replace the registry operator, unlike the apparent terms of the EBERO. Unlike the EBERO contract which had “several bidders”, ICANN only “negotiated” with a single party (if one can even call it a good faith “negotiation”, given ICANN threw registrants under the bus with this bad deal). Presumably ICANN does not let EBERO providers change their fees at the discretion of the EBERO providers, nor does it let EBERO providers have presumptive renewal.
NameCheap is currently challenging ICANN’s unjustified renewal of .ORG on such terrible terms. I hope that this contrast with the EBERO contracts assists them in their efforts.
Today was the last day to submit comments to ICANN on the GNSO Policy Development Process on IGO-INGO Access to Curative Rights Protection Mechanisms Policy Recommendations for ICANN Board Consideration. I submitted a comment a few minutes ago, which can be read in its entirety here [PDF]. Comments by others can be viewed in the public comments archive.
As a preliminary matter, I called out ICANN for pretending that the comment periods are legitimate. Below is the first section of my 32 page submission (with formatting slightly edited for clarity on this blog):
As a preliminary matter, I note with approval and fully support the recent Reconsideration Request 19-2 filed by Namecheap, Inc. regarding the .org contract renewal, where Namecheap wrote:
The ICANN org will decide whether to accept or reject public comment, and will unliterally (sic) make its own decisions- even if that ignores the public benefit or almost unanimous feedback to the contrary, and is based upon conclusory statements not supported by evidence. This shows that the public comment process is basically a sham, and that ICANN org will do as it pleases in this and other matters. It is a concern not only for the renewal of the .org and other legacy TLD registry agreements being renewed in 2019, but an even greater concern for the upcoming renewal of the .com registry agreement- as well as other vital policy issues under consideration by ICANN now and in the future. [p. 12, emphasis added]
These are strong but thoughtful words from a highly respected company in the domain industry, whose views are shared by many. One of the synonyms for the word sham is fraud, and it’s apparent now that a fraud has been perpetrated on the public, namely ICANN deceiving the public into believing that these comment periods were legitimate opportunities for meaningful input. The reconsideration request isn’t strictly limited to the .org renewal, but directly calls into question the legitimacy of all of ICANN’s public comment periods for all of the policy issues now and in the future. ICANN should not take their reconsideration request lightly, but should instead call for a full public investigation with full opportunity for the ICANN community to weigh in on this procedural matter which is at the core of ICANN itself. Until such an investigation has concluded, I call on ICANN to suspend all public comments periods, in order to ensure the process integrity of all policymaking.
Of course, given ICANN’s comment process is a sham, this comment itself will likely be ignored, but I place it on the public record for posterity so that a higher authority will eventually hold ICANN accountable. My remaining comments are thus made “in protest” given that the process itself is currently a sham, but I place them again on the record so that fair-minded members of the public can later scrutinize ICANN’s processes, and hold them accountable.
Something very disturbing and dangerous is happening within the ICANN RPM PDP working group, that I’d like to bring to the community’s attention. A co-chair of the working group is misusing his position.
Philip S. Corwin, is Policy Counsel at Verisign (the dot-com registry operator), and one of the co-chairs in the RPM PDP working group that is chartered to review the UDRP, URS, and other rights protection mechanisms.
In October 2018 at the ICANN face-to-face meeting in Barcelona, it was decided by the working group that all individual proposals related to the Uniform Rapid Suspension (URS) dispute resolution procedure would be published and included in the initial report, in order to have the benefit of public comment on all of them.
Kathy Kleiman: … And it had been proposed by John McElwaine that rather than arguing, spending the next meeting arguing over what’s limited support and what’s adequate support, we move everything into adequate support, publish all individual proposals as individual proposals, not as working group recommendations in any way shape or form, and go home and, you know, or bring a keg and have a beer.
Indeed, an action item was even prepared in a subsequent email by ICANN staff which documented the results, stating:
Staff will update the table of individual proposals to reflect all proposals as having adequate support and updating the sections of the Initial Report in which they will appear;
Mr. Corwin even replied to that email, stating on October 23, 2018:
My recollection is that we agreed yesterday that all individual proposals would be placed in the IR for the purpose of soliciting public comment without any designation of support level. [Note to reader: IR = Initial Report]
However, in a GNSO Council meeting 9 months later, on July 18, 2019, where Mr. Corwin was providing an update on the RPM PDP’s status, long after the above working group decision, Mr. Corwin said:
I personally hope that the full working group will give some additional attention to the URS proposals because, frankly, there’s almost three dozens of them. We kind of threw in the towel back in Abu Dhabi (sic) because of internal problems in the working group.
I don’t think it’s fair or efficient to burden the community with that many proposals on URS [inaudible] which are likely to gain consensus support in the end. But we’ll see how the full working group feels about that. [page 41 of transcript]
(Obviously, Mr. Corwin meant Barcelona, not Abu Dhabi in the above statement.)
Mr. Corwin makes 2 arguments, namely (a) burdening the community and (b) internal problems in the working group.
Let’s examine them one at a time.
First, if we review the October 2018 transcripts, the argument about burdening the community was already explicitly discussed and considered at the time.
Phil Corwin: Yes, Phil Corwin for the record. Brief comment following up on Kathy, yes, I fully understand the viewpoint of those who think we’re overburdening community by putting out too many proposals that may not have a high level of support. [page 3 of the session 4 transcript]
Thus, there was no new information that hadn’t already been considered by the working group.
Mr. Corwin’s second argument alleged that at the time of the October 2018 decision, there were “internal problems in the working group”. Presumably he is trying to reference me without naming me, because then he later went on to say in the transcript:
I do want to note that since an extremely disrupted member of the working group exited –thanks to assistance from council–the work has gone much more efficiently and productively, and we thank you for stepping in and helping on that matter. It’s clear now that we no longer have that problem, how much it was slowing us down, and really showing the descent and making it difficult to reach agreement on many issues. So we have that in the past now. [page 41 of transcript]
Thus, it should be obvious that Mr. Corwin is clearly trying to reference me as the source of the alleged “disruption” and “problems” on or prior to October 2018 (when the URS process decision was made by the working group), given that I was unjustly banished from the working group as previously discussed at length on this blog (see here and here).
Mr. Corwin’s above allegations of “disruptions” and “problems” are false, and contradicted by his very own statements on the GNSO Council mailing list on October 25, 2018 (several days after the URS topic was finalized above), where he wrote:
Goran just made the statement below on the ESB dispute within the RPM WG at the conclusion of the Public Forum, which I captured from the raw transcript. The statement references the letter received on Monday from Mr. Kirikos’ attorneys, and states that he has assigned JJ to look into the issues surrounding the matter.
Goran’s statement that, “WE UNDERSTAND THAT THERE HAVE BEEN DISPUTES WITHIN THE GROUP, AND IT’S MORE OR LESS BEEN STALLED FOR THE LAST SEVEN MONTHS” is factually incorrect. Greg Shatan’s ESB complaint was filed in June, so its resolution has been stalled for four months. However, the WG has made substantial progress on its work during the past few months, including the consideration, and adoption for Initial Report public comment purposes, of 34 sub-team recommendations and 33 individual proposals for URS operational and policy modifications. However, the escalation of outside counsel involvement beyond the original ESB complaint to occurrences within WG meetings does threaten its further progress absent a satisfactory resolution.
This statement by Mr. Corwin was directly referenced in section 2 of the letter from Robin Gross to John Jeffrey of March 10, 2019.
So, there was never any disruption at all in the working group by me that in any way affected the URS topic. Mr. Corwin acknowledged that himself, citing the “substantial progress on its work during the past few months, including the consideration, and adoption for Initial Report public comment purposes, of 34 sub-team recommendations and 33 individual proposals for URS operational and policy modifications.”
Thus, both of Mr. Corwin’s arguments are spurious.
But, it gets worse. On August 2, 2019 (this past Friday), ICANN Staff circulated the agenda for the upcoming call on Wednesday, August 7, 2019, wherein item 2 is:
Brief Discussion: Process for Determining Individual URS Proposals to Include in the Initial Report
Mr. Corwin is thus actively following through and attempting to relitigate the issue (already decided in October 2018) this week.
Mr. Corwin is trying to rewrite history, in order to attempt to justify reopening a decided issue within the RPM PDP, thereby abusing his powers as Co-Chair. It’s been said that in order to be a good liar, you need to have a good memory. It’s clear that Mr. Corwin has a bad memory, as it was trivial for me to document the true facts and timeline and expose his shenanigans via his own statements.
The stakes are very high, especially now that the URS will become mandatory for the .ORG registry, newly affecting millions of domain names and registrants, instead of just new gTLDs (due to a highly controversial recent decision by ICANN that was opposed by many, as can be read in the thousands of public comments.
I submitted numerous proposals regarding the URS (see the “Individual URS Proposal Presentation Order & Schedule” tab), and I believe that Mr. Corwin, due to his personal animus towards me, seeks to now prevent those proposals from being commented upon by the public, especially now that I am unable to defend them or the future process within the working group itself.
Mr. Corwin even had the nerve to falsely state, on June 17, 2019, that:
I want to note that I think council was aware we’re having particular disciplinary problem with one member. Council took action on that after Kobe. That member decided to leave the working group and things have been much smoother and more efficient since then, and we thank council for that action. [page 27 of transcript]
I did not “decide to leave” — I was unjustly banished. This is fully documented. This was not in any way a voluntary act by me to “leave”. Perhaps it helps Mr. Corwin sleep better at night to tell the world that it was a voluntary act by me to leave, but it just isn’t so. This is another attempt at historical negationism by Mr. Corwin. Obviously there was never a disruption to the actual work of the PDP, as documented above by Mr. Corwin himself on October 25, 2018.
Mr. Corwin then went on to say on June 17, 2019, ironically in light of the above:
Relitigating issues, all I can say here is the co-chairs of the full working group and the subteam co-chairs have been more actively pushing back against attempts to reopen topics which have been thoroughly discussed and resolved, and emphasizing the need to move on and accept the outcome, either we’ve reached wide support and we’re putting something out for comment in the initial report, or we haven’t. [page 28 of transcript]
There you have it. Mr. Corwin himself, via his own words, was against others relitigating issues that have been “thoroughly discussed and resolved.”
This is not even the first time Mr. Corwin has attempted to manipulate a PDP — he attempted to manipulate the IGO PDP when he was co-chair (he later resigned), which I called him out for in the Section 3.7 appeal in that working group (see documents in PDFs at the bottom of the emails here and here). His personal animus towards me stems from that Section 3.7 appeal.
I call upon the RPM PDP members and GNSO Council to oppose Mr. Corwin and have him severely sanctioned. At a minimum, Mr. Corwin should be removed as co-chair. Indeed, I previously called for all the co-chairs of the RPM PDP to be removed and replaced by a neutral professional facilitator (see item 1(h) and section 7 of PDF attached to the email here) for the good of the work. Given the other two co-chairs appear to have permitted Mr. Corwin to put this on the agenda for Wednesday’s call, they too need to be held accountable. All members of the PDP should be put upon an even playing field, to prevent these kinds of abuses from happening again in the future.