In my prior blog post, I wrote about the public comment period for the Phase 1 Initial Report of the Review of All Rights Protection Mechanisms in All gTLDs Policy Development Process. Any comments that are submitted by the public will be analyzed by the working group members. I believe that working group has been captured, and here are some numbers to back up that belief.
ICANN has an open comment period for the Phase 1 Initial Report of the Review of All Rights Protection Mechanisms in All gTLDs Policy Development Process. It ends in just 14 days, would have a great impact on registrants’ rights and not a single person has submitted any comments to date, as of the time of this post.
To be able to comment, one has to first read the 147 page initial report. Then, one has to contemplate its contents, analyze it, and research related issues, including what its authors removed from it (see below). Then, one has to carefully submit thoughtful comments via an online form that has 192 separate sections! The document simply describing all the questions in the online form is a whopping 71 pages. To actually submit thoughtful comments would take an enormous amount of time, far more than is available.
Over 9000 comments were submitted to ICANN regarding the controversial Proposed Amendment 3 to the .COM Registry Agreement. The staff report had been due on March 6, 2020, before ICANN67 commenced (see archive.org for proof). However, ICANN has quietly changed the due date for the staff report to March 16, 2020, after ICANN67 is complete.
It is very odd that that they would extend the report’s due date, especially given that they would not extend the deadline for public comments (to ensure that the public had ample opportunity to reply to some of the statements that had been submitted by other stakeholders). ICANN has one set of standards for the public (deadlines are deadlines!), but another set of standards for their staff (deadlines are not really deadlines!).
It appears to me that this is a sign that ICANN intends to ignore the overwhelming opposition by the public to the proposed contract, and they hope to avoid immediate public scrutiny of such a biased report (just like their dot-ORG fiasco) by delaying it until after ICANN67 is complete. Had a biased staff report been delivered on schedule, they’d face difficult questions during their Public Forum. ICANN68 does not happen until late June of 2020, and by that time the ICANN Board may have already decided to rubber stamp the bad deal, making questions at ICANN68 pointless.
Given the above potential for “gaming” by ICANN staff, it’s imperative that ICANN makes no decision regarding the dot-COM agreement until the public has an opportunity to scrutinize the staff report and provide feedback to the ICANN Board. As I pointed out in my own submission (point #17), there is no requirement to complete a “negotiation” with Verisign until October or November of 2020, so ICANN should refrain from making any decisions until at least after ICANN68.
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.