The comment period for the Phase 1 Initial Report of the Review of All Rights Protection Mechanisms in All gTLDs Policy Development Process ends on May 4, 2020, just 7 days from now (which is not sufficient time to do a thorough analysis). I have previously written about it (see my prior blog posts here, here and here). However, it continues to be fraught with problems, including coordinated duplicative submissions.
ICANN actively mistreats stakeholders who don’t understand English when it comes to policy development. While ICANN pretends to consider the global public interest, that cannot happen when non-English fluent participants are treated unfairly as second-class citizens. This is evident in the Phase 1 Initial Report of the Review of All Rights Protection Mechanisms in All gTLDs Policy Development Process which is now open for public comment, as I’ve been writing about it for the past week (see my prior blog posts here and here).
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.