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]

Continue reading “Comments to ICANN Opposing Proposed Amendment 3 to the .COM Registry Agreement”

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:

1. 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.
2. 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).
3. Stephen Deerhake, who is or was associated with the .AS country code registry operator.
4. Manal Ismail, who is currently on the GAC, but “has also been involved in launching Egypt’s new Arabic ccTLD” (another registry operator).
5. 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.

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.

One can review the transcripts of Session 1 and Session 4 where this is fully documented. For example, on page 2 of the Session 4 transcript:

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.