Category: domain names

As we’ve noted in our recent blog posts, here, here, here and here, the ICANN GNSO Council intends to vote (on Thursday May 19, 2022, tomorow!) on a controversial Final Report which would severely harm the rights of domain name registrants to judicial review of an adverse UDRP decision. This is in sharp contrast to the charter of that working group, which required that the rights to judicial review be preserved.

In my review of the call transcripts, it’s clear that the Chair of the Working Group, Chris Disspain, knew and understood that they had to preserve those rights to judicial review. In fact, on the January 10, 2022 working group call, here’s what he had to say:

And the bottom line is, irrespective of all of that, that our charter, our instructions from the GNSO Council very clearly states that our solutions should not affect the rights and ability of registrants to quality judicial proceedings, a court of competent jurisdiction, whether following a UDRP or URS case or otherwise. [pp.38-39]

Boom! Yet, as discussed in prior blog posts, that very standard that they were entrusted to meet was simply not met. Rights to judicial review are severely harmed, and not preserved. “Quality judicial proceedings” and a “court of competent jurisdiction” are sacred – yet this final report, if adopted, would effectively be taking those rights away from registrants.

Chris Disspain went on! On page 39, he continued:

So I would argue that we would be significantly challenged on scope, I suspect, if we were to make a recommendation that required an IGO to go to court and to not have a substantive hearing on the merits, which of course is what would happen if IGOs were successful in claiming their immunities.

That is why yesterday’s “friendly amendment” is a sham and an obscene document.

By exempting IGOs from the mutual jurisdiction clause, they enhanced the ability of IGOs to successfully assert immunity (as the mutual jurisdiction clause would usually be interpreted as a waiver of immunity). They are in violation of their charter. They would and should be “significantly challenged on scope.” There would be no “substantive hearing on the merits” at courts. As the Final Report itself concedes:

Conversely, the EPDP team acknowledged that removing this requirement for IGO Complainants could prejudice a registrant’s right and ability to have an initial UDRP or URS determination reviewed judicially, in that a successful assertion of immunity by an IGO means that the court in question will decline to proceed with the case. [pp. 23-24]

They “prejudiced” the rights to judicial review – the working group failed to preserve them.

As the Internet Commerce Association argued in their own comment submission:

Preliminary Recommendation #3 – exempting IGOs from the usual requirement of agreeing to a Mutual Jurisdiction for a challenge to a UDRP transfer without guaranteeing the right of a registrant to have its case heard on the merits – is unjustified and should not be
accepted by the GNSO. By exempting IGOs from agreeing to the Mutual Jurisdiction requirement, registrants are left with the very real possibility that a national court will refuse to assume jurisdiction in a post-UDRP action to overturn a UDRP transfer order; leaving the registrant without any meaningful redress or ability to have its case heard on the merits.

The proposal (Option 1 under Recommendation #4) to eliminate all substantive recourse for errant UDRP and URS decisions in the event that an IGO successfully avoids a court proceeding by asserting immunity after ICANN has stripped away the Mutual Jurisdiction requirement, is unconscionable and effectively repudiates the GNSO’s mandate to the EPDP which inter alia, requires that any policy option preserve registrants’ rights to judicial review. Such right to judicial review can only entail a substantive review, not merely an opportunity to receive a dismissal. [page 1] [NB: the recommendations were renumbered in the final report]

By ignoring this, not only did the working group fail to listen to the affected stakeholders. They also, by Chris Disspain’s own words, violated their charter.

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I had planned to write other blog posts in advance of tomorrow’s GNSO Council, about how the review of public comments was a sham, looking at how the Public Comment Review Tool paid mere lip service to serious comments. [e.g. look at how people would submit very lengthy comments, but instead of actually digesting and considering the very valid points, the working group would simply label them “CONCERNS” and  “DIVERGENCE”! They pretended to review the public comments thoroughly, but would actually simply skim over them, with no debate, analysis or discussion most of the time, even to novel arguments. No attempt to actually refute the valid points raised by people. If I had more time, I would give numerous examples, but here are some points I wish to note.

I gave 20 reasons against arbitration, and they were ignored. (see pages 43-48 of my comments) Contrast those with pages 35-38 of the final report’s recommendations, or anywhere else they mentioned arbitration.  Basics like open justice (the open court principle) are ignored, as they propose hiding the arbitration filings, and only making the decision public.

Furthermore, I addressed the “Policy Impact Analysis” on page 51 of my comments. On page 17 of their February 14, 2022 call transcript, they claimed that those were important comments, and that they’d go back to them!

“CHRIS DISSPAIN: ….One, can you make sure that you refer us back to this particular comment when we deal with that section?”

I went through all the transcripts (and Zoom calls) and did not find any evidence that they ever went back to it. None of their proposed metrics would ever find that this policy had failed! (this was also a major concern of mine with the New gTLD program) In other words, by failing to provide any metrics which could show that their proposals had a negative impact on registrants, there’d be no way to challenge this policy in the future.

They could have limited the initial impact of a proposed policy change by grandfathering existing domain name registrations, or limiting it to new gTLDs, as per pages 49-50 of my public comments. This was ignored. Opt-out was ignored. The “Notice of Objection” system was mistakenly rejected, because the group was captured. It was a fair solution that really should have had a serious look by fair-minded individuals (not allowing the IGOs to simply veto it, because they thought they could get away with exempting themselves from mutual jurisdiction).

Instead of seriously analyzing feedback, they made jokes. E.g. in response to a serious analysis of unbalanced participation (pages 27-30 of my comments), which showed that Chris Disspain spoke 49.8% of the words on calls (excluding staff), as well as an entire history of the UDRP (and explanation of why the mutual jurisdiction clause was added) the Chair’s only remark was:

CHRIS DISSPAIN: I’m very disappointed. I was going for 50%

(see page 16 of February 14, 2022 transcript) This illustrates the lack of maturity and lack of seriousness with which the working group conducted its review of the public comments. If you were not agreeing with the initial report, your concerns were laughed off.

In conclusion, I wish to emphasize again that the working group failed to deliver what it was supposed to deliver, namely a set of recommendations that preserved the rights of registrants to judicial review. As such, this report should be entirely rejected. I can give ample evidence of all the process flaws that made them lose their way. But, in the end, it’s the actual recommendations that are the deliverables, and those deliverables simply fail to deliver what was promised.

 

As we’ve noted in our recent blog posts, here, here, here and here, the ICANN GNSO Council intends to vote (on Thursday May 19, 2022, 2 days from now)  on a controversial Final Report which would severely harm the rights of domain name registrants to judicial review of an adverse UDRP decision. This is in sharp contrast to the charter of that working group, which required that the rights to judicial review be preserved.

In a shocking new development, today the ICANN Registrars Stakeholder Group proposed a “friendly amendment” saying:

We believe it is important to have it on record (in the motion) that there are scope and principles stipulated by the Council at the outset and against which Council has evaluated and determined that the recommendations in the Final Report are consistent with such scope and principles.

The email from Greg DiBiase of Amazon, didn’t appear to have an attachment with that kind of friendly amendment (the DOCX attachment at the bottom seems to be the original motion, not an amended version).

[Note on May 18: after additional review (in ChromeOS it was invisible text in the browser’s viewer), by downloading the attachment and loading it in Google Docs, the text is similar to the above, in item 10. i.e.

10. The GNSO Council has determined that the five (5) final EPDP recommendations in the EPDP team’s Final Report are consistent with the scope and principles set out in the Addendum to the RPMs PDP Charter and the subsequent EPDP Charter.

Regardless, it appears that people now realize that in fact the final report is deficient, as we’ve argued all along, as its recommendations do not actually preserve judicial review. As such, its recommendations are out of scope.

This obscene “friendly amendment” appears to be some form of damage control, or perhaps something that can be used to gaslight opponents of the final report, or just the worst form of historical revisionism one can imagine.

They’re trying to move the goalposts, after the game has already been played. It’s clear that the Final Report’s recommendations are outside the scope of the actual standard set by the GNSO Council before the working group began.  That means the report has to be rejected in its entirety.

This is particularly obscene given that the first IGO working group (the one that I participated on) was falsely accused of going beyond its scope (see my comments here, including pages 5-10) , and the GNSO Council took unprecedented action to undermine its consensus findings.

Elsa Saade made that point to the GNSO Council in 2019, when the first IGO working group’s final report was at GNSO Council for review, saying:

I was saying that I don’t think that we’re being completely honest with ourselves and the reasons why we are not taking on the full recommendations that the group had consensus on. And if we, I mean, I personally would vote to have all of them go through and then see how the Board would take it forward, but in terms of – because especially because if we do not do that we’re setting a precedence for the GNSO Council which had not been set before I’d say in terms of a back channel, I don’t – I’m going to dare say but a back channel sabotage in a way. I’m putting it out there on the record in my own personal capacity here. So that’s why I think we should take it on fully and take this – have this go through fully as a full recommendation set or list. [page 45 of transcript]

That truth still resonates. Back channel sabotage is what blocked the first working group’s thoughtful final report. Dishonest conduct, including this obscene “friendly amendment” which attempts to rewrite history, should not be rewarded.

The rules of the GNSO Council permit the vote on the IGO final report to be deferred by 1 meeting, as per page 8 of their operating procedures which state:

At the request of any Council member, for any reason, consideration of the Final Report may be postponed for no more than one (1) meeting, provided that such Council member details the rationale for such a postponement.

I suggest that Thursday’s vote be postponed until the June 2022 ICANN meeting, so that the full community can consider and thoroughly review the implications of this Final Report, one which would severely harm the rights of domain name registrants to judicial review (and which is thus out of scope of its charter).

Rather than attempt to win the hearts and minds of the community, through hard work and sound analysis, to form a true consensus, it’s clear that those who wish to take away domain name registrants’ rights are prepared to instead go down the path of dishonesty.

Any “friendly amendment” that tries to claim that this report is actually in scope would simply be a blatant lie, an attempt to say that “black is white” or “up is down”. It would further delegitimize ICANN and its leadership (including GNSO Council members) as fair-minded people can easily see the actual truth and history for themselves.

Next week (May 19, 2022, see agenda item #5), the ICANN GNSO Council intends to vote on the new IGO Working Group’s Final Report. However, that report fails at the most basic level, as per the instructions from GNSO Council that initiated that new working group.

I’ve written about this topic extensively, including posts last Thursday and Friday. My most detailed comments were submitted to ICANN in its public comment period. But, let’s go to the most basic problem with the report.

Page 4 noted that the work was initiated to see:

“whether an appropriate policy solution can be developed that is generally consistent with [the first four recommendations from the GNSO’s IGO-INGO Access to Curative Rights PDP] and:

a.accounts for the possibility that an IGO may enjoy jurisdictional immunity in certain circumstances;

b. does not affect the right and ability of registrants to file judicial proceedings in a court of competent jurisdiction;

c.preserves registrants’ rights to judicial review of an initial [Uniform Domain Name Dispute Resolution Policy or Uniform Rapid Suspension decision; and

d. recognizes that the existence and scope of IGO jurisdictional immunity in any particular situation is a legal issue to be determined by a court of competent jurisdiction.”

Note in particular “c” that they must PRESERVE registrants’ rights to judicial review. But, their recommendations do NOT do this, when they exempt IGOs from the mutual jurisdiction clause. That was their “Recommendation #2: Exemption from Submission to “Mutual Jurisdiction”” on page 12 of the report.

A careful reading of the report shows that they actually sneaked in the word “seek” in the summary of that recommendation, i.e. they wrote:

“2.1.2. Recommendations to Address IGO Immunities While Preserving a Registrant’s Right to Seek Review of a UDRP or URS Decision Issued Against It” [emphasis added]

It’s not enough to simply “seek” that review – one must actually have the review itself in the courts! And they removed the word “judicial” — it’s not just a “review” that matters, it’s a judicial review that must be allowed (in the courts).

Notice that their “explanatory text” on page 13 actually OMITS the above section (c) wording! They wrote:

“…recommended policy solution must [account] for the possibility that an IGO may enjoy jurisdictional immunity in certain circumstances; … not affect the right and ability of registrants to file judicial proceedings in a court of competent jurisdiction whether following a UDRP/URS case or otherwise; and … [recognize] that the existence and scope of IGO jurisdictional immunity in any particular situation is a legal issue to be determined by a court of competent jurisdiction”.

i.e. they took the wording of point “b” above, but didn’t quote “c”, namely:

c.preserves registrants’ rights to judicial review of an initial [Uniform Domain Name Dispute Resolution Policy or Uniform Rapid Suspension decision

This is the dishonesty I’ve spoken about repeatedly about this working group. The final report literally hides the most important standard of any recommendation, a standard that this working group did not meet.

As I noted in Friday’s post, the working group members themselves acknowledged during their deliberations that registrants’ rights are not being preserved!

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.

The final report tries to dance around this deficiency through misdirection! They “emphasize” on page 9 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).

But, that’s missing the point, and misleading people! It’s the exclusion of the mutual jurisdiction clause that has the effect of not preserving registrant’s rights to judicial review. ICANN has no ability to stop anyone from filing a court proceeding. What matters is what happens in the courts after the case is filed, and whether the proposed changes have an impact on things (they obviously would have a severe negative impact on registrants).

They falsely claim on page 19 that they believe they’re “preserving existing registrant rights.” This concern was raised by many in the public comment period, not just myself. But, then they misstate and misrepresent the objections of the public, on page 25:

The Public Comments demonstrated strong concerns, particularly amongst individual commentators, regarding the EPDP team’s proposal to exempt IGO Complainants from the requirement to agree to submit to a Mutual Jurisdiction, to the extent that it would result in limitations on the registrant’s ability to file court proceedings against an IGO or in compelling a registrant to go to arbitration. These commentators emphasized that the outcomes of the EPDP should not reduce or otherwise adversely affect the rights of registrants.

They emphasized that folks were concerned about the “registrant’s ability to file court proceedings” — that’s not the issue; instead, what matters is what would happen at court after the case got filed (i.e. it would be tossed out on a technicality, if IGOs asserted immunity, which they certainly would do if they were exempted from the mutual jurisdiction clause).

They added the ambiguous text “These commentators emphasized that the outcomes of the EPDP should not reduce or otherwise adversely affect the rights of registrants.”, but then didn’t address those actual concerns, i.e. the prejudicial impact of what would happen once you got to court.

To fake people out, then the final report didn’t actually CHANGE the substance of the recommendation (i.e. final report vs. initial report). On page 25, they tried to pretend that they did:

Clarify that its proposal to exempt an IGO Complainant (as defined) from the requirement to agree to submit to a Mutual Jurisdiction does not alter or limit a registrant’s ability and right to initiate court proceedings;

But, that is simply “explanatory text” that didn’t actually change the recommendation itself! And furthermore, that explanatory text is misleading, because it was never in dispute that registrants could “initiate court proceedings” — what people were concerned about was what would  happen at court once you got there.

By removing the mutual jurisdiction clause for IGOs, the expected outcome at court would be vastly different, as everyone knows (that’s why the IGOs have been fighting this issue for 2 decades, as they don’t want the courts to ever be able to make a decision on the merits, even when they’ve initiated the overall dispute by filing a UDRP in the first place). Registrants’ rights would be severely prejudiced at court, not preserved. Even the working group itself acknowledge this prejudicial impact, on pages 23-24:

Conversely, the EPDP team acknowledged that removing this requirement for IGO Complainants could prejudice a registrant’s right and ability to have an initial UDRP or URS determination reviewed judicially, in that a successful assertion of immunity by an IGO means that the court in question will decline to proceed with the case.

That should have been the end of the working group’s attempt to keep the exemption from the mutual jurisdiction recommendation!

Instead, the working group tried to redirect people’s attention to the language of item (b) above, namely:

“does not affect the right and ability of registrants to file judicial proceedings in a court of competent jurisdiction;” (emphasis added)

i.e. but no one really cares about just the ability to “file” a case. ICANN has no power to stop anyone from filing a case (emphasis above on “file“). What matters is item (c) above:

c.preserves registrants’ rights to judicial review of an initial [Uniform Domain Name Dispute Resolution Policy or Uniform Rapid Suspension decision; (emphasis added)

Which the working group simply ignored. There would obviously be no actual “judicial review” at all, as the case would be tossed out on a technicality, as IGOs successfully assert immunity (once they’re exempted from the mutual jurisdiction clause).  Again, registrants’ rights would be severely prejudiced at court, not preserved. That’s unacceptable, and doesn’t match what GNSO Council told the working group to do.

Why is a decision in court so important? It was explained in depth in the detailed public comments, or in a much briefer and older article by Wendy Seltzer. Instead, this working group believes that it’s “enough” to allow someone who disagrees with the outcome of an ICANN-designed process (UDRP) to simply go to yet another ICANN-designed process (an “arbitration” as an alternative to the courts). ICANN’s UDRP has been criticized as being one-sided in favour of complainants for 20+ years, and now they believe they can be trusted to come up with something superior to the courts? That’s nonsense. The fact that working groups and processes have been manipulated to even get to this stage shows that ICANN doesn’t work, and that court processes are essential to ensure justice.

Remember, not a single IGO has ever had a UDRP appealed to court! Why would an actual criminal fraudster engaged in cybersquatting, who IGOs pretend to be after, ever expose themselves? IGOs truly want to prevent legitimate registrants who have faced an injustice at the UDRP (e.g. the ADO.com or IMI.com disputes) from obtaining justice through their national courts.

In conclusion, this final report is a sham, an obscene attempt to deprive domain name registrants of basic and sacred rights that they’ve had since the inception of the UDRP. It is a demonstration of what happens when policy-making is dominated by a powerful and unrepresentative “few”, at the expense of the underrepresented “many”. It must be opposed to ensure justice and due process for domain name owners.

ICANN staff published a  Policy Status Report regarding the UDRP in early March 2022, which is open for public comments until this coming Tuesday (deadline is April 19, 2022 at 23:59 UTC, less than 24 hours from now).

As noted in Sunday’s blog post, ICANN staff lied to the public. The report should be rejected in its entirety. It is irrevocably flawed and should be withdrawn. ICANN staff have squandered the time and resources that were allocated for this project. It should be redone in its entirety with all the missing elements mentioned in our submission taken into account, perhaps divided amongst multiple independent research groups outside of ICANN. ICANN staff simply don’t have the research skills to do the job, given what we’ve seen to date.

For the benefit of those who have yet to submit their own comments, we have completed our own detailed comments (14 pages) a little bit early, which are also now visible on ICANN’s website. With pro-complainant voices like INTA having already made their submissions, it is important that the voices of domain name registrants be heard, to provide balance.

 

ICANN staff published a Policy Status Report regarding the UDRP in early March 2022, which is open for public comments until this coming Tuesday (deadline is April 19, 2022 at 23:59 UTC). Unfortunately, the staff who prepared it lie to the public, making it another worthless document for those who seek to improve the deeply-flawed domain name dispute resolution procedure. It’s clear that the fix is in, and ICANN staff are merely going through the motions in order to arrive at a predetermined outcome, one that will not address the numerous problems of the UDRP experienced by registrants. Continue reading “ICANN Staff Lie To Public In UDRP Policy Status Report”