ICANN Public Comment Periods are a Sham. All Public Comment Periods Should be Suspended Until a Full Investigation Has Occurred

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.

 

Misuse of ICANN PDP Chair Position to Relitigate Working Group Decisions

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.

Double Standards in the Application of the ICANN Expected Standards of Behavior – Part 6

In this series, I examine past behavior at ICANN, contrasting it with the Expected Standards of Behavior (ESOB), and ask you to decide for yourself whether it has been applied equally to everyone, or instead is applied selectively to achieve different results when different people are involved.

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.

I previously documented how Mr. Corwin previously publicly rebuked me, in October 2018, for using the term “wish lists”, a term that had been used by others at ICANN.

On April 24, 2019, in a meeting of the Trademark Claims Data Review Sub Team of the RPM PDP, Mr. Corwin said the following in regards to one of the proposals I submitted:

Not to pile on – and I haven’t heard any support for this yet – I
just want to state in a personal capacity I regard this proposal as an intentionally poison pill proposal coming from a former member of this working group who was exceedingly clear that he wanted to sunset most, if not all, of the new TLD RPMs. [page 27 of transcript or starting at 45:40 of the MP3 recording, emphasis added]

So, in one instance, Mr. Corwin rebukes the innocuous term “wish lists” only when I use it (and not when others have used it). But then in another instance, Mr. Corwin feels free to make a far worse statement of his own, using the phrase “intentionally poison pill proposal.” His statement falsely suggests that my good faith proposal was actually made in bad faith (which is an attack on me personally). According to the ESOB, which Mr. Corwin claims must be followed, “Those who take part in the ICANN process must acknowledge the importance of all stakeholders and seek to understand their points of view.” Rather than attempt to do so, Mr. Corwin engaged in an attack against me when I wasn’t even present to defend myself (as I had been unfairly banished earlier that month. That’s the typical conduct of a coward, one who knows he can get away with an attack because the target of the statements isn’t present.

Without going into great length in this post (I’ll save that for future blog posts reviewing all my proposals), I made a serious proposal in good faith which sought to reimburse registrars for their costs (my company is not a registrar directly, although we do act as a reseller of the registrar Tucows mostly for the management of our own domain names) related to the Trademark Claims notices, via a CPM-based method. Some registrars haven’t even implemented the notices for new gTLDs (these notices might even become mandatory for legacy TLDs, depending on the outcome of the PDP), and those that did implement the notices have seen very high abandonment rates when prospective registrants are shopping for their domains. My proposal was a good faith attempt to find an economic solution to an economic problem (my academic background is in economics and finance), and one that is easy to implement (many DNS providers charge usage-based fees proportional to the number of DNS requests, as do other systems that use APIs, and as do many online advertising systems).

Indeed, it’s rich for Mr. Corwin, an employee and representative of Verisign, to attack my attempts to “work to build consensus with other stakeholders” (to quote the ESOB, with the “other stakeholders” being registrars facing burdens due to ICANN’s policies) and to act “irrespective of personal interests” (to again quote the ESOB, as my company isn’t directly impacted by the notices at present), given that section 7.3(d)(ii) of Verisign’s dot-com registry agreement permits Verisign to be directly compensated (through higher prices) if a new ICANN consensus policy imposes new burdens on Verisign. My proposal simply attempts to provide registrars with reimbursement for their burdens, to have similar protections that Verisign enjoys.

Indeed, I made another proposal in a similar vein which sought the provision of open source software examples to be provided to registrars, to once again lower the burden on registrars by lowering their implementation costs. This second proposal read in combination with the other shows my good faith intent to address a real economic problem for registrars. I doubt Mr. Corwin or Verisign would unilaterally offer to remove section 7.3(d)(ii) from their contract without compensation, but his criticism of my proposal would ring more sincere if Verisign did so.

Mr. Corwin, in rebuking me in the past, asserted that one should “refrain from using terms that denigrate the efforts and ideas of other WG members“. But it’s clear that he feels free to use phrases like “intentionally poison pill proposal” and not follow his own advice in his attack on myself, his policy opponent. Indeed, Mr. Corwin’s hypocrisy reminds me of Matthew 7:5:

Thou hypocrite, first cast out the beam out of thine own eye;
and then shalt thou see clearly to cast out the mote out of thy brother’s eye.

In conclusion, this example further illustrates the dangers of the ESOB. It has been weaponized to selectively target and eliminate policy opponents using one alleged “standard” of behavior, but then equal or even worse conduct is permitted. The double standard is clear.

Ten Year Renewal In Advance of Domain Name Fee Increases Is Inadequate Protection

In the past month, one of the most controversial topics in the domain name world has been the proposal by ICANN to permit unlimited fee increases for .ORG domain names, compared to the current generous allowance of 10% annual fee increases (far above inflation). My own submission in the public comment period can be read in a prior blog post.

Yesterday, PIR, the registry operator, wrote an open letter to the .ORG community that can be summarized in 2 words, “trust us.” That is insufficient. Organizations have a tendency to change their minds, especially when it serves their interests. What matters is what’s
in the contracts, as what is allowed to happen often does happen. Continue reading “Ten Year Renewal In Advance of Domain Name Fee Increases Is Inadequate Protection”

My comments to ICANN opposing proposed .org, .info, .biz and .asia contract renewals

Below is a (slightly reformatted) version of the comments I submitted to ICANN today regarding the proposed .org, info, .biz and .asia contract renewals. The deadline for comments on the .org and .info contracts is just a few hours away (longer deadline for .biz and .asia), so hopefully they inspire others to submit comments, if they’ve not already done so.

Submitted by: George Kirikos
Company: Leap of Faith Financial Services Inc.
Websitehttp://www.leap.com/
Date: April 29, 2019

We write to oppose the proposed contract renewals posted by ICANN for the .org, .info, .biz and .asia contracts, as posted for public comments at:

https://www.icann.org/public-comments/org-renewal-2019-03-18-en
https://www.icann.org/public-comments/info-renewal-2019-03-18-en
https://www.icann.org/public-comments/biz-renewal-2019-04-03-en
https://www.icann.org/public-comments/asia-renewal-2019-03-27-en

While our arguments are focused on the .org TLD, to the extent that
the contractual terms are similar for the other TLDs, we repeat the
same comments for .info, .biz and .org. Indeed, while the majority of
the thousands of public comments to date have focused on .org, ICANN
should read those comments as also applying to .info, .biz and .org,
even if the submitters did not explicitly submit their comments to all
4 email addresses.

Continue reading “My comments to ICANN opposing proposed .org, .info, .biz and .asia contract renewals”

Should ICANN staff be fired over the outrageous .org, .info, .biz and .asia proposed registry contracts?

ICANN staff put forth outrageous proposals for the renewal of the .org, .biz, .info and .asia contracts, which are now open for public comment (with the first deadline being April 29, 2019). ICANN is proposing allowing unlimited fee increases for .org domain names, which currently are allowed to increase a maximum of 10% annually. That 10% annual cap of fee increases came about after the huge public outcry that ensued in 2006 when a comparable proposal to eliminate price caps was made, and successfully opposed by the public. It seems that ICANN did not learn from history.

More than 100 comments have been submitted so far regarding the .org contract renewal, with most of them vehemently opposed to the potential for unlimited fee increases.

Should ICANN staff be held accountable for such outrageously one-sided contracts?  Please vote in the poll below on Twitter:

Continue reading “Should ICANN staff be fired over the outrageous .org, .info, .biz and .asia proposed registry contracts?”

Double Standards in the Application of the ICANN Expected Standards of Behavior – Part 5

In this series, I examine past behavior at ICANN, contrasting it with the Expected Standards of Behavior (ESOB), and ask you to decide for yourself whether it has been applied equally to everyone, or instead is applied selectively to achieve different results when different people are involved.

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.

On October 23, 2018, Mr. Corwin sent a bizarre email to the RPM PDP working group mailing list in his “capacity as co-chair” rebuking me
for using the term “wish lists”. Continue reading “Double Standards in the Application of the ICANN Expected Standards of Behavior – Part 5”

Double Standards in the Application of the ICANN Expected Standards of Behavior – Part 4

In this series, I examine past behavior at ICANN, contrasting it with the Expected Standards of Behavior (ESOB), and ask you to decide for yourself whether it has been applied equally to everyone, or instead is applied selectively to achieve different results when different people are involved.

Gregory S. Shatan is an attorney at Moses & Singer LLP. He claims
that that the ESOB are “bedrock principles of ICANN participation” and
does his “best to abide by them”.

On August 31, 2017, within the Adobe Connect chat, Mr. Shatan
introduced the “Jane, you ignorant slut” meme into the conversation:

Continue reading “Double Standards in the Application of the ICANN Expected Standards of Behavior – Part 4”

Impact of the URS and Unlimited Fee Increases for Registrants in .ORG, .INFO, .BIZ and .ASIA

I had the pleasure of having a discussion today with several members of the ICANN At-Large community, regarding the proposed contracts for .ORG, .INFO, .BIZ and .ASIA that are now out for public comment. Glenn McKnight, Jonathan Zuck and Eduardo Diaz participated, along with myself, and it was recorded (see YouTube recording below; best to fast forward to 1:40 into the recording, to get to the true beginning of the discussions). I hope you find it educational, and will comment on these proposed contracts. I’ll have more to say about these contracts as we get closer to the deadline for comments later this month.

There’s also an audio MP3 recording of our discussion.

Double Standards in the Application of the ICANN Expected Standards of Behavior – Part 3

In this series, I examine past behavior at ICANN, contrasting it with the Expected Standards of Behavior (ESOB), and ask you to decide for yourself whether it has been applied equally to everyone, or instead is applied selectively to achieve different results when different people are involved.

Gregory S. Shatan is an attorney at Moses & Singer LLP. He claims that the ESOB are “bedrock principles of ICANN participation” and does his “best to abide by them”. Continue reading “Double Standards in the Application of the ICANN Expected Standards of Behavior – Part 3”