Attorney* with FairWinds Partners advises (see below) business owners registering a domain name to also obtain the domain name in the "popular .COM TLD in order to prevent other companies from registering same."
Which of course begs the question, if you still need to have the dot Com domain name even when registering a name in another domain extension, then why did ICANN even bother to flood the market with more than 1000 new gTLD extensions? Oh yeah, it's all about the money.
Pay No Attention To That Trademark Behind The Curtain | Domain Name Strategy: "... This case also speaks to the need for business owners to pay attention to the top-level domain when registering domain names. While the Respondent was wise to register its branded domain name in the gTLD of “.MOBI”, since that reflects its mobile-related services, the Respondent should also have obtained the domain name in the popular .COM TLD in order to prevent other companies from registering the name. While it is not necessary to register a domain name across all TLDs all of the time, it is important to make a strategic decision about which ones to register defensively in and, as new gTLDs launch, when to use the Trademark Clearinghouse."
*Steve Levy - FairWinds Partners: "Steve, an attorney with over 23 years of experience practicing law... "
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2014-06-29
Separating IANA from ICANN, the path forward
From my comment* at the IGP blog post (link below):
France has now taken the lead to open discussion outside of the "ICANN venue" as to the future of internet governance. Fadi Chehade ironically complains about those who want to delay the IANA transition when, in all probability, it will be him and the ICANN board which will want to delay the transition once they realize the vast majority of the global community wants to separate IANA from ICANN. ICANN is severely dysfunctional; whether ICANN can even be reformed or should just be replaced with a new policy making body (as France is proposing) may take a long time to resolve. In the meantime, the global multistakeholder community should not allow the issues of ICANN accountability and reform to delay the IANA transition. This is easily resolved by separating IANA from ICANN as soon as possible. It appears many nations and others in the global multistakeholder community are beginning to see this as the best and most prudent path forward. Once the IANA technical functions are separated from ICANN, that fact will actually assist the process of how to make ICANN, or its successor, accountable in the public interest to the global multistakeholder community, in its policy-making and administrative role.
For more on this issue, read Milton Mueller's posting at the Internet Governance Project blog (link below, excerpt follows):
Clarity emerging on IANA transition | IGP Blog: ".... structural separation of ICANN as policy maker from IANA as implementer would prevent concentration of unchecked power in ICANN’s hands and help keep IANA accountable – without having to solve all of ICANN’s other accountability problems at once. Once the two were separated, the ICANN community could take a longer-term, less rushed approach to reforming ICANN’s policy making processes. Issues such as the role of members in electing the board, ICANN’s legal status, new appeals mechanisms and the like could take years to develop and implement. It is unwise to tie the IANA transition to those changes. At a meeting with the Noncommercial Users Constituency in London, NTIA director Lawrence Strickling and State Department Ambassador Danny Sepulveda confirmed our sense that structural separation of IANA from ICANN is not ‘out of scope.’... The IANA transition Coordinating Committee, Strickling said, “can do what it wants” in that regard. Strickling himself expressed support for separation of policy and implementation...."
As for the particulars of IANA separation from ICANN, there are many proposals including the IGP proposal, and even Domain Mondo's, all of which are very similar in their approach and outcome.
*John Poole
Domain Mondo
June 29, 2014
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France has now taken the lead to open discussion outside of the "ICANN venue" as to the future of internet governance. Fadi Chehade ironically complains about those who want to delay the IANA transition when, in all probability, it will be him and the ICANN board which will want to delay the transition once they realize the vast majority of the global community wants to separate IANA from ICANN. ICANN is severely dysfunctional; whether ICANN can even be reformed or should just be replaced with a new policy making body (as France is proposing) may take a long time to resolve. In the meantime, the global multistakeholder community should not allow the issues of ICANN accountability and reform to delay the IANA transition. This is easily resolved by separating IANA from ICANN as soon as possible. It appears many nations and others in the global multistakeholder community are beginning to see this as the best and most prudent path forward. Once the IANA technical functions are separated from ICANN, that fact will actually assist the process of how to make ICANN, or its successor, accountable in the public interest to the global multistakeholder community, in its policy-making and administrative role.
For more on this issue, read Milton Mueller's posting at the Internet Governance Project blog (link below, excerpt follows):
Clarity emerging on IANA transition | IGP Blog: ".... structural separation of ICANN as policy maker from IANA as implementer would prevent concentration of unchecked power in ICANN’s hands and help keep IANA accountable – without having to solve all of ICANN’s other accountability problems at once. Once the two were separated, the ICANN community could take a longer-term, less rushed approach to reforming ICANN’s policy making processes. Issues such as the role of members in electing the board, ICANN’s legal status, new appeals mechanisms and the like could take years to develop and implement. It is unwise to tie the IANA transition to those changes. At a meeting with the Noncommercial Users Constituency in London, NTIA director Lawrence Strickling and State Department Ambassador Danny Sepulveda confirmed our sense that structural separation of IANA from ICANN is not ‘out of scope.’... The IANA transition Coordinating Committee, Strickling said, “can do what it wants” in that regard. Strickling himself expressed support for separation of policy and implementation...."
As for the particulars of IANA separation from ICANN, there are many proposals including the IGP proposal, and even Domain Mondo's, all of which are very similar in their approach and outcome.
*John Poole
Domain Mondo
June 29, 2014
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2014-06-26
GNSO Calls for Independent Accountability Body to Oversee ICANN
On the final day of ICANN 50 meeting in London, the GNSO (Generic Names Supporting Organization) issued a call for independent oversight of ICANN, and received extended applause from those present:
Call for independent accountability body to oversee ICANN - Blog - World Trademark Review: "In a rare instance of consensus amongst the Generic Names Supporting Organisation’s (GNSO) various stakeholder groups, the leaders of the body’s committee today called for the creation of an independent accountability mechanism that “provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community”...
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Call for independent accountability body to oversee ICANN - Blog - World Trademark Review: "In a rare instance of consensus amongst the Generic Names Supporting Organisation’s (GNSO) various stakeholder groups, the leaders of the body’s committee today called for the creation of an independent accountability mechanism that “provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community”...
"We need an independent accountability structure that holds the ICANN Board, staff and various stakeholder groups accountable under ICANN's governing documents, serves as an ultimate review of Board/staff decisions, and through the creation of precedent, creates prospective guidance for the board, the staff, and the entire community...."(read more at the World Trademark Review)
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ICANN50 in London: Clever Trains, Talking Toilets (video)
Clever Trains, Talking Toilets: London Gets Smart: Video - Bloomberg:
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ICANN 50 in London: the Tube and the Internet of Things-- "London has the world's oldest underground system. After more than 150 years in operation, it's now going high-tech as part of a general move by the British capital to use the Internet of Things to help cope with an increasing population. Bloomberg's Caroline Hyde reports." (Source: Bloomberg)
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ICANN 50 in London: the Tube and the Internet of Things-- "London has the world's oldest underground system. After more than 150 years in operation, it's now going high-tech as part of a general move by the British capital to use the Internet of Things to help cope with an increasing population. Bloomberg's Caroline Hyde reports." (Source: Bloomberg)
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2014-06-25
Clueless ICANN, Little Demand for New Domain Names, Rivers of Red Ink
Clueless ICANN: Only morons think increasing supply increases demand. GoDaddy, the most dominant (37.17% Market Share) domain name registrar with 57+ million domains registered, has not generated a profit since 2009 and in the last two years has reported combined losses of $480 million according to CNN.com*. [Sounds like a good time to do an IPO in the stock market!]
So what does ICANN do? Massively increase supply and flood the market with more than 1000 new domain name extensions, up from just 22 domain extensions (.com, .net, .org et al). Add the fact that over 75% of all registered domain names are not used for "active websites" -- they either do not resolve at all or are "parked" or similar -- and what you have is massive oversupply and rivers of red ink.
And here's another depressing FACT for ICANN and all the new gTLD believers: increasing numbers of internet users do NOT equate to, or correlate with, an increase in domain name registrations. Domain name registrations equate to (or correlate with) high gross national income per capita, absence of government censorship, fast and cheap internet, and high numbers of web content creators. Unfortunately, these same factors therefore exclude most people in the world as potential domain name registrants--including those whose only access to the internet is via a cheap phone or phablet (i.e., most of Asia, Africa, and Latin America). This is why almost 4 out of every 5 domain name registrations in the world (gTLDs + ccTLDs) are in Europe or North America. And unfortunately, Europe and North America are now mature, slow growth markets for domain name registrations. In the US alone, there was (long before the first new gTLD launched) already one domain name registered for every 3 internet users! And while mobile internet use is growing, it looks increasingly like a mobile app world -- not a mobile website world!
And now, as if the money-losing domain name industry didn't have enough to worry about, the technology giant Google decides to enter the domain name industry as registrar and registry, competing with GoDaddy et al. No wonder the domain registrar stocks are dropping! Pretty soon Google will be giving away domain names (I know, they are late to that game -- .berlin or .xyz anyone?) to get businesses to buy (or "subscribe" to) Google services, Google advertising, etc. Adding insult to injury, Google probably doesn't even expect to make a profit off their registry/registrar businesses--they just want to make it convenient and easy for content creators and businesses to use Google platforms and services--so Google can likewise increase Google advertising revenues. At this point, Google is a one-stop shop--advertising network, search engine, cloud engine, content delivery network, platforms (YouTube, Blogger, Google Sites, Google Cloud, Google Play, etc.) and endless other Google services (e.g., Google maps, Google voice, etc.). My guess is Amazon and Microsoft (and maybe Apple, Yahoo, or Facebook) are not far behind. Here's part of an email I received from Amazon Web Services today:And here's another depressing FACT for ICANN and all the new gTLD believers: increasing numbers of internet users do NOT equate to, or correlate with, an increase in domain name registrations. Domain name registrations equate to (or correlate with) high gross national income per capita, absence of government censorship, fast and cheap internet, and high numbers of web content creators. Unfortunately, these same factors therefore exclude most people in the world as potential domain name registrants--including those whose only access to the internet is via a cheap phone or phablet (i.e., most of Asia, Africa, and Latin America). This is why almost 4 out of every 5 domain name registrations in the world (gTLDs + ccTLDs) are in Europe or North America. And unfortunately, Europe and North America are now mature, slow growth markets for domain name registrations. In the US alone, there was (long before the first new gTLD launched) already one domain name registered for every 3 internet users! And while mobile internet use is growing, it looks increasingly like a mobile app world -- not a mobile website world!
"AWS [Amazon Web Services] is focused on continually lowering your overall IT costs. We recently announced our 42nd price drop, making the AWS Total Cost of Ownership (TCO) even better when compared to on-premises or colocation hosting environments. You can save a significant amount by running both your fixed and variable workloads on AWS."Say you have a dotCom domain name -- the one domain name extension that is recognized and used everywhere in the world. Unlike new gTLDs, every browser will resolve a dot Com domain name to your website -- try that on an Apple device with some of the new gTLDs! And which domain name extension is more cost competitive in annual registration fees -- your recognized and trusted dot Com domain name or a new, unrecognized, unreachable new gTLD? In almost every case, new gTLDs cost more in renewal registration fees, sometimes much more.
All of this is why the new gTLDs will mostly fail. I personally know a manager for a US company with hundreds of domain name registrations (most under WHOIS privacy) -- only one new gTLD -- a 5 letter .xyz that matches a .com, .net, and .org in the portfolio (yes, $-0- acquisition cost via Network Solutions). That is not unusual -- look at the data, all of the new gTLD domain names (after you subtract the freebie give aways, the cybersquatters, and domain name speculators) have either stalled or failed out of the gate.
You don't hear them talking about any of this at ICANN 50. Clueless.
It's pretty easy to see where all of this is going. Most global companies (and most companies with global aspirations) are going to lock onto their "dot Com" and forget about acquiring any other domain names. Part of the money saved will be spent on trademark registrations and defense, including selective UDRP and URS actions.
Look, I'm all for innovation, but saying something is "innovation" doesn't make it so. You remember what Steve Jobs said about innovation don't you? "Innovation is saying 'no' to 1,000 things." Too bad ICANN and all the dumb money chasing new gTLD domain names never learned that.
John Poole
Domain Mondo
June 24, 2014
*Update: erroneous data from CNN deleted/corrected 6/26/2014
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2014-06-24
Will ICANN Board Disclose New Swiss Legal Structure at ICANN 50?
Will ICANN Be The Next International Organisation In Geneva? | Intellectual Property Watch | 2 March 2014: "During a visit to France last week, Fadi Chehadé, the CEO and president of the Internet Corporation for Assigned Names and Numbers (ICANN), announced that his Board of Directors has given him the green light to further explore reforms of ICANN. Among them is the possibility of creating a parallel ICANN international structure, likely based in Geneva... A resolution of the ICANN Board from 17 February created presidential advisory groups [pdf] established to work on five issues. One advisory group will explore the idea to “Establish complementary parallel international structure to enhance ICANN’s global legitimacy.” Although the document does not refer to Geneva, Chehadé in several talks during his visit in France strongly referred to that possibility.... Interviewed by France Culture radio program “Place de la toile” [program in French] on 22 February, Chehadé explained that he would like to see the creation of a parallel structure for ICANN under the Swiss legal system...." See also Fadi Chehade in this 21 Feb 2014 hearing before the French Senate (video in French).
So will the ICANN Board of Directors disclose to the global multistakeholder community its plans to change (or create a parallel) ICANN legal structure under Swiss law at the ICANN 50 London Meeting as directed in ICANN Board Resolution 2014.02.17.01, adopted February 17, 2014?
"President’s Globalization Advisory Group on: Legal Structure: Establish complimentary parallel international structure to enhance ICANN’s global legitimacy. Consider complementary parallel international structure within scope of ICANN’s mandate. Composition: Sébastien Bachollet; Olga Madruga-Forti; Erika Mann; Gonzalo Navarro; Ray Plzak" (source: ICANN pdf).
Approved Board Resolutions | Special Meeting of the ICANN Board of Directors on February 17, 2014:
Resolution 2014.02.17.01 ".... Whereas, the continued globalization of ICANN must evolve in several ways, including: ... evolving the policy structures to serve and scale to the needs of the global community, and identify opportunities for the future legal structures and IANA globalization.... Whereas, as part of its continued globalization efforts, ICANN should establish certain "President's Globalization Advisory Groups" composed of Board members to address the following areas: Affirmation of Commitments ("AOC"), policy structures, legal structure, root server system, the IANA multistakeholder accountability, and Internet governance.
"Resolved (2014.02.17.01), the Board approves the creation of several President's Globalization Advisory Groups in order to support further ICANN globalization... The President's Globalization Advisory Groups will then make recommendations to the Board, which the Board will report during ICANN 50 London Meeting. These Advisory Groups will deal with the following topics:... policy structures; legal structure;... Internet governance... the President and CEO shall have the authority to change the Advisory Groups and their composition from time to time, without requiring a further resolution.
"RATIONALE FOR RESOLUTION 2014.02.17.01...The continued globalization of ICANN must evolve in several ways, including:... identify opportunities for the future legal structures and IANA globalization. This is an Organizational Administrative Function for which public comment is not required."
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"President’s Globalization Advisory Group on: Legal Structure: Establish complimentary parallel international structure to enhance ICANN’s global legitimacy. Consider complementary parallel international structure within scope of ICANN’s mandate. Composition: Sébastien Bachollet; Olga Madruga-Forti; Erika Mann; Gonzalo Navarro; Ray Plzak" (source: ICANN pdf).
Approved Board Resolutions | Special Meeting of the ICANN Board of Directors on February 17, 2014:
Resolution 2014.02.17.01 ".... Whereas, the continued globalization of ICANN must evolve in several ways, including: ... evolving the policy structures to serve and scale to the needs of the global community, and identify opportunities for the future legal structures and IANA globalization.... Whereas, as part of its continued globalization efforts, ICANN should establish certain "President's Globalization Advisory Groups" composed of Board members to address the following areas: Affirmation of Commitments ("AOC"), policy structures, legal structure, root server system, the IANA multistakeholder accountability, and Internet governance.
"Resolved (2014.02.17.01), the Board approves the creation of several President's Globalization Advisory Groups in order to support further ICANN globalization... The President's Globalization Advisory Groups will then make recommendations to the Board, which the Board will report during ICANN 50 London Meeting. These Advisory Groups will deal with the following topics:... policy structures; legal structure;... Internet governance... the President and CEO shall have the authority to change the Advisory Groups and their composition from time to time, without requiring a further resolution.
"RATIONALE FOR RESOLUTION 2014.02.17.01...The continued globalization of ICANN must evolve in several ways, including:... identify opportunities for the future legal structures and IANA globalization. This is an Organizational Administrative Function for which public comment is not required."
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2014-06-23
New gTLDs .wine and .vin -- ICANN (and others) "just don't get it"
When it comes to .wine, .vin, and other new gTLDs, ICANN, and some others, just don't get it --
For more on this developing story, check out my special report on expVC.com -- "ICANN vs France, Spain, Portugal, and the EU over .wine and .vin."
--John Poole
Domain Mondo
June 23, 2014
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@thedomains That's because you are not French!
— Domain Mondo (@DomainMondo) June 22, 2014
For more on this developing story, check out my special report on expVC.com -- "ICANN vs France, Spain, Portugal, and the EU over .wine and .vin."
--John Poole
Domain Mondo
June 23, 2014
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2014-06-22
ICANN50 London's Dirty Secret - Worse Air Than Beijing (video)
London's Dirty Secret: Worse Air Than Beijing: Video - Bloomberg:
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In London for the ICANN meeting? Did you bring your gas mask? -- "Pollution is rarely big news these days. You’re more likely to hear about it in a history lesson on the Industrial Revolution. But many European cities are suffering as air pollution is becoming a serious problem. Bloomberg's Tom Gibson reports." (Source: Bloomberg, June 16, 2014)
Of course there will probably be more hot air and air pollution inside the official venue -- the Hilton London Metropole Hotel, than outside!
And if you are not in London, many of the meetings will be streamed live.
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In London for the ICANN meeting? Did you bring your gas mask? -- "Pollution is rarely big news these days. You’re more likely to hear about it in a history lesson on the Industrial Revolution. But many European cities are suffering as air pollution is becoming a serious problem. Bloomberg's Tom Gibson reports." (Source: Bloomberg, June 16, 2014)
Of course there will probably be more hot air and air pollution inside the official venue -- the Hilton London Metropole Hotel, than outside!
And if you are not in London, many of the meetings will be streamed live.
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2014-06-20
Auerbach v ICANN, One Man's Fight to Make ICANN Accountable
One ICANN director, more than 10 years ago, stood alone (with assistance from the Electronic Frontier Foundation a/k/a EFF) to try to make ICANN a little more open, transparent, and accountable, instead of its often closed, secret, top-down method of internet governance --
Auerbach v. ICANN Lawsuit - ICANN: Marina del Rey, California, USA (29 July 2002) -- "At a hearing today, Los Angeles Superior Court Judge Dzintra Janavs ordered that ICANN Director Karl Auerbach should be allowed to inspect specified ICANN documents, but also ruled that Auerbach must respect ICANN's confidentiality designations, with the Court to resolve any disagreements over the propriety of those designations. . . . In her analysis, Judge Janavs ruled that California law does not permit California non-profit corporations to place any restrictions or conditions on director's inspection rights, but allows only courts to place restrictions, after a demand for inspection has been refused. In this respect, the court rejected ICANN's position. ICANN respectfully disagrees and will consider whether to appeal this decision upon review of the Court's written judgment, which will be issued next week. The Court also ruled orally that ICANN must, by Friday of this week, provide Mr. Auerbach with electronic copies of all "non-confidential" (as designated by ICANN) materials he has requested that already exist in electronic form...."
Auerbach v. ICANN Lawsuit - ICANN: Marina del Rey, California, USA (29 July 2002) -- "At a hearing today, Los Angeles Superior Court Judge Dzintra Janavs ordered that ICANN Director Karl Auerbach should be allowed to inspect specified ICANN documents, but also ruled that Auerbach must respect ICANN's confidentiality designations, with the Court to resolve any disagreements over the propriety of those designations. . . . In her analysis, Judge Janavs ruled that California law does not permit California non-profit corporations to place any restrictions or conditions on director's inspection rights, but allows only courts to place restrictions, after a demand for inspection has been refused. In this respect, the court rejected ICANN's position. ICANN respectfully disagrees and will consider whether to appeal this decision upon review of the Court's written judgment, which will be issued next week. The Court also ruled orally that ICANN must, by Friday of this week, provide Mr. Auerbach with electronic copies of all "non-confidential" (as designated by ICANN) materials he has requested that already exist in electronic form...."
ICANN, reluctantly, complied with the Court's ruling but thereafter changed the rules on representation and selection of directors to ICANN's Board of Directors [so ICANN would not have any more "Karl Auerbachs" who might demand an open, transparent, and accountable ICANN?]
For more info on the Karl Auerbach vs. ICANN litigation, see Resources - ICANN, Auerbach v. ICANN:
Petition (18 March 2002) [PDF, 81 KB]
Answer (17 April 2002) [PDF, 64 KB]
Amended Answer (1 May 2002) [PDF, 68 KB]
ICANN's Motion for Summary Judgment (21 May 2002):
Memorandum of Points and Authorities [PDF, 96 KB]
Declaration of Vinton Cerf [PDF, 430 KB]
Declaration of M. Stuart Lynn [PDF, 3.87 MB]
Declaration of Louis Touton [PDF, 5.33 MB]
Separate Statement of Undisputed Material Facts [PDF, 55 KB]
ICANN's Reply Memorandum (15 July 2002) [PDF, 52 KB]
Advisory on Court Ruling in Auerbach v. ICANN Lawsuit (29 July 2002)
Advisory on Documents Provided to Karl Auerbach (4 August 2002)
Additional Documents Provided (8 August 2002)
For more info on the Karl Auerbach vs. ICANN litigation, see Resources - ICANN, Auerbach v. ICANN:
Petition (18 March 2002) [PDF, 81 KB]
Answer (17 April 2002) [PDF, 64 KB]
Amended Answer (1 May 2002) [PDF, 68 KB]
ICANN's Motion for Summary Judgment (21 May 2002):
Memorandum of Points and Authorities [PDF, 96 KB]
Declaration of Vinton Cerf [PDF, 430 KB]
Declaration of M. Stuart Lynn [PDF, 3.87 MB]
Declaration of Louis Touton [PDF, 5.33 MB]
Separate Statement of Undisputed Material Facts [PDF, 55 KB]
ICANN's Reply Memorandum (15 July 2002) [PDF, 52 KB]
Advisory on Court Ruling in Auerbach v. ICANN Lawsuit (29 July 2002)
Advisory on Documents Provided to Karl Auerbach (4 August 2002)
Additional Documents Provided (8 August 2002)
2014-06-19
How ICANN Really Works (a "must read" if you are going to London 50)
If you are going to ICANN's next meeting in London -- London 50 (June 22-26), and you are "new to ICANN" I hate to burst your bubble but forewarned is forearmed -- this is how ICANN really works (in the words of one who has been to many, many ICANN meetings):
ICANN's policy-making is like a legislative process of which someone else once said: “Laws, like sausages, cease to inspire respect in proportion as we know how they are made."
But irrespective of how dysfunctional ICANN is, at least enjoy and have some fun in London -- "when a man is tired of London, he is tired of life; for there is in London all that life can afford." -- Samuel Johnson
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2014-06-18
ICANN Fails to Prohibit Warehousing OR Speculation in Domain Names by new gTLD Registry Operators and Registrars
ICANN is "MIA" (missing in action) in its duty to govern its own accredited domain name registrars and gTLD registry operators and prohibit warehousing of or speculation in domain names -- e.g., according to Wikipedia, "ICANN has not yet amended the RAA with policies to limit domain warehousing and related practices."
And yet, if you peruse the ICANN website you come across--
Resources - ICANN: "ICANN's agreements with accredited registrars and with gTLD registry operators require compliance with various specifically stated procedures and also with "consensus policies." Sponsors and registry operators of sponsored TLDs may be required to comply with consensus policies in some instances."
ICANN: Consensus Policies relating to registry operations or registrars . . . shall include, without limitation:
(A) principles for allocation of registered names in the TLD (e.g., first-come, first-served, timely renewal, holding period after expiration);
(B) prohibitions on warehousing of or speculation in domain names by registries or registrars; (source: Verisign dot Com registry agreement)
Here's the language from 2013 ICANN Registrar Accreditation Agreement:
3.7.9 Registrar shall abide by any Consensus Policy prohibiting or restricting warehousing of or speculation in domain names by registrars.
And from the base gTLD Registry Agreement: 1.3. Such categories of issues referred to in Section 1.2 of this Specification shall include, without limitation:
1.3.1 principles for allocation of registered names in the TLD (e.g., first-come/first-served, timely renewal, holding period after expiration);
1.3.2 prohibitions on warehousing of or speculation in domain names by registries or registrars;
But although proposed, ICANN apparently has no prohibitions on warehousing of, or speculation in domain names by new gTLD registry operators and/or registrars and/or affiliated companies -- see, e.g., reports documented here and here. So where is the public interest being served by ICANN? Nowhere!
ICANN #FAIL
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And yet, if you peruse the ICANN website you come across--
Resources - ICANN: "ICANN's agreements with accredited registrars and with gTLD registry operators require compliance with various specifically stated procedures and also with "consensus policies." Sponsors and registry operators of sponsored TLDs may be required to comply with consensus policies in some instances."
ICANN: Consensus Policies relating to registry operations or registrars . . . shall include, without limitation:
(A) principles for allocation of registered names in the TLD (e.g., first-come, first-served, timely renewal, holding period after expiration);
(B) prohibitions on warehousing of or speculation in domain names by registries or registrars; (source: Verisign dot Com registry agreement)
Here's the language from 2013 ICANN Registrar Accreditation Agreement:
3.7.9 Registrar shall abide by any Consensus Policy prohibiting or restricting warehousing of or speculation in domain names by registrars.
And from the base gTLD Registry Agreement: 1.3. Such categories of issues referred to in Section 1.2 of this Specification shall include, without limitation:
1.3.1 principles for allocation of registered names in the TLD (e.g., first-come/first-served, timely renewal, holding period after expiration);
1.3.2 prohibitions on warehousing of or speculation in domain names by registries or registrars;
ICANN #FAIL
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2014-06-17
For Domain Name Registrants, ICANN Is Useless
When it comes to protecting Domain Name Registrants, and their interests, almost everyone who is knowledgeable, knows that ICANN is pretty much useless and inept -- even willfully so -- here's a good example -- read the ICANN dot Com Registry Agreement with Verisign and ask yourself why the limitation on fees Verisign can charge is not there AND was not as a result of ICANN action but ONLY by action of the US Government in its separate Amendment 32 to the Cooperative Agreement with Verisign which extended the term of the Cooperative Agreement through November 30, 2018, and provided the Maximum Price (as defined in the 2012 .com Registry Agreement) of a .com domain name shall not exceed $7.85 [subject to a limited right to seek increase approval from the Department of Commerce.]*
Here's what one blogger remarked at the time (2012):
Verisign loses right to increase .com prices | DomainIncite: "...[Amendment 32 is] also an embarrassment to ICANN, which seems to have demonstrated that it’s less capable of looking after the interests of registrants than the US government..."
Let's repeat that: ICANN has demonstrated, time and time again, that ICANN is less capable of looking after the interests of domain name registrants than the US government -- or almost any government! Just look how ICANN sold domain name registrants down the river in the new gTLD domain name renewal fees!
Here's what one blogger remarked at the time (2012):
Verisign loses right to increase .com prices | DomainIncite: "...[Amendment 32 is] also an embarrassment to ICANN, which seems to have demonstrated that it’s less capable of looking after the interests of registrants than the US government..."
Let's repeat that: ICANN has demonstrated, time and time again, that ICANN is less capable of looking after the interests of domain name registrants than the US government -- or almost any government! Just look how ICANN sold domain name registrants down the river in the new gTLD domain name renewal fees!
As a domain name registrant, do you think I want the US government to just walk away from its oversight role of ICANN? I would then have no protection! My big complaint is that US government oversight of ICANN has been, in reality, almost no oversight, all to the detriment of all domain name registrants. As a domain name registrant, I would rather have some kind of multilateral internet governance -- multilateral means governments would have the final say in all matters concerning domain names and domain name system public policy -- than the severely flawed multistakeholderism as practiced within ICANN. ICANN is conflicted, co-opted, and corrupted, and the condition is systemic. The world needs to stop being in denial. ICANN has not been a good steward of the domain name system and ICANN has demonstrated it is incapable of looking after the interests of domain name registrants. ICANN needs to be replaced.
*Postscript: The role of the Internet Commerce Association (ICA) in protecting domain name registrants in the Verisign dot Com fees case was pivotal. Here are some other organizations that actually help protect and defend domain name registrants -- a real life example --
Kentucky Supreme Court Reverses Ruling Challenging Domain Name Seizures - Electronic Frontier Foundation: "The case began in late 2008 when, in a move to combat what it viewed as illegal online gambling, the Commonwealth of Kentucky convinced a state court to order the "seizure" of 141 domain names because the names allegedly constituted "gambling devices" that are banned under Kentucky law -- even though the sites were owned and operated by individuals outside of the state, and in many cases even outside of the country.... In amicus briefs filed with the Court of Appeals and the Kentucky Supreme Court in support of a writ vacating the trial court's order, EFF [Electronic Frontier Foundation], Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) argued that the First Amendment, the Commerce Clause, and the Due Process Clause of the [U.S.] Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state. EFF expects to participate as amicus in future proceedings if and when the affected domain name registrants continue their challenge to the trial court's ruling." [Sidenote: this is another reason to insist that US government oversight and jurisdiction over the legacy domains .com, .net, and .org continue, no matter what happens to IANA and ICANN.]
Bottom Line: Domain Name Registrants, do not look to ICANN for protection of your rights or interests.
John Poole
Domain Mondo
June 17, 2014
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ICANN ought to be embarrassed -- and ashamed. As far as domain name registrants go, ICANN is really worse than useless. ICANN appears to be interested only in the money -- ICANN protects and promotes registry operators and registrars over the public interest and the interests of domain name registrants -- just look at how pathetic "ICANN's Domain Name Registrants' Rights" really are. This is just one more reason, of many, why IANA should be separated from ICANN, and then ICANN should be replaced.
*Postscript: The role of the Internet Commerce Association (ICA) in protecting domain name registrants in the Verisign dot Com fees case was pivotal. Here are some other organizations that actually help protect and defend domain name registrants -- a real life example --
Kentucky Supreme Court Reverses Ruling Challenging Domain Name Seizures - Electronic Frontier Foundation: "The case began in late 2008 when, in a move to combat what it viewed as illegal online gambling, the Commonwealth of Kentucky convinced a state court to order the "seizure" of 141 domain names because the names allegedly constituted "gambling devices" that are banned under Kentucky law -- even though the sites were owned and operated by individuals outside of the state, and in many cases even outside of the country.... In amicus briefs filed with the Court of Appeals and the Kentucky Supreme Court in support of a writ vacating the trial court's order, EFF [Electronic Frontier Foundation], Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) argued that the First Amendment, the Commerce Clause, and the Due Process Clause of the [U.S.] Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state. EFF expects to participate as amicus in future proceedings if and when the affected domain name registrants continue their challenge to the trial court's ruling." [Sidenote: this is another reason to insist that US government oversight and jurisdiction over the legacy domains .com, .net, and .org continue, no matter what happens to IANA and ICANN.]
Bottom Line: Domain Name Registrants, do not look to ICANN for protection of your rights or interests.
John Poole
Domain Mondo
June 17, 2014
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2014-06-16
What Are You Selling ICANN? Who Are ICANN's Customers? (ICANN video) Hint: It's NOT Domain Registrants nor Internet Users
An Interview with Akram Atallah on the Global Domains Division | 14 June 2013 -
ICANN’s Brad White interviews Akram Atallah, President of the ICANN Global Domains Division, on the creation of a Generic Domains Division his new role as President and his thoughts on new gTLDs as they near delegation. (June 14, 2013)
Unbelievable! -- in the video above ICANN's President of the Global Domains Division refers (more than once) to Registry Operators and Registrars as ICANN's "Customers". Watch and listen as this guy explains the new gTLDs program from his ICANN perspective and why his goal is to put the compliance division of ICANN "out-of-business" (@2:28-2:48) -- (as if ICANN compliance does much of anything, anyway.)
For more on how dysfunctional ICANN is in this era of new gTLDs: Is It ICANN's Job To Market New gTLD Domain Names?
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ICANN’s Brad White interviews Akram Atallah, President of the ICANN Global Domains Division, on the creation of a Generic Domains Division his new role as President and his thoughts on new gTLDs as they near delegation. (June 14, 2013)
Unbelievable! -- in the video above ICANN's President of the Global Domains Division refers (more than once) to Registry Operators and Registrars as ICANN's "Customers". Watch and listen as this guy explains the new gTLDs program from his ICANN perspective and why his goal is to put the compliance division of ICANN "out-of-business" (@2:28-2:48) -- (as if ICANN compliance does much of anything, anyway.)
For more on how dysfunctional ICANN is in this era of new gTLDs: Is It ICANN's Job To Market New gTLD Domain Names?
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2014-06-15
Tweets of the Week: new gTLDs, XYZ, ICANN
Are New Top-Level Domain Names A Squatter's Dream? - http://t.co/vmvUa9SwfC
— Gizmodo Australia (@GizmodoAU) June 10, 2014
.xyz is officially the fastest growing new domain extension #xyz #genxyz #killingit pic.twitter.com/o1WAbCeDTZ
— XYZ (@xyz) June 11, 2014
Like it or not, .XYZ surpasses .XXX and .PRO based on zonefile data. #ICANN #newgtlds http://t.co/CLxpxrqvau
http://t.co/INbx6hWFgy
— TLDWatch (@TLDWatch) June 12, 2014
Odd that Network Solutions is buying @xyz domains en masse. I wonder why‽ http://t.co/UvOBiGycCN
— Darnell Clayton (@Darnell) June 9, 2014
ICANN is MIA on .XYZ by Philip Corwin, Internet Commerce Association: The .XYZ opt-out domain registration... http://t.co/fvtkG6O9jd
— Nimishaa J (@parkingado) June 13, 2014
@TilakBisht there's a lot more backstory on .xyz than would fit in a tweet.
— Matt Cutts (@mattcutts) June 11, 2014
Get the background info on #NewgTLDs Auctions – the why, how & latest news all right here >> http://t.co/5xlTzbvrBY #ICANN
— ICANN (@ICANN) June 8, 2014
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2014-06-13
ICANN Expert Working Group Says Completely Replace WHOIS (video)
Jean-Francois Baril Discusses the EWG Final Report -
"Brad White interviews EWG Lead Facilitator Jean-Francois Baril about the Final Report on the Next Generation Registration Directory Service."
Resources - ICANN: "The EWG's Final Report details a complete replacement for WHOIS. The EWG proposes an unprecedented "paradigm shift" to a next generation Registration Directory Service. The EWG's Final Report was submitted to ICANN's CEO & Board and will be explored at ICANN 50 in London."
Final Report from the Expert Working Group on gTLD Directory Services: A Next-Generation Registration Directory Service (RDS) - The Report recommending completely replacing the current WhoIs can be found here (pdf): https://www.icann.org/en/system/files/files/final-report-06jun14-en.pdf
EWG Recommends a Replacement for WHOIS - ICANN: "... The EWG, in its 166-page final report, unanimously recommends replacing today's problematic WHOIS model, which gives anonymous users universal access to generic Top-Level Domain (gTLD) registration data that is too often inaccurate. After 15-months of study, the EWG report recommends a new system that would continue to make basic data publicly available while making the rest accessible only to accredited requestors who identify themselves, state their purpose and agree to be held accountable for appropriate use of the data..."
Whois - Wikipedia: WHOIS (pronounced as the phrase who is) is a query and response protocol that is widely used for querying databases that store the registered users or assignees of an Internet resource, such as a domain name, an IP address block, or an autonomous system, but is also used for a wider range of other information. The protocol stores and delivers database content in a human-readable format. The WHOIS protocol is documented in RFC 3912....
Mr. Baril, the EWG, and a dissenting opinion were the subject of a earlier Domain Mondo post: ICANN suppresses free speech
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"Brad White interviews EWG Lead Facilitator Jean-Francois Baril about the Final Report on the Next Generation Registration Directory Service."
Resources - ICANN: "The EWG's Final Report details a complete replacement for WHOIS. The EWG proposes an unprecedented "paradigm shift" to a next generation Registration Directory Service. The EWG's Final Report was submitted to ICANN's CEO & Board and will be explored at ICANN 50 in London."
Final Report from the Expert Working Group on gTLD Directory Services: A Next-Generation Registration Directory Service (RDS) - The Report recommending completely replacing the current WhoIs can be found here (pdf): https://www.icann.org/en/system/files/files/final-report-06jun14-en.pdf
EWG Recommends a Replacement for WHOIS - ICANN: "... The EWG, in its 166-page final report, unanimously recommends replacing today's problematic WHOIS model, which gives anonymous users universal access to generic Top-Level Domain (gTLD) registration data that is too often inaccurate. After 15-months of study, the EWG report recommends a new system that would continue to make basic data publicly available while making the rest accessible only to accredited requestors who identify themselves, state their purpose and agree to be held accountable for appropriate use of the data..."
Whois - Wikipedia: WHOIS (pronounced as the phrase who is) is a query and response protocol that is widely used for querying databases that store the registered users or assignees of an Internet resource, such as a domain name, an IP address block, or an autonomous system, but is also used for a wider range of other information. The protocol stores and delivers database content in a human-readable format. The WHOIS protocol is documented in RFC 3912....
Mr. Baril, the EWG, and a dissenting opinion were the subject of a earlier Domain Mondo post: ICANN suppresses free speech
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2014-06-11
The Bull Market in dot COM Domain Names
Recently I received a newsletter from a domain name broker at Domain Holdings which raised the question "Are we in a bubble?" after noting (among many other things) that "Assets that used to be practically worthless, like NNNNN.com, suddenly started to have face value."
I had already begun to write a post about this, but I replied via email to Giuseppe, and what follows is an edited version of my email:
The Bull Market in Dot Com Domain Names Has Just Begun: Dot Com domain names are, in effect, like a global currency but unlike, for example, bitcoins, Dot Com domain names are completely legal, regulated, easy to buy and sell worldwide in multiple currencies, and form the foundation of the global marketplace -- the internet. For example, Chinese who have wealth but find it difficult to move their wealth outside of China (for safety, security, to diversify investments, minimize currency risks, etc.), are easily able to purchase Dot Com domain names -- the gold standard of domain names. They can even put their ownership under Whois Privacy. This is an IDEAL way for anyone in the world to hold and protect assets! ALL of the world's Central Banks are destroying the value of all of the world's currencies (but they cannot touch Dot Com domain names!). US stock markets are inflated, interest rates are artificially deflated, select real estate markets are already in a bubble again, commodity prices are falling because of the state of the global economy (particularly the construction market in China), and collectible art prices are exploding -- "where to invest" is a real problem for anyone with wealth.
ICANN has destroyed the value of the new gTLDs by flooding them into the domain name ecosystem -- no one will remember hundreds of domain extensions -- but they already know and use .com (and if they are outside the US, also their country code). If you are building a website and your market is global, or you are in the US, you better build on a Dot Com domain name OR you will be solely relying on a search engine, advertising, etc., to get any traffic to your site and, even then, you will still be bleeding traffic to the Dot Com domain name! Example: the US government's healthcare.gov with massive amounts of publicity and money spent in advertising and promotion, still bleeds unbelievable amounts of traffic to privately owned healthcare.com. [And you think you can do better than the US government with your cheapo new gTLD instead of a Dot Com domain name? LOL!] The Chinese, among others, "get this" and they want the "global market's gold standard" -- .com domain names -- this is why Xiaomi (the up-and-coming Chinese smartphone/tablet manufacturer) just bought and now uses (not redirects) mi.com for their global branding and internet website.
I had already begun to write a post about this, but I replied via email to Giuseppe, and what follows is an edited version of my email:
The Bull Market in Dot Com Domain Names Has Just Begun: Dot Com domain names are, in effect, like a global currency but unlike, for example, bitcoins, Dot Com domain names are completely legal, regulated, easy to buy and sell worldwide in multiple currencies, and form the foundation of the global marketplace -- the internet. For example, Chinese who have wealth but find it difficult to move their wealth outside of China (for safety, security, to diversify investments, minimize currency risks, etc.), are easily able to purchase Dot Com domain names -- the gold standard of domain names. They can even put their ownership under Whois Privacy. This is an IDEAL way for anyone in the world to hold and protect assets! ALL of the world's Central Banks are destroying the value of all of the world's currencies (but they cannot touch Dot Com domain names!). US stock markets are inflated, interest rates are artificially deflated, select real estate markets are already in a bubble again, commodity prices are falling because of the state of the global economy (particularly the construction market in China), and collectible art prices are exploding -- "where to invest" is a real problem for anyone with wealth.
ICANN has destroyed the value of the new gTLDs by flooding them into the domain name ecosystem -- no one will remember hundreds of domain extensions -- but they already know and use .com (and if they are outside the US, also their country code). If you are building a website and your market is global, or you are in the US, you better build on a Dot Com domain name OR you will be solely relying on a search engine, advertising, etc., to get any traffic to your site and, even then, you will still be bleeding traffic to the Dot Com domain name! Example: the US government's healthcare.gov with massive amounts of publicity and money spent in advertising and promotion, still bleeds unbelievable amounts of traffic to privately owned healthcare.com. [And you think you can do better than the US government with your cheapo new gTLD instead of a Dot Com domain name? LOL!] The Chinese, among others, "get this" and they want the "global market's gold standard" -- .com domain names -- this is why Xiaomi (the up-and-coming Chinese smartphone/tablet manufacturer) just bought and now uses (not redirects) mi.com for their global branding and internet website.
Bottom Line: the Dot Com domain names "bull market" has just begun, with lots and lots of room yet to grow and run -- I expect Dot Com domain name prices to increase exponentially from here in the aftermarkets. Why do you think Warren Buffett's office contacted Mike Berkens for a possible consultation about domain names? [This was disclosed by Mike on a domainsherpa.com show.] As more and more people (and corporations) with wealth (cash) understand this, Dot Com domain name prices will only increase. Google is getting ready to launch 180 satellites that will provide global internet service and add 3 billion consumers to the internet's "global market." What do you think this will do to Dot Com domain name prices?*
John Poole
Domain Mondo
June 11, 2014
*Disclaimer notice: As always, note the disclaimer below (bottom of web version page) or at the foregoing link.
Update: title of post revised May 25, 2015, to The Bull Market in dot COM Domain Names
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John Poole
Domain Mondo
June 11, 2014
*Disclaimer notice: As always, note the disclaimer below (bottom of web version page) or at the foregoing link.
Update: title of post revised May 25, 2015, to The Bull Market in dot COM Domain Names
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2014-06-10
New gTLD domain names, exorbitant prices, ICANN Incompetence
From the ICANN "you can't make this stuff up" department --
Takeaways From Internet Corporation for Assigned Names and Numbers (ICANN) 49 in Singapore | The National Law Review: "ICANN used the term "technical glitch" to excuse its delays in publication of TLD startup data cutting into the 30 days' notice that brand owners are supposed to receive prior to each new gTLD launch. In addition, the ICANN Contractual Compliance Department expressed an inability to take any remedial action against new gTLD applicants advertising exorbitant domain name prices to vitiate sunrise protections or pre-registration programs that sidestep fulsome trademark claims notices. Such practices are best evidenced by Vox Populi Registry Inc., an applicant for the .SUCKS gTLD, which plans to charge $25,000 for each premium sunrise registration."
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Takeaways From Internet Corporation for Assigned Names and Numbers (ICANN) 49 in Singapore | The National Law Review: "ICANN used the term "technical glitch" to excuse its delays in publication of TLD startup data cutting into the 30 days' notice that brand owners are supposed to receive prior to each new gTLD launch. In addition, the ICANN Contractual Compliance Department expressed an inability to take any remedial action against new gTLD applicants advertising exorbitant domain name prices to vitiate sunrise protections or pre-registration programs that sidestep fulsome trademark claims notices. Such practices are best evidenced by Vox Populi Registry Inc., an applicant for the .SUCKS gTLD, which plans to charge $25,000 for each premium sunrise registration."
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2014-06-09
Wharton School Marketing Professor says ICANN's New gTLD domain names are an "utter waste of time"
If you want to operate a domain name "cemetery" -- you know, a website that doesn't get much internet traffic -- one of ICANN's hundreds of new vanity gTLD domain names may be for you! The vast majority of ICANN's new gTLD domain names will be an "utter waste of time" says University of Pennsylvania Wharton School marketing professor Peter Fader, co-director of the Wharton Customer Analytics Initiative (source infra).
Domain Name Land Rush: More Room for Companies, Competition and Scam Artists » Knowledge@Wharton: “...“The suffix itself is not an outdated technology, but as more and more people go to mobile devices, the way of interacting with the Internet is moving [away] from URLs.”...Wharton marketing professor Stephen J. Hoch is likewise unconvinced by the potential of gTLDs as an enormous advance... “Moreover, with search and automatic filling in of email addresses, it is not clear that the brands, at least big brands, would be affected either. People are not really thinking about anything that comes after the period.” “I think we have all learned by now that you have to be creative with what’s to the left of the dot,” says Fader. “You can’t hide behind the right side of the dot as a lack of creativity to differentiate your brand... Fader acknowledges that given all the different ways markets and sectors work, “there must be some legitimate uses out there, but it will be a teeny, tiny fraction of suffixes to which that applies. For the vast majority, it will be an utter waste of time.”
An utter waste of time, and an unbelievable waste of money! (see: ICANN, new gTLD domain names, and the Law of Bad Ideas)
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Domain Name Land Rush: More Room for Companies, Competition and Scam Artists » Knowledge@Wharton: “...“The suffix itself is not an outdated technology, but as more and more people go to mobile devices, the way of interacting with the Internet is moving [away] from URLs.”...Wharton marketing professor Stephen J. Hoch is likewise unconvinced by the potential of gTLDs as an enormous advance... “Moreover, with search and automatic filling in of email addresses, it is not clear that the brands, at least big brands, would be affected either. People are not really thinking about anything that comes after the period.” “I think we have all learned by now that you have to be creative with what’s to the left of the dot,” says Fader. “You can’t hide behind the right side of the dot as a lack of creativity to differentiate your brand... Fader acknowledges that given all the different ways markets and sectors work, “there must be some legitimate uses out there, but it will be a teeny, tiny fraction of suffixes to which that applies. For the vast majority, it will be an utter waste of time.”
An utter waste of time, and an unbelievable waste of money! (see: ICANN, new gTLD domain names, and the Law of Bad Ideas)
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2014-06-08
Cryptowall ransom malware malvertising spreads
This is a follow-up to a story Domain Mondo reported on May 20th: Online Ads, Malware, Marketers, Placement Problems -- the story "has legs" --
We “will be paying no ransom,” vows town hit by Cryptowall ransom malware | Ars Technica: "....Contrary to reports that the Durham Police Department infection was the result of a malicious e-mail attachment, the RIG-fueled attacks Cisco is blocking are the result of malicious advertisements served on scores of websites, including altervista.org, apps.facebook.com, www.theguardian.com, and ebay.in. The US is the country seeing the most infected ads, followed by the UK. So-called malvertising is a scourge that uses authentic-looking ads served over legitimate networks and sites to either trick end users into clicking on malicious links or to push attack code that exploits vulnerabilities to surreptitiously install malware. "Until May 22, RIG appears to have been making use of both newly registered domains and compromised legitimate sites to both host its landing pages and serve its exploits, all from paths ending in 'proxy.php,'" the Cisco blog post stated. The rash of Cryptowall attacks came to light the same week that federal authorities seized a massive botnet used to spread CryptoLocker. The effects of Cryptowall on Durham were characterized as disruptive but not catastrophic...." -- read more at link above and at: https://blogs.cisco.com/security/rig-exploit-kit-strikes-oil
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We “will be paying no ransom,” vows town hit by Cryptowall ransom malware | Ars Technica: "....Contrary to reports that the Durham Police Department infection was the result of a malicious e-mail attachment, the RIG-fueled attacks Cisco is blocking are the result of malicious advertisements served on scores of websites, including altervista.org, apps.facebook.com, www.theguardian.com, and ebay.in. The US is the country seeing the most infected ads, followed by the UK. So-called malvertising is a scourge that uses authentic-looking ads served over legitimate networks and sites to either trick end users into clicking on malicious links or to push attack code that exploits vulnerabilities to surreptitiously install malware. "Until May 22, RIG appears to have been making use of both newly registered domains and compromised legitimate sites to both host its landing pages and serve its exploits, all from paths ending in 'proxy.php,'" the Cisco blog post stated. The rash of Cryptowall attacks came to light the same week that federal authorities seized a massive botnet used to spread CryptoLocker. The effects of Cryptowall on Durham were characterized as disruptive but not catastrophic...." -- read more at link above and at: https://blogs.cisco.com/security/rig-exploit-kit-strikes-oil
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2014-06-07
ICANN suppresses free speech
ICANN suppresses a privacy advocate’s dissent http://t.co/Hc9fW87teh
— IGP Alert (@IGPAlert) June 7, 2014
Chair of ICANN's EWG, Jean-Francois Baril, apparently doesn't believe in free speech or dissent (as is typical of ICANN's sicko culture) and has, in violation of all standards of multistakeholderism, freedom of speech, and common civility, suppressed a dissenting opinion by Canada's Stephanie Perrin:"In typical ICANN fashion, the EWG members were hand-picked by the board, and some accused it of being overly weighted toward brand protection interests; however, at the last minute ICANN did add Perrin to the EWG. Perrin, now a doctoral student at the University of Toronto, was once Director of Research and Policy in the Office of the Privacy Commissioner of Canada, and Director of Privacy Policy at Industry Canada."
"ICANN’s Expert Working Group (EWG) on Whois and privacy, which published its final report today, has unfortunately continued a long tradition of failing to find consensus between privacy advocates and business interests... In publishing its final report, the lone privacy advocate on the EWG, Stephanie Perrin of Canada, raised some serious concerns about how the EWG was violating basic data protection norms. Her objections were explained over a period of several days. Extreme pressure was put on Perrin to abandon her objections. In the end, she could not agree, and as is the norm, prepared a dissenting opinion. The dissent was provided on time, and the committee was told it would be three pages long. But the chair of the EWG, Jean-Francois Baril, is now suppressing this dissent. He has refused to include it in the report and is excoriating Perrin for not going along. So Mr. Baril is basically saying that you have no right to dissent, that real consensus is not necessary, and if you do dissent, the working group has no obligation to publish it along with the report. This means, however, that Mr Baril has failed. This is not a consensus report. Nothing really has changed in the last 14 years...."
So Domain Mondo will now publish what the anti-free speech thugs at ICANN are suppressing -- the dissent of Canada's Stephanie Perrin, in full:
Dissenting Report from Stephanie Perrin:
June 6, 2014
It has been an honor and a privilege to serve on the EWG for the past 16 months, and I am truly impressed at the work we have done, and the spirit of consensus that has enlivened our discussions on the complex matters we were tasked to address. This has been a tremendous amount of hard work, and my colleagues have worked selflessly, with weekly calls, research and reading, and many face to face meetings. Finding the correct balance between transparency, accountability, and privacy is never easy, especially in a global context with different cultures, legal regimes, and economic power. I am very proud of what we have achieved, so it is with great reluctance that I raise issues where I cannot agree with the consensus on some aspects of this report. I feel it is my responsibility, as one who was brought on the committee to provide data protection expertise, to point out some weakness in some of the provisions that we are recommending.
The EWG report is complex, and must be read in its entirety; sometimes it is quite hard to follow how things would actually be implemented, particularly if you are a reader who is not immersed in the arcane details of domain name registrations on a daily basis. There is nothing devious in that, the matters are very detailed and deciding which order to put them in, what topics ought to be addressed in which section, is not easy. The end result, however, is that one must follow a thread through the report to determine ultimate impact. The purpose of this appendix is to follow the thread of protection of the sensitive information of the average simple domain name registrant. Whether they be an individual, small company, or small organization, we need to see what happens, and how rights, whether legislated or simply claimed on the principle of fundamental fairness in the administration of a public good, are enforced. I regret to say that I am not happy with what I find when I follow that trail. I have tried to explain how these rights ought to be implemented and enforced, to those who are more familiar with their own areas of expertise both within the EWG and in the broader community, and this appendix is added in an attempt to help further clarify these issues. I am concerned that the rights and important interests of these individuals may not be effectively protected by the inter-related provisions which we have set out.
There are three basic outcomes where I cannot agree with the consensus.
The requirement to have a legal contact, where address and phone number are mandatory to provide, and published outside the gate, in the publically available data.
The default, if one is a simple registrant who does not want to hire a lawyer or other actor to assume the role of legal contact and publish their details in the RDS, to publishing registrant information, notably address and phone number in the RDS outside the gate.
The inclusion of a principle of consent (28), whereby a registrant may consent to the use or processing of her gated information for the permissible purposes enumerated for accredited actors behind the gate.
Let me provide some context around each of these points.
Firstly, these details appear in the section on purpose-based contacts, which proposes a new ecosystem of validated contacts. I support this, and the associated accountability mechanisms, whole-heartedly. I agree with the consensus view, that domain name registrants must be accountable for the use of the resource. Being a privacy advocate, I do not equate accountability with transparency of detailed personal or business information, I equate it with responsiveness. If a registrant fails to respond to serious issues, it is appropriate to expedite the action, depending on the issue, and contact the registrar to take action.
However, I understand the objective of our proposal of gated access to be the sheltering of customer data: the purpose of the gate is to screen out bad actors from harassing innocent registrants, deter identity theft, and ensure that only legitimate complaints arrive directly at the door of the registrants. It is also to protect the ability of registrants to express themselves anonymously. Placing all contact data outside the gate defeats certain aspects of having a gate in the first place. Obviously large companies are eager to publish their contact data, as it makes it easier for them to streamline requests and manage the actions over thousands of domain names. A simple registrant with a couple of domain names has entirely different needs and resources, and is unlikely to want to spend money hiring an ISP or Registrar to provide these contacts for them.
I whole-heartedly applaud the emphasis we have achieved in this report on the necessity of having privacy/proxy services in the RDS ecosystem, for both individuals and organizations. I do not believe that should be the only way an individual or small organization can avoid having their private information published. We have a principle that recommends providing resources for registrants who are economically disadvantaged, but it is not clear how we could implement that globally, particularly in developing economies where the need is likely greatest.
An additional context, is that we propose a rules engine that enforces jurisdiction, with respect to the privacy rights of individuals who are protected by personal data protection law. This is an ambitious and potentially very useful proposal, but it only protects individuals, and occasionally legal persons in some jurisdictions, and only where data protection is in place, and would find the presence of name, address and phone number in a public directory to be in conflict with data protection law. These are very important caveats. Not all data protection regimes would find, or have found, that directory information must be protected. Secondly, it is not clear enough for me how that rules engine would encode rights. Would it be based on precedents? My interpretation of the law? Your interpretation of the law? This is a difficult question and provides no certainty as to the outcome in the instances where I have cited my disagreement. A third problem with the rules engine, is that it proposes to address regimes with data protection law only….what happens to organizations that have a constitutional right to privacy for the purposes of free speech and freedom of association, such as in the United States? Finally, is it fair to individuals in jurisdictions where their countries have not enacted data protection law? Does ICANN, in the monopoly administration of a public resource, not have a responsibility to set standards on an ethical basis, based on sound best practice?
The two remedies then, I find inadequate for the reasons cited above:
Hire a privacy proxy/service provider, or proxy contact, if you do not want your contact data published in the public portion of the RDS
The rules engine will enforce data protection rights, and place this data behind the gate.
I am not confident that these will be effective as a means of allowing independent registrants to gate their name and contact information. We have indeed proposed another mitigation for this and other privacy-related problems in the privacy section. The EWG recommends that ICANN develop a privacy policy to govern the RDS. I am extremely pleased with this recommendation. It is my view, however, that it will not be a proper policy unless it governs the collection instrument, which can be found in the requirements set out in the 2013 RAA, and the escrow requirements, to be found in the same place. However, this is a magnificent step forward as far as I am concerned, and I believe once the PDP is struck to work on the policy, my arguments will be persuasive on the need to include the collection and retention instruments, as presented in the contract requirements. Once again, though, until this instrument is developed, and the actual enforcement mechanisms determined, it would be unwise to rely on its potential to reverse the clauses to which I am objecting.
I would like now to address the consent principle. It is my view that we cannot elevate one principle of data protection above the others, because they are inter-related. Consent must be read in the context of legitimacy of purpose, proportionality, rights to refuse, rights to withdraw consent, specificity of purpose and use, and so on. To offer individuals and organizations the opportunity to consent to the use of their sensitive, gated data, for all the permissible purposes, in my view can be read as providing blanket consent to accredited users behind the gate. It can be read as voluntarily giving up any privacy protection one might have expected under local law, and any right to select some purposes as opposed to others. It greatly simplifies one of the biggest problems we faced as a group in grappling with the concept of accrediting users only for certain specific purposes, but from a privacy perspective it greatly reduces the effectiveness of the gate as a privacy mechanism. Once again, if you understand the risks, you will hire a proxy service. From the perspective of an elite North American, this looks like a no-brainer, just hire a proxy.
However, we have a responsibility to examine this from the perspective of a global eco-system. We have now set up a system where accredited actors have access to inside data, others do not. We have labored long and hard in the group to ensure that the parameters of the RDS are flexible and allow individuals to apply for access beyond the gate to resolve specific problems and issues they encounter, but in fact the vast majority of end-users will be unlikely to make effective use of this right. I totally agree with my colleagues that the market will rush to provide this kind of service at low cost, but I flag it as an element to watch in this discussion.
I hope that this clarification serves to flag some issues that are important with respect to data protection. I would like to reiterate my strong support for this report. I believe this report, and the work that lies behind it, is an important contribution to the Whois evolution. I would stress however, that we are setting up the ecosystem to manage personal information globally. Different cultures have different norms with respect to the transparency of their citizens, and it is appropriate to err on the side of protection of information. I would therefore conclude with the following recommendations:
Gate the legal contact information for individuals and organizations who wish to protect their private data
Consent needs to be meaningful, specific, explicit and for legitimate purposes. A blanket consent as envisioned here does not meet these requirements
Privacy policy at a mature level needs to be developed to inform the other policies referred to here. It cannot come in as the caboose at the end of the train.
I appreciate the opportunity to make these comments.
Stephanie Perrin
Follow @DomainMondo
Seguir a @DomainMondo
June 6, 2014
It has been an honor and a privilege to serve on the EWG for the past 16 months, and I am truly impressed at the work we have done, and the spirit of consensus that has enlivened our discussions on the complex matters we were tasked to address. This has been a tremendous amount of hard work, and my colleagues have worked selflessly, with weekly calls, research and reading, and many face to face meetings. Finding the correct balance between transparency, accountability, and privacy is never easy, especially in a global context with different cultures, legal regimes, and economic power. I am very proud of what we have achieved, so it is with great reluctance that I raise issues where I cannot agree with the consensus on some aspects of this report. I feel it is my responsibility, as one who was brought on the committee to provide data protection expertise, to point out some weakness in some of the provisions that we are recommending.
The EWG report is complex, and must be read in its entirety; sometimes it is quite hard to follow how things would actually be implemented, particularly if you are a reader who is not immersed in the arcane details of domain name registrations on a daily basis. There is nothing devious in that, the matters are very detailed and deciding which order to put them in, what topics ought to be addressed in which section, is not easy. The end result, however, is that one must follow a thread through the report to determine ultimate impact. The purpose of this appendix is to follow the thread of protection of the sensitive information of the average simple domain name registrant. Whether they be an individual, small company, or small organization, we need to see what happens, and how rights, whether legislated or simply claimed on the principle of fundamental fairness in the administration of a public good, are enforced. I regret to say that I am not happy with what I find when I follow that trail. I have tried to explain how these rights ought to be implemented and enforced, to those who are more familiar with their own areas of expertise both within the EWG and in the broader community, and this appendix is added in an attempt to help further clarify these issues. I am concerned that the rights and important interests of these individuals may not be effectively protected by the inter-related provisions which we have set out.
There are three basic outcomes where I cannot agree with the consensus.
The requirement to have a legal contact, where address and phone number are mandatory to provide, and published outside the gate, in the publically available data.
The default, if one is a simple registrant who does not want to hire a lawyer or other actor to assume the role of legal contact and publish their details in the RDS, to publishing registrant information, notably address and phone number in the RDS outside the gate.
The inclusion of a principle of consent (28), whereby a registrant may consent to the use or processing of her gated information for the permissible purposes enumerated for accredited actors behind the gate.
Let me provide some context around each of these points.
Firstly, these details appear in the section on purpose-based contacts, which proposes a new ecosystem of validated contacts. I support this, and the associated accountability mechanisms, whole-heartedly. I agree with the consensus view, that domain name registrants must be accountable for the use of the resource. Being a privacy advocate, I do not equate accountability with transparency of detailed personal or business information, I equate it with responsiveness. If a registrant fails to respond to serious issues, it is appropriate to expedite the action, depending on the issue, and contact the registrar to take action.
However, I understand the objective of our proposal of gated access to be the sheltering of customer data: the purpose of the gate is to screen out bad actors from harassing innocent registrants, deter identity theft, and ensure that only legitimate complaints arrive directly at the door of the registrants. It is also to protect the ability of registrants to express themselves anonymously. Placing all contact data outside the gate defeats certain aspects of having a gate in the first place. Obviously large companies are eager to publish their contact data, as it makes it easier for them to streamline requests and manage the actions over thousands of domain names. A simple registrant with a couple of domain names has entirely different needs and resources, and is unlikely to want to spend money hiring an ISP or Registrar to provide these contacts for them.
I whole-heartedly applaud the emphasis we have achieved in this report on the necessity of having privacy/proxy services in the RDS ecosystem, for both individuals and organizations. I do not believe that should be the only way an individual or small organization can avoid having their private information published. We have a principle that recommends providing resources for registrants who are economically disadvantaged, but it is not clear how we could implement that globally, particularly in developing economies where the need is likely greatest.
An additional context, is that we propose a rules engine that enforces jurisdiction, with respect to the privacy rights of individuals who are protected by personal data protection law. This is an ambitious and potentially very useful proposal, but it only protects individuals, and occasionally legal persons in some jurisdictions, and only where data protection is in place, and would find the presence of name, address and phone number in a public directory to be in conflict with data protection law. These are very important caveats. Not all data protection regimes would find, or have found, that directory information must be protected. Secondly, it is not clear enough for me how that rules engine would encode rights. Would it be based on precedents? My interpretation of the law? Your interpretation of the law? This is a difficult question and provides no certainty as to the outcome in the instances where I have cited my disagreement. A third problem with the rules engine, is that it proposes to address regimes with data protection law only….what happens to organizations that have a constitutional right to privacy for the purposes of free speech and freedom of association, such as in the United States? Finally, is it fair to individuals in jurisdictions where their countries have not enacted data protection law? Does ICANN, in the monopoly administration of a public resource, not have a responsibility to set standards on an ethical basis, based on sound best practice?
The two remedies then, I find inadequate for the reasons cited above:
Hire a privacy proxy/service provider, or proxy contact, if you do not want your contact data published in the public portion of the RDS
The rules engine will enforce data protection rights, and place this data behind the gate.
I am not confident that these will be effective as a means of allowing independent registrants to gate their name and contact information. We have indeed proposed another mitigation for this and other privacy-related problems in the privacy section. The EWG recommends that ICANN develop a privacy policy to govern the RDS. I am extremely pleased with this recommendation. It is my view, however, that it will not be a proper policy unless it governs the collection instrument, which can be found in the requirements set out in the 2013 RAA, and the escrow requirements, to be found in the same place. However, this is a magnificent step forward as far as I am concerned, and I believe once the PDP is struck to work on the policy, my arguments will be persuasive on the need to include the collection and retention instruments, as presented in the contract requirements. Once again, though, until this instrument is developed, and the actual enforcement mechanisms determined, it would be unwise to rely on its potential to reverse the clauses to which I am objecting.
I would like now to address the consent principle. It is my view that we cannot elevate one principle of data protection above the others, because they are inter-related. Consent must be read in the context of legitimacy of purpose, proportionality, rights to refuse, rights to withdraw consent, specificity of purpose and use, and so on. To offer individuals and organizations the opportunity to consent to the use of their sensitive, gated data, for all the permissible purposes, in my view can be read as providing blanket consent to accredited users behind the gate. It can be read as voluntarily giving up any privacy protection one might have expected under local law, and any right to select some purposes as opposed to others. It greatly simplifies one of the biggest problems we faced as a group in grappling with the concept of accrediting users only for certain specific purposes, but from a privacy perspective it greatly reduces the effectiveness of the gate as a privacy mechanism. Once again, if you understand the risks, you will hire a proxy service. From the perspective of an elite North American, this looks like a no-brainer, just hire a proxy.
However, we have a responsibility to examine this from the perspective of a global eco-system. We have now set up a system where accredited actors have access to inside data, others do not. We have labored long and hard in the group to ensure that the parameters of the RDS are flexible and allow individuals to apply for access beyond the gate to resolve specific problems and issues they encounter, but in fact the vast majority of end-users will be unlikely to make effective use of this right. I totally agree with my colleagues that the market will rush to provide this kind of service at low cost, but I flag it as an element to watch in this discussion.
I hope that this clarification serves to flag some issues that are important with respect to data protection. I would like to reiterate my strong support for this report. I believe this report, and the work that lies behind it, is an important contribution to the Whois evolution. I would stress however, that we are setting up the ecosystem to manage personal information globally. Different cultures have different norms with respect to the transparency of their citizens, and it is appropriate to err on the side of protection of information. I would therefore conclude with the following recommendations:
Gate the legal contact information for individuals and organizations who wish to protect their private data
Consent needs to be meaningful, specific, explicit and for legitimate purposes. A blanket consent as envisioned here does not meet these requirements
Privacy policy at a mature level needs to be developed to inform the other policies referred to here. It cannot come in as the caboose at the end of the train.
I appreciate the opportunity to make these comments.
Stephanie Perrin
Follow @DomainMondo
Seguir a @DomainMondo
2014-06-06
Is It ICANN's Job To Market New gTLD Domain Names?
Has ICANN been conflicted, co-opted, and corrupted by its new gTLD domain names program? Is ICANN now, in effect, a joint venture partner with new gTLD registries and registrars -- "Pay us (ICANN) $185,000 up front (plus renewal fees) and we (ICANN) will help YOU market your new gTLD domain names that WE have authorized YOU to register (sell) for a PROFIT?"
"conflict" - an incompatibility between two or more purposes, principles, or interests
"co-opt" - divert to or use in a role different from the usual or original one
"corrupt" - change or debase by making alterations
"Marketing" - "Marketing is the process of communicating the value of a product or service to customers, for the purpose of selling that product or service." (source: Wikipedia)
"New gTLDs" - New generic Top-Level Domain Names authorized by ICANN to be offered for registration [sold] by Registries and Registrars.
Recently a domainer blogger asked: Who is responsible for new gTLD marketing? The answers from members of the domain name industry (registrars, registries, affiliated companies) included:
"... ICANN, the registries... registrars..."
"... I think the “we” here is primarily Registries, Registrars, the DNA [Domain Name Association] and ICANN..."
"Now that new gTLDs are here, I’ve heard people suggest that ICANN, the registries, and the registrars should be responsible for marketing them. This is a correct suggestion."
“'The public at large, consumers and businesses, would be better served by no expansion or less expansion' of domains" said Jon Leibowitz, former chairman of the US Federal Trade Commission in the New York Times."
"conflict" - an incompatibility between two or more purposes, principles, or interests
"co-opt" - divert to or use in a role different from the usual or original one
"corrupt" - change or debase by making alterations
"Marketing" - "Marketing is the process of communicating the value of a product or service to customers, for the purpose of selling that product or service." (source: Wikipedia)
"New gTLDs" - New generic Top-Level Domain Names authorized by ICANN to be offered for registration [sold] by Registries and Registrars.
"... ICANN, the registries... registrars..."
"... I think the “we” here is primarily Registries, Registrars, the DNA [Domain Name Association] and ICANN..."
"Now that new gTLDs are here, I’ve heard people suggest that ICANN, the registries, and the registrars should be responsible for marketing them. This is a correct suggestion."
Really? Is marketing new gTLD domain names what ICANN, the Internet Corporation for Assigned Names and Numbers, "a nonprofit corporation that coordinates the Internet's global domain name system" [Wikipedia] is supposed to be doing? Is marketing new gTLD domain names within ICANN's purpose or mission as expressed within its articles of incorporation, bylaws, affirmation of commitments, or applicable California or federal (US) law?
Not only is "marketing domain names" NOT within ICANN's purpose and mission, but to do such "marketing" for for-profit companies appears to be a violation of the ICANN corporate instruments and applicable state and federal laws, for example:
Not only is "marketing domain names" NOT within ICANN's purpose and mission, but to do such "marketing" for for-profit companies appears to be a violation of the ICANN corporate instruments and applicable state and federal laws, for example:
Exemption Requirements - 501(c)(3) Organizations: "... The organization must not be organized or operated for the benefit of private interests, and no part of a section 501(c)(3) organization's net earnings may inure to the benefit of any private shareholder or individual. If the organization engages in an excess benefit transaction with a person having substantial influence over the organization, an excise tax may be imposed on the person and any organization managers agreeing to the transaction. Section 501(c)(3) organizations are restricted in how much political and legislative (lobbying) activities they may conduct...."Some might argue that ICANN has already violated one or more of the legal provisions cited above, but at a minimum, the world of ICANN has become so dysfunctional that some ICANN insiders -- registries, registrars, and other for-profit domain industry members -- actually believe ICANN is supposed to do the "marketing" of the new gTLD domain names for them-- for the registries and registrars which were authorized by ICANN to offer said new gTLD domain names for registration!
Somehow, in the world of ICANN, the interests of the regulated (registries and registrars) and the regulator (ICANN) have become one, at least in the minds of many. Is this what happens when a non-profit corporation, lacking proper oversight, transparency and accountability, becomes dominated by insiders and the special interests of the commercial, for-profit domain name industry it is supposed to be regulating and governing; when ICANN's Chief Strategy Officer (and architect of the new gTLDs program) resigns due to a conflict of interest (the particulars of which were never disclosed to the global multistakeholder community), and then becomes the Executive Director of the Domain Name Association, a lobbying group of that same for-profit domain name industry?
Is this why that same Domain Name Association has now jumped into the middle of ICANN's new gTLD auction process, to grab the money for itself and "marketing?"-- Domain Name Association: "The proceeds will be distributed as follows: First: Fees for the auction provider will be paid. Second: Disbursements, if any, will be made to auction participants. Third: Optional membership fees in the DNA will be paid. All remaining proceeds will go to the DNA. The auction winner will determine how those proceeds are allocated between funding TLD marketing and awareness campaigns and funding other DNA industry development efforts."
Sounds like ICANN should just shut down and turn everything over to DNA -- the Domain Name Association! Or more likely, ICANN will just contract with the DNA to perform all of ICANN's functions!
Is this why that same Domain Name Association has now jumped into the middle of ICANN's new gTLD auction process, to grab the money for itself and "marketing?"-- Domain Name Association: "The proceeds will be distributed as follows: First: Fees for the auction provider will be paid. Second: Disbursements, if any, will be made to auction participants. Third: Optional membership fees in the DNA will be paid. All remaining proceeds will go to the DNA. The auction winner will determine how those proceeds are allocated between funding TLD marketing and awareness campaigns and funding other DNA industry development efforts."
Sounds like ICANN should just shut down and turn everything over to DNA -- the Domain Name Association! Or more likely, ICANN will just contract with the DNA to perform all of ICANN's functions!
"I really can’t see a legitimate upside where new benefits [of the new gTLDS] outweigh costs, and everyone I mention this to feels the same way. People just shake their heads. It’s all about the money. They [ICANN] are creating these extensions because they can." University of Pennsylvania Wharton School marketing professor Peter Fader, co-director of the Wharton Customer Analytics Initiative. (source: Knowledge@Wharton, emphasis added)
Esther Dyson On New Top-Level Domains: “There Are Huge Trademark Issues” | TechCrunch: "... we are not running out of domains. This is a “way for registries and registrars to make money,” says Dyson. She also points out that “there are huge trademark issues. I just think it is offensive... It will create a lot of litigation.”" [see: Esther Dyson Told ICANN new gTLDs were a mistake in 2011 (video)]
Tim Berners-Lee: "....when a decision is taken about a possible new top-level domain, ICANN's job is to work out, in a transparent and accountable manner, whether it is really in the best interest of the world as a whole, not just of those launching the new domain. It also means that ICANN's use of the funds should be spent in a beneficent way...."
Memo to ICANN: money spent on "marketing new gTLDs" is NOT a "beneficent way."
Esther Dyson On New Top-Level Domains: “There Are Huge Trademark Issues” | TechCrunch: "... we are not running out of domains. This is a “way for registries and registrars to make money,” says Dyson. She also points out that “there are huge trademark issues. I just think it is offensive... It will create a lot of litigation.”" [see: Esther Dyson Told ICANN new gTLDs were a mistake in 2011 (video)]
Tim Berners-Lee: "....when a decision is taken about a possible new top-level domain, ICANN's job is to work out, in a transparent and accountable manner, whether it is really in the best interest of the world as a whole, not just of those launching the new domain. It also means that ICANN's use of the funds should be spent in a beneficent way...."
Memo to ICANN: money spent on "marketing new gTLDs" is NOT a "beneficent way."
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