News Review | Caveat Emptor: ICANN & New gTLD Domain Names

Domain Mondo's weekly review of internet domain news:

Features • 1) New gTLD Domain Name Registrants Caveat Emptor: ICANN & New gTLD Domain Names, 2) Tweets of the Week, 3) ICANN Accountability Work Stream 2 slippage, 4) Names, Domains & Trademarks: A Brave New World Without Sunrises or the TMCH? 5) ICYMI Internet Domain News: We Need A New Internet and the IETF is a Mess, 6) Q1 2017 Earnings Season: Qualcomm April 19, 7) Most Popular.

1) Caveat Emptor Registrants: ICANN Says New gTLDs' Domain Names May Not Work As Expected on the Internet--

"WTF ICANN?"

"1.2 Technical Feasibility of String. While ICANN has encouraged and will continue to encourage universal acceptance of all top-level domain strings across the Internet, certain top-level domain strings may encounter difficulty in acceptance by ISPs and webhosters and/or validation by web applications. Registry Operator shall be responsible for ensuring to its satisfaction the technical feasibility of the TLD string prior to entering into this Agreement."--ICANN Base Registry Agreement (pdf), updated 09 January 2014 (emphasis added).

ICANN press release April 11, 2017: "... According to one study, 13 percent of websites reject new domain names with more than three letters [in the TLD (top-level domain)] ... many applications still do not accept the new domains [new gTLD domain names]. Universal Acceptance [UA] has progressed [even] less for IDNs than for gTLDs ..." (emphasis added) (Editor's note: ICANN has known about this UA problem since at least 2003 and yet the greedy, grossly negligent, and incompetent ICANN decided to proceed with its new gTLDs program, collect the money, and delegate over 1200 new gTLDs knowing they would "break stuff," without any disclosures or warnings to the general public or domain name registrants!)

Add to the above the fact that ICANN's new gTLDs come with no limitations as to future price increases to consumers (domain name registrants).  Unlike .COM domain names, that shiny new gTLD domain name that cost you $XX this year to register could cost you $XX,000 next year to renew, and ICANN is in the process of deleting the requirement that new gTLD registry operators notify ICANN about price increases--better not put your new gTLD domain name on "auto-renew."

"ICANN is just a scam and the entire industry is based on monopolistic fraud with DC payoffs."--Mike Mann, domain name registrant, March 30, 2017.

How did ICANN come to screw up its new gTLDs program so badly? There's plenty of blame to go around--inept ICANN leadership compounded by rampant conflicts of interest, incompetence, and cronyism, the effects of which continue to this day, but if I had to choose a single point failure it would be ICANN's decision to not follow the advice they were given by the U.S. Department of Justice Antitrust Division (pdf) via the U.S. Department of Commerce (NTIA) (pdf) in December, 2008:

U.S. Dept. of Justice Antitrust Division advice to ICANN (Dec 8, 2008), supra, p.2

See also on Domain Mondo: Global Public Interest: Why ICANN Will Always Be A #FAIL and New gTLDs Failing, ICANN58 Ends, ICANN in La La Land.

2) Tweets of the Week: 
(a) @DomainKing on ICANN's new gTLDs:

Remember one thing, there was no clamor by a single consumer on earth for new extensions. They don't care. Never will. #newgTLDS #Domains

— Rick Schwartz (@DomainKing) April 10, 2017

(b) @SwiftOnSecurity on new gTLD .TOP:

I'm not sure what ICANN is doing, but .top is so bad that the friggen registrar is blacklisted in our Palo Alto when I try to go there.

— SwiftOnSecurity (@SwiftOnSecurity) April 12, 2017

Editor's note: What's ICANN doing? Nothing but collecting the money--.TOP is the second largest new gTLD in registrations--mostly in China (78%)--having a 15.4% market share among all new gTLDs.

3) ICANN Accountability-Work Stream 2 slippage, March 2017 status (updated 10 Apr 2017):

Note: Jurisdiction subgroup (see below), will miss its target date for completion of work. 3 other subgroups--Diversity, Ombuds Office, and Review of the CEP--are "behind schedule:"

Above: excerpt from Activity Dashboard embedded in full further below

CCWG Plenary,
I have attached a "discussion draft" of the Jurisdiction Subgroup's Revised Work Plan and Schedule.  While this was first reviewed at the Subgroup's meeting earlier today, it was based on earlier discussions in the Subgroup.--Greg Shatan, Rapporteur, April 12, 2017  --[see embed below, highlighting added]

• CCWG-WS2 public mail list: http://mm.icann.org/pipermail/accountability-cross-community/2017-April/013888.html
• The WS2-jurisdiction April 2017 Archive by date
• http://mm.icann.org/pipermail/ws2-jurisdiction/
• [Ws2-jurisdiction] Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 26 | 11 April 2017: Next meeting 18 April 1900 UTC

CCWG-Accountability WS2 Activity Dashboard updated 10 April 2017:

4) Names, Domains & Trademarks

• A Brave New World Without Sunrises or the TMCH?--Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group | ICANN.org--see mail list topics here. 

• Registrar, Registry, Domain Name…A Quick Primer… | Buchanan Ingersoll & Rooney PC | JDSupra.com: "... “What other documentation would be part of a domain name transfer (or sale)?” Excellent point. Beyond the processes above, if you are transferring a domain name to or from a third party, we generally recommend the parties enter into a Domain Name Transfer and Assignment Agreement that specifies domain to be transferred, the consideration to be paid between the parties (and when such amounts are paid), and contains at least three key concepts (sample wording for each is provided below) ..."

• India's Growing Internet Penetration and the Power of .COM by Prakhar Bindal | businessworld.in 12 Apr 2017: "So, even if you need to pay a little extra to get the domain name of your choice, it is almost always worth it. India’s growing online penetration spells a world of opportunity for Indian small businesses ... Choosing the right domain extension also matters. 79 percent of the SMBs in India currently prefer .com over other TLDs. Trust and the need for a professional image are the primary reasons driving this preference. This is in line with the global trend, where .com remains the most widely used TLD across the world ..."

• CEP and IRP Status Update – 14 April 2017 | ICANN.org  (pdf)

• TICK DIFFERENT – But Apparently Not All That Different? | Winthrop & Weinstine, P.A. | JDSupra.com: "... Swiss watchmaker Swatch AG finds itself embroiled in another trademark dispute with Apple, Inc. – this time, for the trademark TICK DIFFERENT. Swatch applied for the trademark in Switzerland, which Apple has challenged before the Swiss Federal Administrative Court. Apple, you may recall, coined the slogan THINK DIFFERENT in connection with a 1997 ad campaign ..."

• Trade Mark Scams - Beware of Unofficial Notices | Lexology.com

• Christian Dior sues more Chinese websites for selling fakes | SecuringIndustry.com

• No False Advertising Where There Is No Injury or Statements Are Opinions | McDermott Will & Emery | JDSupra.com: citing Verisign, Inc. v. XYZ.com LLC, Case No. 15-2526 (4th Cir., Feb. 8, 2017).

5)  ICYMI Internet Domain News 

• We Urgently Need a New Internet | circleid.com:  "... Unfortunately however, the current internet cannot be fixed. So we need a new one. My colleague Martin Geddes has written an excellent article on why the old net is broken and why it can't be fixed ..."
• Mend, Don't End, the IETF | circleid.com: "First things first: Martin is right. The IETF is a mess ..."
• The benefits and harms of e-commerce on competition law | Dentons | JDSupra.com
• DDoS attacks abusing exposed LDAP servers on the rise | InfoWorld.com: "Abusing the vulnerability could generate a "DDoS wildfire," Ixia's Murarasu said. It's also easy for attackers to find BIND servers that can be abused because all they have to do is set up a malicious nameserver to send a response and scan the internet for nameservers that respond with a large query."
• Why HTTPS Won't Keep Your Internet Usage Habits Secret | Inc.com: HTTPS will not protect you from an ISP that wants to sell information about your Internet usage habits.
• DDoS attack takes out Melbourne IT DNS servers | arnnet.com.au
• Wordpress hard pressed by malicious javascript and trojans | scmagazine.com
• Recognizing Access to the Internet as a “Basic Need,” Rejecting Blanket Bans on Internet Use, and Raising Questions as to the Scope of Monitoring Personal Computers | Wilentz, Goldman & Spitzer P.A. | JDSupra.com
• Beware ICANN Groupthink: "Groupthink is when a group of individuals on a project become overly insular and fail to rely on outside thinking or fresh perspective.--Blattel Communications | JDSupra.com.

6) Q1 2017 Earnings Season coverage on Domain Mondo this coming week:

Qualcomm NASDAQ: QCOM (Domain: qualcomm.com) --Apr 19, 2017, 4:45pm EDT Qualcomm Q2 FY17 Earnings Conference Call--this Domain Mondo coverage due to pending Apple vs Qualcomm litigation.

See also: Why We Think We’re Better Investors Than We Are | NYTimes.com: "Studies have revealed significant overconfidence in the judgments of scientists, lawyers, engineers, doctors and those in other professions ..."

7) Most popular post (# of pageviews Sun-Sat) this past week on DomainMondo.com: News Review | ICANN & Its New gTLDs: Pedophilia's Best New Friends?

-- John Poole, Editor, Domain Mondo 

feedback & comments via twitter @DomainMondo
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DISCLAIMER

Why the ICANN Board Does NOT Support the Single Member Model

Why doesn't the ICANN Board of Directors support the Single Member Model (SMM or CMSM), which was proposed in CCWG-Accountability's 2nd draft Report?

Keith Drazek, CCWG participant, Chair of the ICANN Registries Stakeholder Group, and Director of Policy for Verisign, Inc. (but not an ICANN Board Member), summarized the reasons on the CCWG-Accountability mail list, which provides a good summary of what listening CCWG members and participants have read, heard and understood. As Domain Mondo has previously noted, some on the CCWG, unfortunately, appear not to be listening (if they ever did), but are close-minded, stuck in groupthink and their collective sunk cost bias, looking to just grab the power they think may be available for exploit in the Single Member Model.

Below is Keith Drazek's summary of what he has read, heard and understood as the "ICANN Board's position," which he shared on the CCWG mail list on September 30, 2015:

"In no particular order, my interpretation of the Board's written comments, what we heard in Los Angeles and from Fadi yesterday is:

-- Introducing a different governance structure, i.e. membership, is new, untested, and cannot be proven to resist capture in the limited time available to meet the September 2016 date.

-- Shifting authority from the Board to an untested membership body is potentially destabilizing and will be difficult or impossible to sell as not introducing risk at a delicate time.

-- If we're going to shift authority, we must also shift a commensurate level of accountability, and the current SOs and ACs do not have sufficient accountability at this time.

-- ICANN and its SOs/ACs need to be safe from capture from outside and from within; empowering the SOs and ACs without clear safeguards is problematic.

-- Concentrating power in a new "sole membership" body is not balanced if it doesn't include all community members, and two groups (SSAC and RSSAC) have said they want to remain advisory.

-- Shifting from consensus-based decision-making to reliance on a voting structure is not consistent with the multi-stakeholder model.

-- The CCWG recommendation is too complex and difficult to explain/understand, so we need to make smaller, incremental changes that are more easily implemented and understood.

-- A recommendation requiring a substantial governance restructuring will suggest that ICANN is currently broken -- a politically risky message going into the transition.

"I'm obviously not in a position to speak for the Board, but that's my non-legalistic reading of the concerns. I'd be happy to be corrected if my interpretation is off-base."--Keith Drazek

Seun Ojedeji, CCWG participant and Non-Commercial Users (NCUC) stakeholder, in response to the above, posted: "Thanks for this, and just for record, the list [above] is what I can naturally add my +1 to in its entirety. Every points are critical and the last is even more critical than any other one."

Later, Keith Drazek also posted: "And just for the record, I was not advocating or supporting the points, just pointing out what will need to be addressed and/or resolved in the next iteration of our proposal."

See also on Domain Mondo: 

• ICANN Board Does NOT Support CCWG Proposed Membership Model Sep 27, 2015
• China (CAICT) Objects to ICANN CCWG Accountability 2nd Draft Proposal Sep 24, 2015
• IANA Transition, ICANN Accountability, "Has Always Been About POWER" Oct 1, 2015
• Only 19 of 90 Comments Support ICANN Accountability [CCWG 2nd draft] Proposal Overall Sep 22, 2015
• ICANN CCWG-Accountability Co-Chair Comments on the Public Comments Sep 15, 2015

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DISCLAIMER

IANA Transition, ICANN Accountability, "Has Always Been About POWER"

How to capture ICANN: "The first thing we do, let's spill all the Board members."*

*With apologies to William Shakespeare: Shakespeare's line ''The first thing we do, let's kill all the lawyers,'' was stated by Dick the Butcher in ''Henry VI,'' Part II, act IV, Scene II, Line 73. Dick the Butcher was a follower of the rebel Jack Cade, who thought that if he disturbed law and order, he could become king. Shakespeare intended it as a compliment to attorneys and judges who instill justice in society. (source)

"... At least the USG (US government) offers some accountability. ICANN's primary active stakeholders are businesses making money off the DNS; most users are too busy elsewhere to pay much attention..."--Esther Dyson, ICANN's founding Chairman, Sept 22, 2015

"Sole Member given reserved power under Bylaws to override Board decision directly, regardless of Board fiduciary duties." - Legal counsel for CCWG-Accountability (pdf) opinion on 2nd draft

"WS1 has always been about power"--Jonathan Zuck, CCWG-Accountability participant, infra 

The biggest problem that the global multistakeholder community (a/k/a the global internet community which is a lot larger and broader than just ICANN's relatively small "stakeholder community"), has right now is that so many members and participants comprising the CCWG-Accountability are engrossed in their own groupthink that they apparently have not taken the time to actually read and analyze all the public comments to their own "fundamentally flawed" 2nd Draft Report which is supported overall by only 19 out of 90+ comments. If you read the CCWG mail list regularly, you will discover that many, if not most, CCWG members are actually operating under the delusion that the global multistakeholder community supports their proposed "power grab." 

Indicative of this state of "denial" or what might be called ignorant arrogance among CCWG-accountability members and participants are the remarks made on the CCWG public mail list by Philip Corwin, who represents a group known as the "Internet Commerce Association," of which major supporters include new gTLDs registry operator Donuts, and other domain name industry "players." Here's an excerpt from Corwin's response to Domain Mondo's post China (CAICT) Objects to ICANN CCWG Accountability 2nd Draft Proposal:

"If the CCWG Proposal is a "power grab" then it's the sorriest excuse for one I've ever seen. It is almost exclusively a proposal for greater defensive rights in reaction to ICANN Board/corporate actions, and would hardly put "vested self-interested special interests ("ICANN stakeholders" or "lobbyists")" in charge of the enterprise." -- Phil Corwin, September 25, 2015 

I suggest Mr. Corwin, (and all other CCWG members and participants), take the time to read carefully all the comments to the 2nd draft report and then take note of the following post on the CCWG mail list by the President of the Association for Competitive Technology (ACT), after which, hopefully, they might actually be more "informed and enlightened" and less consumed by their own "ignorant arrogance"--

"WS1 has always been about power and WS2 about implementation. WS1 was never going to be complete and, for that matter, WS2 won’t ever be complete either. That said, if we have the power to spill the board with relative ease, we can easily reconvene, flesh out the member model, submit it to the board and spill them if they aren’t constructive. We don’t need to worry about deadlines, the Congress, NTIA, etc. the whole point of WS1 is to ensure the capability to do just this." Jonathan Zuck, President of ACT and CCWG participant, September 29, 2015 (emphasis added)

Clearly and succinctly said Mr. Zuck! Sounds like a neat way to hijack or supplant ICANN Board authority and bypass any encumbering "fiduciary duties." The use of the word "constructive" above is clearly a euphemism for "submissive." It's all about the "power." The problem, as noted, is that the mostly profit-seeking, self-interested ICANN stakeholders, or "lobbyists," do not have the ICANN Board of Directors' fiduciary duties to the global internet community, nor the fiduciary duty to operate in the "global public interest." By their own self-admission, most ICANN stakeholders are self-seeking, self-interested, profit-making individuals and enterprises, who are primarily interested in their own "agendas" not what is in the "global public interest." That job is usually left to either governments, trustees, or a carefully selected Board of Directors held to fiduciary standards. While ICANN stakeholders should have input into ICANN policy-making, (and I know this may come as a "shock" to some of those stakeholders), they are hardly "infallible." Of course, directors, even though held to fiduciary standards, can still, from time to time, "fail," which is why "enhanced ICANN accountability," in the absence of US government oversight, needs to have "means or methods" whereby any member of the global internet community can seek redress of a Board decision, action, or adopted ICANN policy, which violates ICANN's articles, bylaws, or the Board's fiduciary duties to the global multistakeholder community and the global public interest. The ICANN Board says they agree and have offered suggested "means or methods" by which such redress can be provided. Other accountability "enhancements" or requirements, including, for example, transparency (e.g., record requests etc.), can easily be provided to any member of the global internet community by having appropriate provisions in ICANN's bylaws, none of which requires implementation of the proposed Single Member Model (SMM or CMSM) which, understandably, the ICANN Board does not support.

(Updated October 1, 2015)

-- John Poole, Editor, Domain Mondo

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DISCLAIMER