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[ga] Comments submitted to New gTLDs Evaluation team : Section 1

Title: Help
This is a copy of my comments, submitted to Miriam Sapiro and Sebastien Bachollet:

gTLD Evaluation


Interview with Mr. Richard Henderson: Policy and Legal Issues



In response to the questions at the foot of this Interview, I am submitting the following remarks in an effort to represent the perspective of the ordinary internet user with regard to the launch of the previous round of New gTLDs and lessons to be learned for the future.


Introduction: My name is Richard Henderson of Berkhamsted in the United Kingdom. I am a 50-year-old teacher, with experience both as a Headmaster and as a Prison Governor. I am married with three children and I became aware of the New gTLDs when I decided to try to acquire some of the new domains for personal interest websites, on a non-commercial basis. I would categorise myself therefore as an ordinary internet user and consumer with no “inside” involvement in the domain distribution industry and no preconceived views about ICANN or any of the Registries or Registrars : quite simply, I did not even know about ICANN in 1999, and was unaware of the distinction between Registry and Registrar.


Background: When the new domains in .info and .biz were announced, many consumers like myself saw the chance to acquire a favoured name which had already been taken in .com and .net. ICANN made it clear that charged pre-registrations to ‘book up’ a registrar to try to acquire a name in the Landrush were inappropriate, but almost all registrars ignored this advice, recognizing the opportunity to make a profit from a product (an application for a name) which offered no guarantee that the name would actually be acquired. In most cases, statistically, these sold pre-registrations were “money for nothing” as far as registrars were concerned. A few registrars later re-imbursed certain categories of customers for unsuccessful applications, but the majority did not. Like many other consumers, I chose to buy some pre-registrations with the clear understanding that, although there was no guarantee of getting a chosen name, there would at least be a chance. That ‘chance’ was what the pre-registrants (later nicknamed ‘Landrushers’) were paying for.


ICANN – Registry Agreements : The launch of the New gTLDs included a number of phases : the Sunrise Period to placate the IP constituency; the Landrush Period for the opening public applicants; and the Real-Time phase which continued after the launch. What became clear from the .info launch was that the ICANN Agreement with Afilias had been so loosely written, that – unless the Registry applied its own pre-emptive screening process, the Sunrise provisions effectively allowed anyone in the world to apply for any or all good names, without checks to see if those Trademark claims were fraudulent. There had been an expectation of at least one Afilias Director that the Registry would set in place the checks necessary to weed out the obviously fraudulent applications, but no such protocol materialized – so the Sunrise phase was an open invitation to anyone who wanted to, to abuse the process, and wreck the Landrush phase which was to follow it (because by reserving the name in the Sunrise, the name was then no longer available in the Landrush). The ICANN Agreement with the Registries did have one safeguard – it stipulated that Trademark applications HAD to provide credible data in to meet the criteria of 4 specific datafields : Trademark name, Trademark number, Trademark date, Trademark Country. However, in the event, Afilias failed to implement this rule in the Agreement, and allowed Trademarked names to be registered, even if the data fields had “NONE” inserted, or ridiculous dates like 2040, or Trademark Numbers like 12345678 or 00000000. To this extent, Afilias failed to fulfil the obligations of their Agreement with ICANN, to the clear detriment of thousands of consumers who as a result lost their paid ‘chance’ to acquire the names in the Landrush phase. This failing on the part of Afilias was compounded by the fact that Afilias was a cartel of registrars, whose companies were also taking money for pre-registrations, as well as submitting ineligible names in Sunrise which negated the prospects of their own pre-registrants.


The .info Sunrise : During the .info Sunrise it soon (within a week) became clear to ICANN, to Afilias, and to consumers, that the Sunrise phase was like a jeweler who had gone home for the weekend and left the front door open in trust. In total, some 12000 domain names were fraudulently reserved (and duly registered by Afilias!) and this was not the whole total – as well as the obvious examples listed above which Ram Mohan and his team later addressed, there were undoubtedly many more which were more subtly masked to evade detection. The whole principle of the Sunrise technique has been challenged on two grounds: (a) philosophically – because it appears to give one group of people the means to ‘reserve’ and close off a large proportion of the generic words of everybody else’s language; (b) practically – because it seems impractical to check on the validity of claimed trademarks in 150 countries, unless time is allowed in the process to send actual certificates and documentation in advance; and even then, when a given word might be a trademark for 50 or 100 companies around the world, why does just ONE company end up reserving the rights that are equally due to all the others? For this reason (and in the likely emergence of many more gTLDs in the medium-future) some people have suggested that there should simply be one designated TLD (.reg for example) for the formal identification of IP identity, and that in all the remaining TLDs that emerge, the Sunrise phase should be removed, and the grounds for a company challenge should be based on clear evidence, demonstrable in court, that there is an intent to use a given name in bad faith. Apart from anything else, when there are eventually 100 TLDs, will companies want to expend fruitless money reserving their name in all the different extensions? Some may, but many will not. A single designated TLD to identify checked and validated IP-holders would be a far better guarantee to the public that a website is who and what it purports to be.


Where I got involved : As an ordinary member of the public, I had spent several hundreds of pounds/dollars pre-registering a small number of names, on the basis that I would spend my family’s hard-earned cash on a small chance (but a realistic chance) of procuring a domain name I wanted in the Landrush. Soon after the Sunrise phase started to disintegrate, I realized that the process was being undermined. Some registrars were even *telling* their customers to apply in Sunrise without a Trademark and – having not read the ICANN Agreement at this stage, I even followed my registrar’s specific advice and applied for one name on that basis. Almost immediately (having secured the name so easily to my astonishment) I realized this could not be right, and contacted Afilias within 48 hours to request my registration be reversed, but they refused “because it would harm the Proof of Concept”. I then repeated my request, and copied it to about 20 media sources. I was deeply troubled that the process seemed out of control and no-one at Afilias seemed to be doing anything about it. My logical mind told me that the all the most popular names – the very names people would have pre-registered for the Landrush – were being snapped up in advance by people who seemed to have no eligibility. This would result in a loss amounting to probably millions of dollars to legitimate customers in the .info Landrush (and so, I reasoned, *surely* Afilias and ICANN would have to intervene). I therefore started monitoring the apparently fake Sunrise registrations and set up a website listing them called TheInternetChallenge. Within days I started receiving e-mails from all over the world from Landrush customers who had identified names that were visibly ineligible (lacking the data in the mandatory 4 data fields). By the end of the Sunrise phase, with the help of a script, I had obtained the data of every single .info domain registered in the Sunrise phase. I published over 10,000 names which I felt ‘should be looked at’ and others came on board to try to demand action from ICANN and Afilias.


Failure of Process and Disillusionment with ICANN : The Afilias team through this phase tried to marginalize the scale of the problem (because it was very bad PR at the start of its launch) and ICANN – although warned from almost the outset of Sunrise – refused to intervene to protect the legitimacy of the Landrush process and the thousands of consumers who were part of that process. There was widespread complaint, but three instances are worth noting: (a) One of the Afilias Directors, Robert Connolly, complained vociferously about the unfair treatment of the Landrush customers, and resigned from the Board over what he called the “abomination” of the Sunrise fiasco; (b) Professor Robert Connor of Minnesota University and I both came up independently with what was clearly a workable solution to safeguard the interests of the Trademark holders and also the Landrush customers – it came to be known as ‘The Domebase Solution’ and involved allowing all the reserved names to be offered “provisionally” at Landrush, on the basis that this ‘provisional’ allocation would only be finalized after each Sunrise claim had been thoroughly checked and proved. This would have had the effect of safeguarding genuine Trademark rights, but also ensuring that the thousands of consumers who had committed to the Landrush process (at the instigation of registrars and specifically the registrars who formed the Afilias cartel) would still have the chance they’d paid for to acquire a name if it was not reserved for Sunrise. This solution was widely supported, but Afilias refused to adopt it. It is also worth pointing out (regrettably) that a number of Afilias cartel members on their Board were caught out applying in their own individual names for Sunrise domains, using fraudulent Trademark data; and that one of Afilias cartel registrar had charged over $500,000 to one single applicant to apply for 4981 fake Trademark registrations, which the cartel then duly registered. This highlights the seeming ‘conflict of interest’ that can arise when Registry and Registrars share a single point of distribution : how to guarantee the integrity of process and safeguard the consumer? (c) The .info fiasco started as a fairly obscure event – and I suspect that the obscure and frankly opaque workings at ICANN created a climate where people felt the rules could be applied somewhat informally, without much fear of detection or redress. However, the media picked up the story and – to site just one example – the BBC News in UK ran the story and referred to my own website and Professor Connor’s solution. This added to a climate of mistrust in ICANN and ICANN’s processes, which also reflected badly on ICANN’s sponsors at DoC. Afilias had failed to uphold the rules of ICANN’s agreement (indeed some Directors were closely connected with specific abuse of the rules). ICANN had failed to enforce or uphold the rules of its own agreement (even though it was perfectly clear about what was going on). And this was happening at a time in ICANN’s history when it was setting out to EXPEL the elected representatives of ordinary users (the At Large) from its Board (because their independent and critical positions were inconvenient to the Board) – in this way ICANN failed ordinary consumers both in terms of representation and also in terms of those Agreements which were supposed to underpin honest financial transactions carried out by the public in trust on the basis of ICANN’s processes and agreements. ICANN most seriously betrayed these consumers and failed to ensure what their MoU with USG required of them “the fair distribution of the DNS”.


Meanwhile at Neulevel… : During the same period, Neulevel faced a serious legal challenge which resulted in them aborting the launch of their .biz gTLD. In being found liable of planning an ‘illegal lottery’ their roll-out was thrown into disarray. Once again, there seems to have been a failure on the part of ICANN (in liaison with the registry) to apply sufficient rigour to the formulation and drafting of policy, so as to pre-empt the failure of process (which public confusion or disadvantage as a result). In analyzing both the .info and the .biz problems, I am driven to the conclusion that ICANN has suffered from underfunding and understaffing, and I question whether a world resource on the scale of the Internet and all its DNS-related resources should really be run by a small local quango out of a few offices in California. Those who argue for the UN or ITU or other international agency to take over from ICANN can, I believe, point to some of these chaotic launches as evidence of incompetence and also draw the conclusion that the handful of staff and insiders have been incapable of administering the DNS, meeting deadlines (take this very Evaluation for example), or responding to concerns from the public. This issue of responsiveness (or rather, lack of it) became apparent to me when the bulk of prime .biz names were finally released in what was called the .biz 2B.


Abuse of Registrar Application Lists in .biz 2B and .info Landrush 2 : By April 2002, I thought that my research days were over and I could safely get back to teaching, clear weekends and evenings with my family, and the private development of a few websites (such as www.berkhamsted.info which I have developed as a local community resource, and which demonstrates the interest ordinary people have in the good governance of the DNS). However, Registrars were about to get the chance to play the pre-registration game all over again in the “Round Robin” process which Neulevel set up for its own Landrush. What became clear was that some registrars were open to the public and might take applications for, say 1000 or 10000 domain names; whereas, more determined registrars closed off their lists to the public, and restricted applications to, say 20 or 30 domain names (but the very best domain names which might have a higher market value for re-sale).  Once again, by running a script to obtain the data of all the .biz 2B registrations, it was possible to analyse in detail the size of list that each registrar submitted, and the number of customers who had benefited from a specific registrar. What was alarming was that it was apparent that a “fair distribution of the DNS” to the public (as ICANN was bound to oversee) had not been possible, because the distributors had been able to distribute some of the best domain names to themselves. This was possible because, in the Round Robin, if you only submitted 12 names, then you were guaranteed that your chosen names would come up in the first 12 rounds, and some straightaway in the first rounds of all; whereas registrars who had actually been wholly open and accessible to the public might find the best names were submitted in round 879, round 934, and round 2327… by which time, of course, those good names had long since gone to the registrar with a short, closed list. This is demonstrably what happened in the .biz 2B. For example, Signature Domains only applied for one individual – but that individual was one of their own Partners, Joshua Blacker – who, when challenged, conceded what had happened. He only got 10 domains, but they were some of the best domains available, capable of development into lucrative websites. The Lubsen family also submitted a short list with their company DomainPro, while DomainBank, working out of the same offices, submitted a much longer list used by most customers. Another Registrar appeared to run no website during the period but made applications only for 2 favoured customers. The Round-Robin process therefore appears to be vulnerable to abuse by registrars, some of whom may choose to ‘play the system’, not for the benefit of the public. The process, and its oversight, allowed for distribution to be distorted and impeded by the distributors. It was clear in April 2002, that exactly the same problem would recur when Afilias launched its Landrush 2 two months later.


ICANN’s Policy of Laissez Faire : Members of the public, once again, were left to flag up the conflict of interest that seemed to exist when the governance of a resource seemed to be largely in the hands of the people who would financially benefit from it : particularly the Registries and Registrars (many of whom – to be fair – are decent and hard-working people). It seems to the outsider that those engaged in the ‘distribution industry’ of the DNS seem to have a disproportionate influence at ICANN, while the millions of ordinary internet users (who just use the resource to visit, or to run public-service not-for-profit resources like my own website) are effectively sidelined and have been expelled from the ICANN Boardroom (in reality for speaking out and rocking the boat). ICANN’s policy of non-intervention has been described by their Registrar Liaison executive, Dan Halloran, as a policy “that might be termed Laissez Faire”. I experienced this firsthand and want to make some recommendations. When the .biz2B Round Robin system was shown as uneven in its distribution of names to customers, I (and others) contacted Afilias and ICANN to point out that the process being proposed for Landrush 2 would result in the same scope for abuse (to the detriment of the consumer). I set out a detailed list of questions and serious concerns about ICANN’s Agreements, its accreditation policy for registrars, and the problem of registrar shortlists. This was sent separately to Dan Halloran and Stuart Lynn, asking for responses and / or action. My concerns were reasoned, serious, and widely recognized by others at sites like ICANNWatch and in correspondence posted to ICANN’s own lists and forums (forums which Stuart Lynn famously dismissed as “a joke”). After 30 days of waiting even for the courtesy of an acknowledgement of receipt from Dan Halloran (by which time the Landrush was imminent) I re-sent the mail, posted copies on ICANN’s mailing lists and forums and at ICANNWatch. There was zero response. “Laissez Faire” appeared to equate to ‘say nothing if the questions raised are awkward’. 100 days after writing (and sure enough, the Short Lists problem recurred in Landrush 2) I still had no response. After a year I had nor response. It is now approaching the end of the 2nd Year, and there has never been a response of any kind, even though the concerns have been repeatedly sent, and repeatedly posted and publicized. It is as if I – and others who share my concerns – simply do not exist. I find this an extraordinary lack of responsiveness, and an evasion of responsibilities and accountability. It is probably this lack of accountability which is most concerning. ICANN appears to administer its delegation of New gTLDs with loosely drafted and largely non-enforced Agreements, adopting a Laissez Faire approach which, frankly, invites abuse of process because few sanctions will follow. In the .info Sunrise some registrars grabbed over 200 names for themselves, inserting data which WIPO subsequently found to be fake – and yet ICANN continued to accredit these registrars and never expressed any apology for the failure of their processes and agreements. ICANN accreditation, if it is to be any kind of safeguard to the public, must be called in question where registrars consciously act fraudulently. “Laissez Faire” in this context means, if the public is harmed, life will carry on. The lack of user representation on the ICANN Board makes this attitude even less tolerable.