.Hotel Domain Applicants Seek to Disqualify Competitor

Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...

By Alexis Kramer

Aug. 25 — Applicants for the .hotel top-level internet domain Aug. 25 challenged a decision that unauthorized access of confidential data by a person allegedly associated with a competing applicant didn't amount to a disqualification.

The board of the nonprofit Internet Corporation for Assigned Names and Numbers decided not to cancel HOTEL Top-Level Domain Sarl's (HTLD's) application even though it found that Dirk Krischenowski had accessed and downloaded proprietary information belonging to several of the .hotel applicants.

“Allowing HTLD's application to proceed goes against everything that ICANN stands for,” the applicants wrote in a request for reconsideration of the board's Aug. 9 resolution. “It amounts to an acquiescence in criminal acts that were committed with the obvious intent to obtain an unfair advantage over direct competitors.”

HTLD didn't immediately respond to a request for comment.

Krischenowski was at the time of the incident a managing director of a minority (48.8 percent) shareholder company of HTLD. The board said its investigation also found Katrin Ohlmer, one of HTLD's managing directors at the time, responsible for “numerous instances of suspected intentional unauthorized access.”

The applicants' request is the latest attempt to bring to light transparency and accountability issues that have been at the forefront of complaints against ICANN, which coordinates the domain name system.

HTLD was given priority status over the other applicants because it applied on behalf of what it called the “global hotel community” and prevailed in a community priority evaluation. The other applicants are also challenging the board's refusal to reconsider that evaluation on the grounds that, they allege, ICANN has clear policies to deny community priority to mere industries.

Unauthorized Access

In February 2015 ICANN learned of a misconfiguration issue that allowed users of ICANN's Global Domains Divison portal to view confidential information of other applicants if they conducted a particular search. According to ICANN, it investigated the issue and found that Krischenowski accessed confidential data of a large number of applicants.

After ICANN notified the affected parties, the .hotel applicants asked the board to cancel HTLD's application.

The board said Aug. 9 that it didn't uncover evidence that the information Krischenowski may have obtained was used to support HTLD's .hotel application or enable it to prevail in its community priority evaluation.

It also said that Krischenowski claimed he didn't act on HTLD's behalf, didn't know the portal issue was a malfunction and used the search tool in good faith. He certified to ICANN that he hadn't used the acquired information and would delete it, according to the board.

Philipp Grabensee, the current managing director of HTLD, told ICANN in a May 18 letter that Krischenowski was a consultant for HTLD's .hotel application at the time it was submitted and had no other responsibilities with respect to the company. Grabensee said that Ohlmer was principally responsible for representing HTLD in the .hotel application process. Krischenowski is no longer a consultant for HTLD and Ohlmer was terminated as managing director as of March 23, Grabensee said.

According to the board resolution, Krischenowski stepped down as a managing director of the minority shareholder company and transferred its shares in that company to Ohlmer.

Cancellation Not Warranted?

The board said it considered the relevant information and determined that cancellation of HTLD's application wasn't warranted.

The .hotel applicants, in their Aug. 25 request, argued that the decision was based on irrelevant findings and failed to address the unfair competitive advantage HTLD allegedly obtained. It is “inappropriate” and contrary to ICANN's bylaws to “allocate a critical Internet resource to a party that has been cheating,” the applicants said.

Whether HTLD used the confidential information in support of its community priority evaluation was also irrelevant, the applicants said. “What matters is that the information was accessed with the obvious intent to obtain an unfair advantage over direct competitors,” they said.

The applicants said the board also relied on unverified statements about Krischenowski and failed to show that it did anything to check their veracity.

The applicants asked the board to cancel HTLD's application and allow them to try to self-resolve the conflict over who should operate .hotel. In the event that the board decides not to immediately cancel HTLD's application, the applicants requested a review of HTLD's community priority evaluation.

Flip Petillion of Crowell & Moring LLP represented the applicants.

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

For More Information

Full text at http://src.bna.com/h2O.

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Tech & Telecom on Bloomberg Law