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African Union slams “dysfunctional” IRP as ICANN tries to fend off cover-up claims

Kevin Murphy, August 5, 2015, 12:46:36 (UTC), Domain Policy

The African Union Commission has criticized ICANN’s “dysfunctional accountability process” that has kept the proposed .africa gTLD in limbo for the last few years.

In a communique yesterday (pdf), the AUC also reiterated that .africa applicant ZA Central Registry has the support of both the AUC and its member states, and that governments used almost every avenue available to them to object to the rival DotConnectAfrica bid.

The letter reads:

The Africa region, African Internet stakeholders, the ZACR and AUC are the unfortunate victims of a dysfunctional accountability process and an independent review panel that did not delve more deeply to understand the new gTLD process, the role of governments in that process, and how the ICANN multistakeholder model functions in general.

A few weeks ago, an Independent Review Process panel controversially ruled that ICANN had treated DCA’s application unfairly, in violation of its bylaws, when it accepted Governmental Advisory Committee advice to reject it.

The panel said that ICANN should have at least asked the GAC for the rationale behind its advice, something that the new gTLD program’s rules did not require it to do.

One of the issues at the heart of the subsequent debate is whether ICANN inappropriately helped out ZACR’s bid by drafting an AUC letter of support and then tried to cover its actions up by inappropriately redacting information from the IRP ruling before publication.

On Friday, ICANN published a new version of the ruling that had these references restored, while retaining redactions related to the actions of Kenyan government officials.

We know what the still-redacted text says because Kieren McCarthy, writing for The Register, obtained a clean copy and published it a couple of weeks ago.

ICANN also promised to publish its reasoning if it makes redactions to any documents in future.

In a blog post on Friday, general counsel John Jeffrey said that ICANN helping the AUC draft its letter of support was not a unique case, nor was it inappropriate:

ICANN staff has helped many applicants and their supporters understand how to properly document support. Not only did we make a template support letter publicly available to all as part of the New gTLD Program Applicant Guidebook (see Appendix to Module 2), we have answered questions, received through our customer service channel, as to how interested parties can document support for a given gTLD application. In the case of ZA Central Registry, ICANN appropriately assisted the applicant in documenting support from the AUC.

Our actions surrounding the .AFRICA applications were not unique, since we assist any applicant who requests assistance, or who needs clarification in learning how best to document support or other matters. We have provided assistance to all applicants regarding their applications to the maximum extent possible.

On the claims that ICANN tried to “cover up” this assistance by redacting the IRP’s ruling and previous IRP filings, Jeffrey said that the information was covered by a confidentiality agreement agreed to by itself and DCA and endorsed by the IRP panel.

He said that ICANN was “motivated by our obligation to the community to post the document quickly and the competing, yet mandatory obligation, to respect confidential information while being as transparent as possible.”

He said ICANN attempted to reach out to those affected by the “confidential” parts of the ruling to seek permission to remove the redactions.

But McCarthy also seems to have seen emails exchanged between DCA and ICANN, and he says that ICANN redacted it over DCA’s objections.

McCarthy further says that ICANN only became interested in removing the redactions after he had already published the clean version of the ruling at The Reg — five days after the initial publication by ICANN.

Jeffrey’s post, which refers to “erroneous reporting” in an apparent allusion to McCarthy’s articles, nevertheless fails to address this claim, lending credibility to the cover-up allegations.

The .africa gTLD has been contracted to ZACR, but DCA’s rejected application has been returned to evaluation per the IRP’s ruling, where it is broadly expected to fail for want of governmental support.

Disclosure #1: I recently filed a Documentary Information Disclosure Policy request seeking the release of all the unredacted exhibits in DCA v ICANN. Given ICANN’s wont to usually respond to such requests only at the end of the full 30 days permitted by the policy, I should not expect to see an answer one way or the other until the last week of August.

Disclosure #2: As regular readers may already be aware, due to my long-held and never-disguised view that DCA was mad to apply for .africa without government support, I was once accused of being a part of a “racial conspiracy” against DCA on a blog I believe to be controlled by DCA. Naturally, after I stopped laughing, this libelous allegation pissed me off no end and enhanced my belief that DCA is nuts. Around the same time DCA also, under its own name, filed an “official complaint” (pdf) with ICANN, omitting the race card, alleging that I was part of a conspiracy against it.

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Comments (25)

  1. General Counsel’s John Jeffrey’s statements are consistent with what I mentioned many times. ICANN provided reasonable customer service on what ICANN was looking for in a support letter to be signed by an authorized entity. A template does not give anyone a competitive advantage in obtaining support from an authorized entity.

    Letters of support are quite complicated (my organization has a lot of experience in this arena) and it would be a reasonable customer service request at a filing cost of $185,000. If ICANN is asking for a letter of support then it would be reasonable for one to ask how a sample letter of support intended for government support looks like. It was ZACR that lobbied to get the AUC’s support not ICANN. A mere template gets zero points in all scored sections of the AGB. If ICANN lobbied the AU to get support for ZACR then that would be a more powerful story.

    If securing .AFRICA requires the African Union’s support letter (African Union represents 54 countries in Africa, except Morocco from what I understand) without their objection, then what ZACR did seems to be consistent with the AGB.

    On another note, ZACR could have filed a Community application for .AFRICA like Interlink did in the case of .OSAKA. Two applicants received the support from the city of Osaka, yet one prevailed via CPE (https://www.icann.org/sites/default/files/tlds/osaka/osaka-cpe-1-901-9391-en.pdf). As Kevin said, it was probably obvious they did not think there would be another application for .AFRICA, so did not take the CPE approach.

    Will be interesting to see how this develops, especially how DCA responds to this.

    • Rubens Kuhl says:

      Perhaps we are the wrong audience for DCA. By stating things that people from the industry know to be bogus they are obviously not getting any support for their cause, but they keep the very few supporters they might have energised (I remember similar speeches from Mussolini) and might be trying to reach out to US congress in a moment that is crucial to ICANN due to IANA transition.

    • Evans Taylor says:

      Then if you are defending ICANN assistance of ZACR, how come the same was not done to DCA, why was DCA not afforded the same assistance if indeed ICANN is neutral and fair?, Call it any nice name but this was a case of favouritism with intent to stop one application in aid of another. ICANN made a mistake by involving itself in helping ZACR, it is a lame duck.

      • Evans,

        In 2012, ZACR applied for .AFRICA. In its application ZACR clearly states “The African Union Commission (AUC) has, on behalf of its member states, officially appointed UniForum SA to apply for and launch the dotAfrica TLD.” (See https://gtldresult.icann.org/application-result/applicationstatus/applicationchangehistory:downloadfromdocument/3355?t:ac=1184).

        According to the AGB, ICANN can assist applicants in non-scored areas that are not material changes to their application that affect their contention set (See https://newgtlds.icann.org/en/applicants/customer-service/change-requests). The original application clearly states support from the African Union. In other words, ZACR already had the support. If the DCA had the support in its application then I am sure ICANN would have assisted them. DCA cannot get the same treatment because according to the African Union they did not support them as of the application filing date in 2012.

        When you look at DCA’s application language you see that they also reject the notion of a delineated community representing “Africa”like the African Union. The language on Question 18a in the DCA application (See https://gtldresult.icann.org/application-result/applicationstatus/applicationdetails:downloadapplication/1276?t:ac=1276) says:

        “DCA believes that DotAfrica does not qualify as a community-based application for two main reasons:
        a) There is no clearly delineated, organized and pre-existing community that is targeted by the DotAfrica gTLD; b) It is difficult to clearly identify who are the ‘members’ of the community, since a ‘community-definition’ of DotAfrica will restrict its use and functionality. Since ‘DotAfrica’ does not necessarily mean a TLD for ‘Africans’, it is difficult to determine the persons or entities that are considered to form the community, and the number of people or entities that make up the community.”

        The DCA application itself seems to have never envisioned a support letter from an authorized delineated community such as the African Union. Maybe there was such support in the past and that is up to DCA to prove. I am just reading both applications’ content and analyzing.

        Bottom line is that ZACR already had support from an authorized organization of relevance and this is what is the issue here. The “paper” that this support is signed on has no significance since their request is aligned with their application and it is not a material change.

        However, when it comes to the impact of GAC advice on applicants in the New gTLD Program, I fully side with the DCA. The unintended consequences of GAC advice was material since the GAC Advice and subsequent ICANN resolutions did materially assist applicants that were objected with respect to “exclusive access” and “lack of enhanced safeguards for sensitive strings” to help them circumvent Community Objections. How can you prove a likelihood of material harm when GAC Advice is followed by ICANN to pass resolutions during Community Objections disallowing the “exclusive access” and adding “safeguards” for sensitive strings. Obviously if ICANN passes resolutions to address “exclusive access” or “safeguards” then ICC Community Objection Panelists have no way of siding with Objectors to prove a likelihood of material harm because ICANN just threw the Objectors under the bus even though their Objection rationale was vindicated.

        Seems many are focusing on DCA, when the obvious preferential treatment by ICANN (through GAC advice) was given to portfolio applicants (who had exclusive access language or no safeguards for sensitive strings). Objectors obviously lost and those objected-to applicants were allowed to change their application materially to “adjust” their policies to circumvent the objections. Did I mention that each objection cost a fortune?

        In conclusion, ICANN can help when it comes to providing customer service when it comes to issues that do not constitute a material change. Since ZACR already had support from the African Union then it is not a material change to their application and of course ICANN can give assistance.

        Huge difference.

        • Evans Taylor says:

          Constantine Roussos, ICANN should not have made deference to the AUC endorsement, i.e. the UNECA and AUC endorsements amounts to the same, also as confirmed by the independent panel. Therefore DCA has both qualifying endorsements of AUC and UNECA which they submitted during the application time, despite the lack of political support by the AUC, as a result of their affiliation with the ZACR application.

          I still don’t get your notion that “ZACR already had the support. If the DCA had the support in its application then I am sure ICANN would have assisted them.”… This statement is not true by fact or analysis. As I said above DCA has both endorsements, so you would think there would have been clarifying questions to DCA, even if not in the form of assistance like ZACR. ICANN should not have had any role in this process expect clerical. The formulation of clarification questions were supposed to be done by the independent panel. ICANN’s intervention to assist ZACR is most irregular, therefore ICANN was supposed to be a neutral party not supporting one and denying the other the same assistance.

          • Rubens Kuhl says:

            AUC is not an endorsement of an IGO, but the proxy endorsement for countries that signed up the declaration giving AUC such authority.

            I might challenge whether this holds up, but the endorsement of some continental IGOs is not enough, whether for DCA or ZACR.

            As for AUC and UNECA endorsing DCA, both doesn’t hold up; DCA had previous endorsements from both prior to the process, but their positions during the process were clearly against DCA.

      • Rubens Kuhl says:

        We don’t know whether DCA would have been afforded the same assistance by staff, since they got a kill order from the Board when the GAC advice was accepted.

        Remember that one other contested TLD, .osaka, had 2 applicants passing Geo names panel, and .osaka ended up defined by a community priority evaluation… .africa was not the only Geo TLD with more than one applicant, but the only one where one applicant clearly lacked support.

  2. Martin says:

    I’ m sure Domainincite has already covered some of the GAC issues the panel ruled upon previously as in this blog here http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-loses-africa-case

    This is the problem with GAC and that is among one of reasons ICANN lost the case, GAC can’t come back to again “clarify or refine” itself, as the ICANN board has oddly requested it, to saying “we still don’t like DCA for any reason”. Even so the days for saying that has expired, and from the DCA vs ICANN ruling, the lesson learned is that no applicant should be subject to something like I am going to get rid of my competition “because I don’t like them”, when everything else they have tried has failed.

    No one needs to “understand” the rule book to know this. Any rational person would simply dismiss it easily. “get rid of it, is simply unconstitutional’

    • Rubens Kuhl says:

      At this point I don’t think AUC will ask GAC to insist on its advice, at least not yet. Easier for AUC to let DCA be rejected by the Geo names panel and move on.

      • Evans Taylor says:

        I have covered this topic a while back under #ICANNAfrica: Africans do not want ICANN to be bound by any arbitration process, #ICANNAfrica: Africans do not want ICANN to be bound by any arbitration process http://domainnewsafrica.com/icannafrica-africans-do-not-want-icann-to-be-bound-by-any-arbitration-process/

        • Rubens Kuhl says:

          Yet another “African” defending oversight by the US political and legal establishment, even though US is not an African country. Curious, here in South America we would rather have ICANN not under US Government or US Senate control; we understand why some Americans might want to keep some of those, but why Africans would want that keeps being a mystery to me.

          • Evans Taylor says:

            I think the article was about accountability of ICANN and its structures and not about US Senate control or Africa. Did I read you like to mix apples and oranges?

            • Rubens Kuhl says:

              “Therefore, even though the Senators might accept a process-led by a non-governmental Global Multi-stakeholder Group, tighter US government supervision would be required. Only the US Congress can provide this level of process oversight that would ensure that the ‘Multi-Stakeholder Group’ remains accountable to the global public interest that it is supposed to serve, and does not become a law onto itself.”
              Sophia Bekele in http://www.circleid.com/posts/20150309_no_legal_basis_for_iana_transition_post_mortem_senate_hearing/ , and many other blog posts for the last few years.

              Mention to US Senate in this article was lighter than usual, indeed. Possibly just a reminder of the overall “US Congress is Watching” theme.

          • Martin says:

            I can’t see your arguments, I guess it is better to bring along the business model of the Brazilian Aaron Davidson, who is now indicted on FIFA world soccer by US courts. I did not see the judges in Brazil that brought him to justice. I will raise my hat for the US judicial system anytime!

  3. Martin says:

    Kevin, How could the decision be “controversial”? An agreed upon process with qualified jurists whose decision came as unanimous and unequivocal cannot be classified as controversial. It is what it is

    • Rubens Kuhl says:

      For starters, the redacted parts.

      • Kevin Murphy says:

        Also, the fact that it contradicts earlier IRP rulings by similarly qualified jurists.

        • Martin says:

          Kevin, So you are saying you want to create controversy over where it does not exist. I get it. No amount of analysis or counter analysis can take away ICANN’s actions or inactions as regards this IRP. Who tells you that all decisions have to be the same? That is the reason why they are called independent review panels.

      • Martin says:

        The redaction is a decision by ICANN not IRP Panel, so you are again mixing apples and oranges.

        It is so obvious that ICANN lost due to mismanagement and incompetency. Let everyone accept this fact. Take a look at this blog today and let it give you some clue. http://www.domainmondo.com/2015/08/icann-public-interest-new-gtlds.html
        You both can keep on defending ICANN and it’s in competencies, just for argument sake or to be anti DCA, but the facts remain the same and DCA prevailed in this IRP ruling over ICANN.!

        • Kevin Murphy says:

          The more you argue, the more controversial it becomes.

        • Rubens Kuhl says:

          The decision to redact generated a lot of controversy… not all controversy is about the merits, and only a limited view of the question would call it that.

          Me, Kevin and commenters of this blog have indicated a lot of ICANN incompetencies and management failures throughout the new gTLD program, but no one likes when someone takes a panel decision that indeed pointed to ICANN flaws, which made DCA partially prevail in the IRP, and try to purport it as a decisive victory in the contention set. None of the DCA asks to the IRP panel regarding either the other application, or how its own application will be processed, were granted, preserving the inevitable outcome.

          • Martin says:

            “None of the DCA asks to the IRP panel regarding either the other application, or how its own application will be processed, were granted, preserving the inevitable outcome”

            Quite the contrary, the Panel already stated that they would not get into specific issues and they are too many they already said, and simply did an overall ruling by saying “ICANN ‘s action and Inactions……

            The panel has spent an inordinate amount of time on non GAC related issues both in discovery and the hearing with the witnesses, if you could read the hearing transcript and many irregularities were found and noted by DCA lawyers, who obviously prevailed in their arguments.

            Now if you want to take ICANN’s interpretation on the ruling, it is your prerogative, however DCA seems to have made its own interpretation.
            And what contention set are you talking about? From my point of view ICANN accepted the GAC advice as a smoke screen so that ZACR does not go into contention with DCA knowing it probably will fail to begin with, which they are also insisting on the same now by not revoking a contract for ZACR to allow a fair evaluation.

            I say your biased view over “support” related issues, a bunch of irregular documents I might add, along with what DCA’s opponents feed you, I say you have no clue who would prevail if there was a contention, but as of today there is not.

            Also based on your responses so far here and on CircleID, you have also no idea about contract law or legitimate use of Proxy. You appear to make up the rules as you go along, typical of what ICANN does….

            • Rubens Kuhl says:

              DCA interpretation requires a different version of the English language and a different universal communication pattern than everyone else uses.

              As for ad-hominem attacks like those above, they are usually an indication of lack of arguments, so there is no need to reply to those.

  4. Martin says:

    Oh by the way, who in African Union wrote this declaration up? It is unsigned and there is no source!

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