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Anger as ICANN’s member flops before board

Kevin Murphy, September 4, 2015, Domain Policy

ICANN’s board of directors came to blows with its key accountability working group this week, over proposals that would give ICANN the community the right to sue ICANN the organization.

An extraordinary three-hour teleconference between the board and the Cross Community Working Group on Enhancing Accountability (CCWG) Wednesday night came across like some kind of weird, Orwellian, passive-aggressive piece of emotional domestic abuse.

The CCWG, a group of volunteers coming from all parts of the ICANN community, has created a set of proposals for improving ICANN’s accountability to the community as part of its transition process away from US government oversight.

The idea is to create sufficient accountability mechanisms so that if in future the entire ICANN board grows goatee beards and turns Eeevil, the community will still be able to hold them to their bylaws commitments.

The CCWG, following the advice of an independent law firm, decided that the best way to do this was to turn ICANN into a membership organization with a “Sole Member”.

This member would be a legal entity run by community members that would have the right under California law to sue ICANN if it ever failed to live up to its bylaws.

For example, if ICANN refused to implement the decisions of an Independent Review Panel, the member could seek to have the ruling enforced by a court.

This is just one of many proposals made by the CCWG currently open for public comment.

Highly unusually for a public comment period, the ICANN board is going to be a commenter in this case. While its comments have not been published yet, it has taken advice from its lawyers at Jones Day that may give an indication of how it is leaning.

Wednesday night’s call was designed to give the board the chance to bring its initial thinking to the CCWG.

Instead, it wound up being almost entirely about the proposed membership model and the board’s statements that while it supported the CCWG’s proposals 100% it also wanted them fundamentally rewritten.

The board wants the idea of a Sole Member model thrown out and replaced with a new arbitration process that would be legally enforceable in California courts.

So, instead of a legal-entity “member” suing ICANN, some as-yet unidentified community entity would take ICANN to arbitration. The decision of the arbitration panel could then be enforced by the courts if ICANN failed to abide by it.

When CCWG members asked who, in the absence of a legal entity, would take ICANN to arbitration and then sue it, the board had no answer. Instead, directors said the CCWG’s legal advisers should talk to Jones Day to hammer out the “technical” details.

Some members claimed that it would be “impossible” to give the community legal standing to sue ICANN without a membership model. Others said that the board’s 11th hour suggested rewrites would make it “impossible” to hit the deadline for a final proposal by the Dublin meeting next month.

At least a third of the 2-hour 47-minute call was wasted as the CCWG struggled to understand the doublespeak the board had brought into the discussion.

Directors continually insisted that they “completely supported” CCWG’s proposals on enforcement “without reservation”, while simultaneously saying the Sole Member model should be thrown out.

Half way through the call, CCWG co-chair Thomas Rickert reflected exasperation among members: “There is obviously difficulty to understand by many on this call how you fully support what we are doing while proposing something which appears like a complete rewrite.”

Shortly thereafter, Chehade responded:

Why don’t we just agree that we are agreeing with you that the community must be able to get enforcement in California courts, that we will ensure that they have the standing to do it without question. And if we are all in agreement that we are in agreement with each other let’s then let the technical people go solve this. If they call come back and tell us that frankly that advice was flawed, then let’s deal with it then in good faith. But that’s what we’re sharing with you.

Directors said that the proposed member model might have unintended consequences, and that the US government may not approve a proposal that overly complicates ICANN’s legal structure.

An hour later, the CCWG was still scratching its head, nerves were beginning to wear, and the tone was getting increasingly testy as the CCWG repeatedly asked the board to explain how it could express support and simultaneously propose an alternative solution.

“There is absolutely no new proposal,” Chehade said, eventually. “We are embracing your proposal and the objectives of the community. Please hear me on this. There is no new proposal.”

He said:

Take your work and break it down: board removal, standing reconsideration, enhancing – getting the IRP back on the track we set, you know, fundamental bylaw, binding arbitration or mechanisms of enforceability. All of the things you have come up with, we are accepting. So when your reaction to our two last hours is that we’re refusing to add any accountability, I don’t know how you come to that frankly…

you yourself in the proposal say that this proposal is not finished, it needs a lot of work. So what we’re saying to you is let’s take this proposal which is not finished and let’s figure out ways to make it real, and real in the next few weeks so we can move forward…

The only area where we are telling you we would like to propose a different mechanism to achieve the same goal is the enforceability.

The whole three hours reminded me of a nightmare-scenario interview where the interviewee has been media-trained up the wazoo and refuses to sway from a set of vaguely scripted talking points.

But which proposal is the right one for ICANN?

Beats me. What does seem quite clear to me is that the board and CCWG are at odds now, despite what ICANN says, and that the expected delivery of a final accountability proposal by Dublin is in serious doubt.

Following the call, ICANN chair Steve Crocker posted a blog post that sought to clarify the board’s position, characterizing it as agreement in principle but disagreement on implementation. He wrote:

We have suggestions on how these [CCWG proposals] could be operationalized. With regards to the mechanisms for community enforceability, where the current proposal still warrants much detail that may not be achievable we have a suggestion on how to deliver on it in a stable way, as increased enforceability must not open up questions of, for example, capture or diminishing of checks and balances.

The Wednesday meeting’s audio, transcript and other notes can all be found here.

More dirty tricks questions raised in .africa saga

Kevin Murphy, September 2, 2015, Domain Policy

DotConnectAfrica leaned on a former employee and used suspected astroturf in an unsuccessful attempt to have the Kenyan government support its .africa bid, newly published documents reveal.

Evidence to the .africa Independent Review Process case published for the first time by ICANN Monday night shows how DCA CEO Sophia Bekele attempted to secure Kenyan backing via a former chair of its own advisory board, who had gone on to be an adviser for Kenya on the ICANN Governmental Advisory Committee.

Emails suggest that this adviser tried to support DCA, against the wishes of his superiors in the Kenyan government, while they were distracted by a contested presidential election result.

They also show that Bekele on at least two occasions sent “news” stories published on web sites she has links to to another senior Kenyan official.

The full story is not yet on the public record — ICANN is still refusing to un-redact anything that the GAC has deemed confidential, including discussions on the GAC mailing list — but some interesting questions have nevertheless emerged.

Kenya divided

Three sets of emails were published.

One was between Bekele and a newly appointed Kenyan GAC adviser, Sammy Buruchara, dating to the ICANN meeting in Beijing, April 2013.

That was the meeting at which the GAC decided, by consensus, to issue advice to the effect that DCA’s .africa application should be trashed.

If Kenya, or any other single government, had disagreed with that proposed GAC advice, it would not be “consensus” advice and would therefore be substantially weakened when the ICANN board came to consider it.

Until his GAC appointment, Buruchara had been chair of DCA’s Strategic Leadership Advisory Board. DCA press released his move in March 2013.

It’s significant that Buruchara was not Kenya’s GAC voting “representative” — that was Michael Katundu — rather merely an “adviser”.

When Bekele (pictured here with Buruchara, March 7, 2013) was cross-examined during the IRP hearings in May this year, she was asked:

Bekele Buruchara

Q. Are you and he friends?

A. No.

Emails show that Buruchara had forwarded the proposed text of the GAC advice to Bekele, who then suggested three paragraphs of text saying the advice was “inappropriate” because the African Union Commission, as backer of the rival ZACR .africa bid, was a GAC member.

That email was dated April 10 — the Wednesday of the Beijing meeting — as the GAC was preparing its communique for submission to the ICANN board the following day.

It’s not clear from the emails published so far what, if anything, Buruchara did in response.

However, the next day, April 11, it seems his Kenyan government superiors were on his case. Buruchara told Bekele:

The matter has been escalated to our Government in Kenya with false information that I am contradicting the AUC.

I have responded accordingly.

Due to the sensitivity of this matter, I wish to leave it at the level of my previous post to the GAC until the matter settles.

Currently I am expecting a call from the President any time.

Expecting a call from the president was a big deal — Uhuru Kenyatta had been inaugurated just two days earlier following a month-long “hanging chads”-style legal challenge to his March 9 presidential election victory.

Buruchara elaborated in a subsequent email:

Someone from AUC called Ndemo and made a lot of noise to the effect that I have contradicted the Heads of State agreement in Abuja, which is obviously lies.

So Ndemo is beside himself with madness owing to the current transition process.

Anyhow I will try and manage the situation as I have not anywhere contradicted AUC’s position.

The “transition” he refers to is Kenyatta’s transition into government, not the ICANN/IANA transition.

“Ndemo” was actually Bitange Ndemo, then the Kenyan permanent secretary for information and communications, somebody Bekele had been simultaneously lobbying for Kenyan government support.

Buruchara was not in Beijing. The actual GAC rep, Katundu, went along with the GAC consensus against DCA.

In fact, Kenya had already issued a GAC Early Warning (pdf) against DCA, so it was significant that Buruchara was expressing support for the company.

In a second email thread, dated July 8, 2013, Buruchara seems to acknowledge that he aided DCA in some way but suggests that was only possible because of political instability in Kenya:

I am glad to note that DCA application passed all the stages except the GNP [Geographic Names Panel].

As you know I stuck my neck out for DCA inspite of lack of Govt support by Ndemo.

Going forward, I would certainly be ready to support DCA so long as the Kenya Govt is behind me as I do not think I will have the same chances as I had last time which was because the govt was in transition

In these July emails, which came less than a week after DCA’s application was rejected by the ICANN board, Bekele encourages Buruchara to file a challenge on behalf of Kenya, and to try to recruit other friendly governments to its cause.

Nothing ever came of that.

Buruchara’s alleged actions were one of the controversial points argued over in the DCA Independent Review Process case.

Many pages of the relevant evidence and argument related to Buruchara’s actions (or lack thereof) are still redacted by ICANN as “GAC Confidential”, so we don’t have all the facts.

However, the IRP proceedings revealed that Buruchara had emailed the GAC mailing list just before Beijing kicked off with reference to .africa.

According to DCA, Buruchara “explained that Kenya supported the AUC’s application for .AFRICA but did not think it was appropriate for the AUC to utilize the GAC to eliminate competition”.

Complicating matters further, there was a third Kenyan GAC “representative” in the mix, Alice Munyua.

She had been the Kenyan GAC rep, but according to DCA had left the position prior to Beijing. She was also involved in the ZACR application and the AUC .africa project.

The record shows that she spoke strongly against DCA’s application, as Kenyan GAC rep, during a meeting between the ICANN board and GAC in Beijing, April 9.

Buruchara, according to DCA, had told the GAC mailing list that Munyua was no longer a GAC rep and that the Kenyan government did not agree with her position. He was then evidently talked out of his position by other GAC members.

It’s not clear from the record whether Munyua was an authorized Kenyan GAC rep in Beijing or not. Archive.org shows her listed on the GAC’s member list in January 2013 but not May 2013.

It’s all very confusing, in other words.

What we seem to have in Beijing, at the least, is a Kenyan GAC delegation deeply divided and the possibility that one or more delegates tried to capitalize on political distractions back home.

With a partial record, it’s difficult to tell for sure.

.africa belongs to America

What’s more clear from the emails published by ICANN this week is that despite her claims to represent the African people, Bekele on at least two occasions told Kenyan officials that African governments had no right to .africa.

In one email to Ndemo, Bekele asserts that the US, rather than African governments, “owns” .africa. She wrote:

we do not believe that it is the place of African Presidents to give AU any sort of mandate for custodianship over a .africa resource that is owned by ICANN or US… the AU cannot do an RFP that is parallel to the ICANN process to appoint a registry on behalf of Africa as if they “own the resource”, which belongs to ICANN

This is in tune with Bekele’s repeated outreach to the US Congress to intervene in the .africa controversy.

While DCA is based in Mauritius, Bekele has stated in interviews that she’s lived in California for the better part of two decades.

More astroturf?

The newly published emails also show Bekele unsuccessfully lobbying Ndemo for Kenyan government support, in part by sending him links to purportedly independent domain “news” blogs that are widely believed to be under her own control.

In February 2013, Bekele sent Ndemo links to articles published on domainnewsafrica.com and domainingafrica.com.

These two domains were originally registered by Bekele, at her California business address, on November 21, 2011.

The Whois details for both domains disappeared behind Go Daddy’s privacy service on May 12, 2012, records archived by DomainTools show.

Both web sites take strongly pro-DCA views in matters relating to .africa and ICANN. Neither covers African domain name news except to the extent it relates to DCA or .africa.

Given that Bekele has a admitted history of using bogus identities to fake support for DCA, it’s my view that the sites are nothing more than astroturf/sock-puppetry.

domainingafrica.com is the site that accused me of being part of a racial conspiracy.

It’s worrying that this site was also being used to lobby government officials.

It’s perhaps fitting that Bekele’s email signature, in the newly unredacted emails, is “Nobody believes the official spokesman… but everybody trusts an unidentified source.”

All documents in the IRP case of DCA v ICANN, many still significantly redacted, can be found here.

.food could be heading for limbo after closed generic applicant wins auction

Kevin Murphy, September 1, 2015, Domain Policy

The future of the .food gTLD is up in the air after single-registrant applicant Lifestyle Domain Holdings won its contention set.

The applicant, a subsidiary of Scripps Networks, is the sole remaining .food applicant after withdrawals from Donuts and Dot Food LLC.

It’s also a recalcitrant “closed generic” applicant, which continues to insist it has the right to exclude all third-party registrants from the .food namespace.

The company seems to have won .food at auction, even though ICANN recently slapped a ban on closed generics in the current application round.

Scripps will not be able to launch .food any time soon, unless it changes its planned registration policies.

The company may have essentially just paid to have .food placed on hold until the next new gTLD round.

Scripps runs a cable TV station in the US called Food Network, which it says is famous. It also runs Food.com, which it describes as “the third largest food site on the web”.

The current version of its application states:

Applicant intends to function in such a way that all domain name registrations in the TLD shall be registered to and maintained by Applicant and Applicant will not sell, distribute or transfer control of domain name registrations to any party that is not an Affiliate of Applicant

When ICANN asked applicants if they would like to revise their closed generic applications to allow third-party registrants, due to adverse Governmental Advisory Committee advice, Scripps was one of half a dozen applicants to decline.

Audaciously, the company told ICANN that an open registration policy for .food would hurt its brand:

To open the top level domain means that anyone could register a domain for a small annual amount of money and exploit, confuse and infringe upon the brand equity and goodwill of the famous FOOD, FOOD NETWORK and FOOD.COM brands established by Scripps with more than twenty years and hundreds of millions of dollars in investment.

Yes, Scripps thinks that when people think of “food”, they automatically think of the “third largest food web site” or a cable TV network that gets a 0.21% audience share in the UK.

A nonsense position, in other words.

So will Scripps get to run .food as a closed dot-brand? Probably not.

In June, ICANN ruled that the remaining closed generics applications (.food, .hotels, .grocery, .dvr, .data, and .phone) had the choice of either withdrawing, dropping their exclusivity plans, or carrying their applications over to the next gTLD application round.

Having just paid its competing applicants to go away, one assumes that Scripps’ withdrawal is off the cards.

ICANN finally publishes THAT .africa letter, makes me look like an idiot

Kevin Murphy, September 1, 2015, Domain Policy

ICANN has finally published the letter it controversially drafted for the African Union Commission in order to help it express support for ZA Central Registry’s .africa bid.

Having now read the draft letter for the first time, on balance I’d have to say my previous opinions on its contents were more wrong than right.

The letter was central to claims by rival .africa applicant DotConnectAfrica that ICANN treated ZACR preferentially during the evaluation of both applications.

It was drafted by ICANN staffer Trang Nguyen around June 25, 2013, and sent to ZACR.

It was then edited by ZACR and the AUC, signed by the AUC, and returned to ICANN, whereupon it was forwarded to the new gTLD’s program’s Geographic Names Panel at InterConnect Communications.

The GNP took the letter as an official endorsement of ZACR’s bid, enabling it to pass the Geographic Names Review and proceed to the next stage of the program.

Having seen (and published) the signed AUC letter, I opined here in July that it looked like it had been mostly been written by ZACR and/or the AUC.

I no longer believe that.

It’s now proven that the AUC redraft goes far beyond the “minor edits” that have been claimed by DCA and others — for starters, it’s 40% longer — but a lot of the text that I believed to be ZACR’s work turns out in fact to have come from ICANN.

I’ve put the two letters into a single document (pdf), so you can do a side-by-side comparison if you wish.

There’s still no question that ZACR had African government support for its bid and DCA did not. The dispute centers entirely on whether InterConnect had received expressions of support in the correct format.

An Independent Review Process panel declined to issue an opinion on whether ICANN did anything wrong by drafting the letter, though it is mentioned in its final declaration.

ICANN itself says that it did nothing wrong by drafting the letter, and had DCA had any governmental support it would have done exactly the same thing for it.

The draft letter was among hundreds of pages of documents published last night by ICANN following a Documentary Information Disclosure Process request filed by DI a little over a month ago.

ICANN will post more uncensored .africa info

Kevin Murphy, August 27, 2015, Domain Policy

ICANN has committed to post more unredacted documents from its Independent Review Process case with DotConnectAfrica, following a request from DI.

The organization told DI today that it will publish the documents on its web site by August 31, in response to our July 27 Documentary Information Disclosure Request.

I’d asked ICANN to publish, unredacted, the entire declaration of the IRP panel, along with all equally unredacted exhibits and hearing transcripts.

Aware that ICANN enjoys invoking its “Defined Conditions for Non-Disclosure” in order to stop material being released sometimes, I added “that the public interest and transparency benefits to ICANN of disclosing this information far outweigh any benefit that could be accrued by invoking the Defined Conditions for Non-Disclosure”.

In response, ICANN said today (pdf) that it evaluates the public interest when processing DIDP requests, adding:

we have determined that to the extent additional information warrants disclosure and can be released without further consultation with third parties ICANN will publish that unredacted information no later than 31 August 2015. We will send you an email notification upon that publication. To the extent that disclosure of some information designated as confidential by third parties may be warranted and requires further consultation with third parties, or consultation with other third parties not previously consulted, ICANN has already initiated that consultation process. ICANN will publish such further unredacted information promptly upon, and to the extent that we receive, authorization from the relevant parties to release the information, and will send you an email notification upon that publication.

Since the DIDP was filed, ICANN has published over 700 pages of redacted transcripts from two in-person IRP hearings that took place in May.

Today, it also published a letter from DCA’s competing .africa applicant, ZA Central Registry, comprising an ultimately unsuccessful request for a couple of seats at the hearing.

What has not yet been published are the IRP exhibits showing exactly what ICANN did to oil the gears for ZACR’s application.

Due to Kieren McCarthy’s articles at The Register and ICANN’s subsequent admissions, we know that ICANN staff drafted a letter that the African Union Commission could use to express its support for ZACR in the correct format.

However, the IRP exhibits that would give clarity into what exactly ICANN sent and why remain redacted.

Communications between ICANN and InterConnect, which ran the Geographic Names Panel, and references to the Kenyan government’s did-they-didn’t-they support for DCA also remain redacted.