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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.

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

Kevin Murphy, August 5, 2015, 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.

Booking.com uses .africa precedent to challenge .hotels ruling

Kevin Murphy, July 21, 2015, Domain Policy

Booking.com has become the first new gTLD applicant to publicly cite the recent .africa Independent Review Process ruling in an attempt to overturn an adverse ICANN decision.

The challenge relates to the decision by ICANN, under the rules of the new gTLD program, to place applications for .hotels and .hoteis into a contention set due to their potential for visual confusion.

The two strings are heading to auction, where the winner will likely have to fork out millions.

In a missive to ICANN (pdf) last week, Booking.com outside attorney Flip Petillion said that the .africa IRP ruling shows that ICANN has to revisit its decision-making over .hotels.

The letter highlights a wider issue — how can ICANN follow community-established rules whilst sticking to its rather less well-defined Bylaws commitment to be “fair”?

Petillion wrote:

ICANN — and the BGC — has maintained the position 1) that the fact the process established by ICANN was followed is sufficient reason to reject that challenge and 2) that the fact that the process allowed neither for Booking.com to be heard nor for a review of the decision by the ICANN Board is of no relevance.

In the interim, IRP panels have confirmed that this process-focussed position is unsustainable. The ICANN Board has an overriding responsibility for making fair, reasoned and non-discriminatory decisions under conditions of full transparency.

He cites the .africa IRP decision to support this assertion.

Booking.com is the applicant for .hotels, while a different company, Travel Reservations (formerly Despegar Online), has applied for .hoteis, the Portuguese translation.

While both applicants are happy for the two gTLDs to co-exist on the internet, ICANN’s third-party String Similarity Review panel, part of the new gTLD evaluation process, ruled that they cannot.

They’re just too similar — in standard browser sans-serif fonts they can be indistinguishable — and would likely lead to user confusion, the panel decided in February 2013.

Booking.com challenged this decision with a Request for Reconsideration, which was dismissed.

It then filed an IRP, but that concluded this March with the panel awarding a grudging win to ICANN, which it orders should split the costs of the case.

In April, the ICANN board adopted the IRP panel’s findings, saying that the two applicants should remain in the contention set.

Booking.com, along with Travel Reservations, filed a second RfR, challenging the board’s decision, but this was rejected by ICANN’s Board Governance Committee in June.

The ICANN board has not yet formally adopted the BGC’s recommendations — I expect it to consider them at its next scheduled meeting, July 28 — hence Booking.com’s last-ditch attempt to get ICANN to change its mind.

Petillion wrote:

Simply following the processes and procedures developed by ICANN cannot alone be sufficient grounds for declining to review a decision. If the requirements of fairness, reasoned decision making, non-discrimination and transparency have not been met in the implementation of the process and procedures, the ICANN Board must, when invited to, conduct a meaningful review.

In the .africa case, the IRP panel ruled that ICANN should have asked the Governmental Advisory Committee for its rationale for objecting to DotConnectAfrica’s .africa bid, even though there’s nothing in the new gTLD rules or ICANN Bylaws specifically requiring it to do so.

However, in the Booking.com case, the IRP panel raised serious questions about whether the String Similarity Review rules were consistent with the Bylaws, but said that the time to challenge such rules had “long since passed”.

In both cases, ICANN followed the rules. Where the two panels’ declarations diverge is on whether you can win an IRP challenging the implementation of those rules — for DotConnectAfrica the answer was yes, for Booking.com the answer was no.

In a new gTLD program that has produced long lists of inconsistencies; IRP panel decisions appear to be but the latest example.

The question now is how the ICANN board will deal with the BGC recommendation to reject Booking.com’s latest RfR.

If it summarily approves the BGC’s resolution, without doing some extra due diligence, will it be breaking its Bylaws?

Read that controversial .africa letter

Kevin Murphy, July 16, 2015, Domain Policy

Did the African Union Commission really use a letter written by ICANN to express its support for ZA Central Registry’s .africa bid?

Having now obtained and read it, I have my doubts.

I’m publishing it, so you can make your own mind up. Here it is (pdf).

That’s the letter that The Register’s Kieren McCarthy reported yesterday was “ICANN-drafted” and “duly signed by the AUC”

“Essentially, ICANN drafted a letter in support of ZACR, gave it to the AUC, and the AUC submitted the letter back to ICANN as evidence that ZACR should run dot-africa,” The Reg reported.

I don’t think that’s what happened.

What I see is a two-page letter that has one paragraph indisputably written by ICANN and whole bunch of other stuff that looks incredibly remarkably like it was written by the AUC and ZACR.

And that one ICANN paragraph was drawn from the new gTLD program’s Applicant Guidebook, where it was available to all governments.

The Reg reported that ICANN, in the unredacted ruling of the Independent Review Panel, admitted it drafted the letter.

What The Reg didn’t report is that ICANN merely admitted to sending the AUC a letter based on the aforementioned AGB template, and that it was subsequently heavily revised by the AUC.

It was not, I believe, a simple case of the AUC putting its letterhead and John Hancock on an ICANN missive.

I believe that ZACR had quite a big hand in the redrafting too. The stylized “.africa (dotAfrica)” is not how ICANN refers to gTLDs, but it is how ZACR refers to its own brand.

The letter was written in order to satisfy the requirements of the Geographic Names Panel, which reviews new gTLD applications for the required government support.

The original AUC letter (read it here) was simply one paragraph confirming that ZACR had been appointed .africa registry, as the winner of an African Union RFP process.

It didn’t have enough information, or was not specific and formal enough, for the GNP, which issued a “Clarifying Question”.

In response to the CQ, it seems AUC reached out to ICANN, ICANN sent over something not dissimilar to its AGB template, the AUC and ZACR redrafted, edited and embellished it and sent it to ICANN to support their .africa application.

Did ICANN act inappropriately? Maybe. But I’m losing my enthusiasm for thinking about this as a massive scandal.

DCA’s .africa bid officially unrejected by ICANN

Kevin Murphy, July 16, 2015, Domain Policy

ICANN’s board of directors has un-rejected DotConnectAfrica’s application for the new gTLD .africa.

The board held an emergency meeting this morning to consider last Friday’s Independent Review Process decision, which said ICANN’s handling of DCA’s bid was not consistent with its bylaws.

Speaking at the Internet Governance Forum USA in Washington DC in the last half hour, ICANN chair Steve Crocker revealed the following:

We passed a resolution acknowledging the panel’s report — decision — accepting it and taking action. The primary action is to put the the DotConnectAfrica Trust application back in to the evaluation process. And there are other aspects of the panel’s decision that we will have to deal with later. This does not represent a final decision about anything. It just moves that process forward. There will be posting of the resolution and press release probably as we are sitting here.

If you want to catch it yourself, rewind the live stream here to roughly 59 minutes.

This story will be updated just as soon as the press release and resolution are published.

UPDATE:

The resolution has been published.

In it, the board agrees to continue to delay the delegation of .africa to ZA Central Registry, which is the contracted party for the gTLD, to pay the IRP costs as ordered by the panel, and to return DCA’s application to the evaluation process.

It also addresses the fact that the Governmental Advisory Committee has given formal advice that the DCA bid should not be approved.

The ICANN board says that because it has not decided to approve or delegate .africa to DCA, it’s technically not going against GAC advice at this time.

It will also ask GAC to respond to the IRP panel’s criticism of it for providing advice against DCA without transparent justification. The resolution says:

the Board will ask the GAC if it wishes to refine that advice and/or provide the Board with further information regarding that advice and/or otherwise address the concerns raised in the Declaration.

It was essentially the GAC’s lack of explanation, and ICANN’s lack of curiosity about that lack of explanation, that cost ICANN the case and hundreds of thousands of dollars in fees.

How the GAC responds will be interesting. There’s now a solid case to be made that it’s going to have to start putting its rationales in its advice, rather like the ICANN board does with its resolutions.