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Africa hands coffin nails to DotConnectAfrica evaluators

Kevin Murphy, October 1, 2015, Domain Policy

The African Union and a United Nations commission have formally told ICANN that they don’t support DotConnectAfrica’s bid for .africa.

When it comes to showing governmental support, a necessity under ICANN’s rules for a geographic gTLD applications, the UN Economic Commission for Africa was DCA’s only prayer.

Company CEO Sophia Bekele had managed to get somebody at UNECA to write a letter supporting .africa back in 2008, and DCA has continued to pretend that the letter was relevant even after the entire continent came out in support of rival applicant ZA Central Registry.

During its Independent Review Process appeal, DCA begged the IRP panel to declare that the 2008 letter showed it had the support of the 60% of African governments that it requires to be approved by ICANN.

The panel naturally declined to take this view.

Now UNECA has said in a letter to the African Union Commission (pdf) dated July 20, which has since been forwarded to ICANN:

ECA as United Nations entity is neither a government nor a public authority and therefore is not qualified to issue a letter of support for a prospective applicant in support of their application. In addition, ECA does not have a mandate represent the views or convey the support or otherwise of African governments in matters relating to application for delegation of the gTLD.

It is ECA’s position that the August 2008 letter to Ms Bekele cannot be properly considered as a “letter of support or endorsement” with the context of ICANN’s requirements and cannot be used as such.

The AUC itself has also now confirmed for the umpteenth time, in a September 29 letter (pdf), that it doesn’t support the DCA bid either. It said:

Any reliance by DCA in its application… proclaiming support or endorsement by the AUC, must be dismissed. The AUC does not support the DCA application and, if any such support was initially provided, it has subsequently been withdrawn with the full knowledge of DCA even prior to the commencement of ICANN’s new gTLD application process.

The AUC went on to say that if DCA is claiming support from any individual African government, such claims should be treated “with the utmost caution and sensitivity”.

That’s because a few years ago African Union member states all signed up to a declaration handing authority over .africa to the AUC.

The AUC ran an open process to find a registry operator. DCA consciously decided to not participate, proclaiming the process corrupt, and ZACR won.

The new letters are relevant because DCA is currently being evaluated for the second time by ICANN’s independent Geographic Names Panel, which has to decide whether DCA has the support of 60% of African governments.

ZACR passed its GNP review largely due to a letter of support from the AUC.

If DCA does not have the same level of support, its application will fail for the second time.

The 2008 UNECA letter was the only thing DCA had left showing any kind of support from any governmental authority.

Now that’s gone, does this mean the DCA application is dead?

No. DCA has a track record of operating irrationally and throwing good money after bad. There’s every chance that when it fails the Geographic Names Review it will simply file another Request for Reconsideration and then another IRP, delaying the delegation of .africa for another year or so.

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.

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.

ICANN execs helped African Union win .africa — report

Kevin Murphy, July 16, 2015, Domain Policy

Top ICANN executives helped the African Union Commission win the .africa gTLD on behalf of its selected registry, according to a report.

Kieren McCarthy at The Register scooped last night that Dai-Trang Nguyen, head of gTLD operations at ICANN, drafted the letter that the AU used to demonstrate governmental support for ZA Central Registry’s bid.

The basis of the report is the unredacted version of the Independent Review Process panel’s ruling in the DotConnectAfrica case.

McCarthy reports that the uncensored document shows ICANN admitting that Nguyen wrote the AU’s letter, but that “did not violate any policy” and that there was “absolutely nothing wrong with ICANN staff assisting the AUC.”

Apparently, the original AU-drafted letter did not meet the requirements of the Geographic Names Panel, generating a “Clarifying Question”, so the AU reached out to ICANN for help creating a letter that would tick the correct boxes.

The unredacted ruling also contains an allegation that ICANN told InterConnect — one of the three corporate members of the GNP — that the AU’s letter should be taken as representing all of its member states, El Reg reports.

DotConnectAfrica is expected to be shortly returned to the new gTLD application process, and then kicked out again due to its failure to meet the GNP’s criteria of support from 60% of African governments.

I’m in two minds about how damaging these new revelations are.

On the one hand, ICANN staff intervening directly in an Initial Evaluation for a contested gTLD looks incredibly bad for the organization’s neutrality.

One would not expect ICANN to draft, for example, a letter of support for a Community Priority Evaluation applicant.

I don’t think it changes the ultimate outcome for DCA, but it may have inappropriately smoothed the path to approval for ZACR.

On the other hand, the new gTLD program’s Applicant Guidebook actually contains a two-page “Sample Letter of Government Support” that governments were encouraged to print off on letterheaded paper, sign, and submit.

Giving governments assistance with their support letters was in fact baked into the program from the start.

So did the AUC get special treatment in this case, or did Nguyen just send over the AGB sample letter (or a version of it)? That may or may not become clear if and when McCarthy publishes the unredacted ruling, which he has indicated he hopes to do.

A related question might be: how did the AUC screw up its original letter so badly, given the existence of a compliant sample letter?

The optics are many times worse for ICANN because all this stuff was originally redacted, making it look like ICANN was trying to cover up its involvement.

But the redactions were not a unilateral ICANN decision.

ICANN, DCA and the IRP panel agreed after negotiation that some documents revealed during disclosure should be treated confidentially, according to this September 2014 order (pdf). References to these documents were redacted in all of the IRP’s documents, not just the ruling.

What the revelations certainly seem to show is another example of ICANN toadying up to governments, which really has to stop.