ICANN has been opened up to a world of hurt after an independent panel of judges ruled that the organization broke its own bylaws when it kicked DotConnectAfrica’s .africa bid out of the new gTLD program.
The what-the-fuck ruling cuts to the very heart of how ICANN deals with advice from its Governmental Advisory Committee, which comes out of the case looking like a loose canon with far too much power to sway the ICANN board.
Witness testimony published in the panel’s opinion sheds humiliating light on the GAC’s self-defeating habit of supplying ICANN with deliberately vague advice, a practice described by its former chair under oath as “creative ambiguity”.
The ruling does not, however, give DCA a serious shot at winning the .africa gTLD, which has already been contracted to rival ZA Central Registry. More delay is, however, inevitable.
The Independent Review Panel said:
the Panel is of the unanimous view that certain actions and inactions of the ICANN Board (as described below) with respect to the application of DCA Trust relating to the .AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN.
It also unanimously ruled that ICANN should un-reject DCA’s application and allow it to continue through the application process and that ICANN should bear the full $600,000+ cost of the IRP, not including DCA’s legal fees.
It’s an important ruling, especially coming as ICANN seeks to extricate itself from US government oversight, because it implicitly calls on ICANN’s board to treat GAC advice with much less deference.
What’s the backstory?
DCA and ZACR have competing applications for .africa, which is a protected geographic string.
Under new gTLD program rules, only an applicant with support from over 60% of African national governments can be approved. ZACR’s support far exceeds this threshold, whereas DCA enjoys little to no government support at all.
The ICANN board’s New gTLD Program Committee rejected the DCA bid in June 2013, before its Initial Evaluation (which includes the Geographic Names Review) had been completed, based on the GAC’s April 2013 Beijing communique advice.
That advice invoked the GAC’s controversial (and vaguely worded) powers to recommend against approval of any application for any reason, as enshrined in the Applicant Guidebook.
A subsequent Request for Reconsideration (IRP lite) filed by DCA was rejected by ICANN’s Board Governance Committee.
An IRP is the last avenue community members have to challenge ICANN’s actions or inaction without resorting to the courts.
DCA filed its IRP complaint in October 2013 and amended it in January 2014, claiming ICANN broke its own bylaws by rejecting the DCA application based on GAC advice.
The case dragged on, partly because one of the original three-person panel died and had to be replaced, the delay causing much consternation among African GAC members.
What did the IRP panel finally rule?
Yesterday’s ruling avoided deciding on or even commenting on any of DCA’s crazy conspiracy theories, instead limiting itself to the question of whether ICANN’s board and committees acted with bylaws-mandated transparency, fairness and neutrality.
It found that the GAC itself did not act according to these principles when it issued its Beijing advice against DCA.
It found that ICANN did not “conduct adequate diligence” when it accepted the advice, nor did the BGC or NGPC when they were processing the RfR.
In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application.
ICANN did not do that, the panel decided, so it broke its bylaws.
both the actions and inactions of the Board with respect to the application of DCA Trust relating to the .AFRICA gTLD were not procedures designed to insure the fairness required… and are therefore inconsistent with the Articles of Incorporation and Bylaws of ICANN.
Does this mean DCA gets .africa?
No. The IRP panel ruled that DCA’s application must re-enter the application process, presumably at the point it exited it.
DCA’s application never had a final Initial Evaluation result issued. If it were to re-enter IE today, it would certainly be failed by the Geographic Names Panel because it lacks the requisite support of 60% of African governments.
DCA wanted the panel to rule that it should have 18 months to try to secure the needed support, but the panel refused to do so.
The application is still as good as dead, but ICANN will need to go through the motions to actually bury it.
In the meantime, ZACR’s delayed delegation of .africa is to remain on hold.
How embarrassing is this for the GAC?
Hugely. Verbal testimony from Heather Dryden, who was GAC chair at the time of the Beijing meeting, highlights what I’ve been saying for years: GAC advice is regularly so vaguely written as to be useless, inconsistent, or even harmful.
Dryden told the panel at one point: “In our business, we talk about creative ambiguity. We leave things unclear so we don’t have conflict.”
The IRP panel took a dim view of Dryden’s testimony, writing that she “acknowledged during the hearing, the GAC did not act with transparency or in a manner designed to insure fairness.”
The ruling quotes large chunks of text from the hearing, during which Dryden was grilled about the GAC’s rationale for issuing a consensus recommendation against DCA.
Dryden responded by essentially saying that the GAC did not discuss a rationale, and that there was “deference” to the governments proposing consensus objections in that regard.
ARBITRATOR KESSEDJIAN: So, basically, you’re telling us that the GAC takes a decision to object to an applicant, and no reasons, no rationale, no discussion of the concepts that are in the rules?
[DRYDEN]: I’m telling you the GAC did not provide a rationale. And that was not a requirement for issuing a GAC —
HONORABLE JUDGE CAHILL: But you also want to check to see if the countries are following the right — following the rules, if there are reasons for rejecting this or it falls within the three things that my colleague’s talking about.
[DRYDEN]: The practice among governments is that governments can express their view, whatever it may be. And so there’s a deference to that. That’s certainly the case here as well.
This and other quoted sections of the hearing depict the GAC as a body that deliberately avoids substantive discussions and deliberately provides unclear advice to ICANN, in order to avoid offending its members.
Does this mean all GAC advice on new gTLDs is open to appeal now?
Maybe. There are numerous instances of the ICANN board accepting GAC advice without demanding an explanation from the GAC.
At a bare minimum, the applicant for .gcc, which was rejected in the same breath as .africa, now seems to have a case to appeal the decision. The applicant for .thai is in a very similar situation.
Amazon’s lawyers will no doubt also be poring over yesterday’s decision closely; its .amazon bid was also killed off by GAC advice.
But in the case of .amazon, it would be hard to argue it was a .africa-style summary execution. ICANN took extensive advice and delayed its decision for a long time before killing off that application.
The ruling essentially calls the part of the Applicant Guidebook that gives the GAC its strong advisory powers over new gTLD applications into question.
Literally hundreds of new gTLD applications were affected by the Beijing communique.
Anything else of note?
First, large parts of the decision have been redacted. The redactions mostly appear to relate to sensitive documents disclosed between the parties (reading between the lines, I think some of them related to DCA’s purported support from a certain African government) that the panel ruled should remain private last September.
Second, the decision inexplicably quotes the ICANN bylaws text “MISSION AND CORE VALUES” as “MISSION AND CORE (Council of Registrars) VALUES”, in what appears to be a weird search-and-replace error by an unknown party. CORE (Council of Registrars) is of course a registry back-end provider with apparently no involvement in .africa whatsoever.
Third, it seems I’ve been elected Pope. I hereby select “Dave” as my Papal name and will commence my program of donating all Church assets to the poor forthwith.
Did an Independent Review Process panel get it wrong when it accused ICANN of failing to implement proper accountability mechanisms, or did it actually highlight a more serious problem?
As we reported yesterday, an IRP panel has ordered ICANN to not delegate ZA Central Registry’s .africa gTLD until it’s heard an appeal by failed rival bidder DotConnectAfrica.
IRP is ICANN’s last avenue of appeal for organizations that believe they’ve been wronged by ICANN decisions. Due to the duration of the process and the need for legal representation, it’s extremely expensive.
The IRP panel in the .africa case based its decision largely on the fact that ICANN has failed to create a “standing panel” of would-be IRP panelists, something the panel said would have sped up the process.
A “standing panel” is supposed to be six to nine panelists-in-waiting — all respected jurists — from which three-person IRP panels could be selected when needed in future.
DCA would not have needed to file for an emergency injunction against .africa’s delegation had this standing panel been created, the panel said.
According to the IRP panel, the creation of a standing panel has been “required” by the ICANN bylaws since April 2013, and ICANN has “failed” to follow its own rules by not creating one. It wrote:
the Panel is of the view that this Independent Review Process could have been heard and finally decided without the need for interim relief, but for ICANN’s failure to follow its own Bylaws… which require the creation of a standing panel
But ICANN disagrees, getting in touch with us today to point out that the panel only partially quoted the ICANN bylaws.
This is the bit of the bylaws the panel quoted:
There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN’s mission and work from which each specific IRP Panel shall be selected.
There seems to me to be little ambiguity in that paragraph; ICANN “shall” create a standing panel.
But ICANN reminds us that the IRP panel ignored a second bit of this paragraph, which states:
In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding.
Basically, the bit of the bylaws stating that ICANN “shall” create a standing panel is almost immediately negated by a bit that explains what is supposed to happen if ICANN does not create a standing panel.
Is ICANN “required” (the panel’s word) to create this standing panel or not? ICANN seems to think not, but the panel thinks otherwise.
I have no opinion because, luckily, I’m not a lawyer.
But I did a bit of digging into the public record to figure out why the bylaws are so confusing on this issue and what I found is slightly worrying if you’re concerned about ICANN accountability.
The bylaws paragraph in question was added in April 2013, but it has its roots in the findings of the first Accountability and Transparency Review Team, which is the key way ICANN’s accountability is reviewed under the 2009 Affirmation of Commitments with the US government.
The ATRT said in 2010 (pdf) that ICANN should “seek input from a committee of independent experts on the restructuring of the three review mechanisms” including the IRP.
ICANN did this, convening a three-person Accountability Structures Expert Panel, made up of widely respected corporate/legal brains Mervyn King, Graham McDonald and Richard Moran
It was this ASEP that came up with the idea for a standing panel, which it said would speed up IRP decisions and reduce costs.
Members of the standing panel would be paid an annual retainer even when not working on an IRP, but it would be cheaper because IRP complainants and ICANN wouldn’t have to repeatedly explain to a new panel of doddery old ex-judges what ICANN is and does.
The ASEP, in its report (pdf) did not specify what should happen if ICANN decided not to implement its recommendation on the standing panel.
I can’t know for sure, but from the public record it seems that the confusing second part of the bylaws amendment was the creation of the ICANN board, possibly based on a single comment from gTLD registries.
The provision about a standing panel was formally added to the bylaws with an April 2013 resolution of ICANN’s board of directors, which followed a December 2012 resolution that approved the change in principle.
The second part of the amendment, the bit about what happens if ICANN does not institute a standing panel, was added at some point between those two resolutions.
The April resolution sheds a little light on the reason for the addition, saying (with my added emphasis):
Whereas, as contemplated within the [December 2012] Board resolution, and as reflected in public comment, further minor revisions are needed to the Bylaws to provide flexibility in the composition of a standing panel for the Independent Review process (IRP).
Resolved (2013.04.11.06), the Bylaws revisions to Article IV, Section 2 (Reconsideration) and Article IV, Section 3 (Independent Review) as approved by the Board and subject to a minor amendment to address public comments regarding the composition of a standing panel for the IRP, shall be effective on 11 April 2013.
The notes to the resolution further explain (again with my emphasis):
The Bylaws as further revised also address a potential area of concern raised by the community during the public comments on this issue, regarding the ability for ICANN to maintain a standing panel for the Independent Review proceedings. If a standing panel cannot be comprised, or cannot remain comprised, the Bylaws now allow for Independent Review proceedings to go forward with individually selected panelists.
The “minor amendment” referred to in the resolution seems to have enabled ICANN to basically ignore the ASEP recommendations, which (remember) stem from the ATRT review, for the last 12 months.
The April 2013 resolution was on the consent agenda for the meeting, so there was no minuted discussion by the board, but it seems pretty clear that “public comments” are responsible for the second part of the bylaws amendment.
But whose public comments?
When the ASEP report was open for comment, only two people responded — the Registries Stakeholder Group and former ICANN director Alejandro Pisanty, apparently commenting in a personal capacity.
On the subject of the proposed standing panel, the RySG said it wasn’t happy:
We also are concerned with the concept of standing panels for the IRP. A key component of the IRP is that the review is “independent.” To keep this independence, we believe that service on an IRP tribunal should be open to all eligible panelists, not just those with previous experience with or knowledge of ICANN. Determining whether an organization has complied with its bylaws or articles of incorporation should not require historic knowledge of the organization itself, and we believe that any jurist generally qualified by the IRP provider should be more than capable of acting as a panelist for an IRP.
It wasn’t the RySG’s main concern, and it wasn’t given much space in its comment.
Pisanty, commenting during the comment-reply period, seemed to disagree with the RySG, saying that the ongoing institutional knowledge of a standing panel could be a boon to the IRP.
When the ASEP report was discussed at a lightly attended early-morning session of the ICANN Toronto meeting in October 2012, the only person to comment on the standing panel was Neustar lawyer Becky Burr, and she liked the idea (transcript).
It’s not what you’d call a groundswell of opposition to the standing panel idea. There were few opinions, those opinions were split, and if anything the balance of commentary favors the notion.
In any event, when ICANN compiled its usual compilation report on the public comments (pdf) its legal staffer said:
After review of the comments, no changes to the ASEP recommendations are recommended, and the report will be forwarded to the Board for consideration and action, along with the proposed Bylaws amendments.
ICANN staff, it seems, didn’t think the RySG’s (lone?) opposition to the standing panel concept was worth messing with the ASEP’s recommendations.
And yet the ICANN board added the text about what happens in the event of a standing panel not existing anyway.
I could be wrong, but it does look a little bit like the ICANN board giving itself a carte blanch to ignore the recommendations of the ASEP, and therefore, indirectly, the ATRT.
ICANN may well have a point about the .africa IRP panel inappropriately ignoring some key sentences in the ICANN bylaws, but I can’t help but wonder how those sentences got there in the first place.
ZA Central Registry’s bid for the .africa new gTLD has been put on ice by an arbitration panel which admonished ICANN for failing to follow its own bylaws.
If .africa were to be delegated, which could have happened as early as Thursday — ZACR and ICANN have already signed a Registry Agreement — it would render the IRP’s decision moot, the panel found.
This ruling doesn’t mean ICANN has lost the case, just that it’s temporarily enjoined from delegating .africa until the final decision has been made by the IRP panel.
However, the panel had some stern words for ICANN, saying that the matter could have been settled months ago had ICANN only followed its own bylaws.
In the Panel’s unanimous view, it would be unfair and unjust to deny DCA Trust’s request for interim relief when the need for such a relief by DCA Trust arises out of ICANN’s failure to follow its own bylaws.
ICANN’s board of directors passed a resolution in April 2013 calling for the creation of a “standing committee” of nine potential IRP panelists, from which each three-person IRP panel could be drawn.
But, over a year later, it has not created this committee, the current IRP panel said. This led to the delay that forced DCA to request the emergency injunction.
ICANN’s basically been told by one of its own accountability mechanisms that that accountability mechanism is inadequate, at a time when its accountability mechanisms are under the world’s spotlight.
Just last week, the organization launched an accountability review that it said it “interdependent and interrelated” to the process of transitioning IANA away from US government stewardship.
Yeah, it’s embarrassing for ICANN. Doubly so because it’s been beaten by a company so incompetent it accidentally applied for the wrong gTLD.
For ZACR, the panel reckons the delay in getting .africa delegated will likely last “a few months”.
ICANN has signed a Registry Agreement with ZA Central Registry for the new gTLD .africa, despite the string being subject to a legal dispute.
The RA was signed with the South African applicant on Monday.
Rival .africa applicant DotConnectAfrica filed an Independent Review Process complaint against ICANN in January, claiming the rejection of its bid, which came because it lacked government support, was “unfair, discriminatory, and lacked appropriate due diligence and care”.
Now that ZACR is a contracted party — meaning that .africa is likely to hit the root in two or three months — it will be very difficult for DCA to get appropriate recompense should it win the IRP.
Fortunately for ICANN, I think there’s a better chance of me getting elected Pope.
UniForum, which runs South Africa’s .za country code, reportedly is applying to ICANN for three local city top-level domains.
The company, which also goes by the name of ZA Central Registry, is going for .capetown, .durban and .joburg (for Johannesburg), according to a report in MyBroadband.co.za.
That’s in addition to its controversial African Union-backed .africa bid.
ZACR is one of several ccTLD registries to get into the new gTLD game. In Europe, Nominet (.uk), Afnic (.fr and others), SIDN (.nl) and Nic.at have already announced applications.