Robin

Thanks so much - fascinating and shocking.

Matthew

On 7/22/2015 8:43 AM, Robin Gross wrote:
> Hi all,
>
> I recently wrote this analysis of the .africa Independent Review Panel 
> (IRP) Declaration, which has implications for other gtlds that may 
> have been similarly denied.
>
> Thanks,
> Robin
>
> http://www.ipjustice.org/internet-governance/icann-accountability-deficits-revealed-in-panel-ruling-on-africa/
>
>
>     ICANN Accountability Deficits Revealed in Panel Ruling on .AFRICA
>
> *“Fortress ICANN” No Longer Able to Shield Itself from Accountability*
>
> In an important test of ICANN’s primary accountability mechanism, its 
> Independent Review Process (IRP), the organization has been handed a 
> stinging blow over its mishandling of the bid for the new generic 
> Top-Level Domain (gTLD) .AFRICA.
>
> At the crux of the issue are two competing applications for the 
> .AFRICA new gTLD and the decision by ICANN’s Board to abdicate its 
> responsibility to ensure that ICANN’s evaluation and subsequent 
> rewarding of the domain was carried out fairly, transparently, and in 
> accordance with the organization’s Bylaws, Articles of Organization, 
> and established policies.
>
> The unanimous IRP Panel of 3 distinguished adjudicators declared that 
> both the actions and inactions of ICANN’s Board with respect to the 
> application of DotConnect Africa Trust for the .AFRICA gTLD were 
> inconsistent with ICANN’s Articles of Incorporation and Bylaws. The 
> Panel found that both ICANN’s Board, and its constituent body, the 
> GAC, breached their obligations to act transparently and in conformity 
> with procedures that ensured fairness.
>
> As a result, the Panel recommended that ICANN continue to refrain from 
> delegating the .AFRICA gTLD and permit DCA Trust’s application to 
> proceed through the remainder of the new gTLD application process. 
> Although the award did not include reimbursing DCA Trust’s legal fees 
> and expenses, ICANN was found to be liable for bearing all the costs 
> of the IRP and the totality of the costs of the IRP provider, more 
> than U.S. $400,000.
>
> Several days after the Panel’s unanimous declaration, the ICANN Board 
> of Directors met on 16 July 2015 and decided to accept the Panel’s 
> finding and place DCA Trust’s application back in the evaluation 
> process. Given the growing pressure on ICANN to accept meaningful 
> accountability reform, including an independent IRP that is truly 
> capable of correcting the organization’s mistakes, the Board had 
> little choice but to accept the Panel’s recommendation.
>
> The Panel noted that the IRP is the only independent third-party 
> process that allows review of board actions to ensure their 
> consistency with the Articles of Incorporation and Bylaws. Furthermore 
> ICANN requires all new gTLD applicants to relinquish all their rights 
> to seek redress against ICANN in courts of law for any harm caused by 
> ICANN or any misconduct by ICANN.
>
> Accountability requires that an organization explain or give reasons 
> for its activities, accept responsibility for them, and disclose the 
> results in a transparent manner. Not only did ICANN fail to provide a 
> rationale for denying DCA Trust’s application, it did not even require 
> that a reason be provided before killing the application that ICANN 
> was paid $185,000 to evaluate fairly. Neither principles of equity nor 
> ICANN’s corporate Bylaws and Articles would allow that decision to 
> stand unchallenged.
>
> *ICANN’s Board Violated Its Obligations of Due Diligence and Fairness*
>
> After ICANN’s Governmental Advisory Committee (GAC) issued “consensus 
> advice” objecting to DCA Trust’s application, ICANN’s Board summarily 
> awarded the .AFRICA domain to the African Union Commission, DCA 
> Trust’s competitor. When DCA Trust filed for a reconsideration of that 
> Board decision based on irregularities and non-transparency of the GAC 
> decision making process and also based on allegations of staff 
> misconduct discriminating against DCA Trust, the reconsideration 
> request was also dismissed out of hand by ICANN’s Board.
>
> However ICANN’s Bylaws require the organization’s Board and its 
> internal constituent bodies to operate to the maximum extent feasible 
> in an open and transparent manner and consistent with procedures 
> designed to ensure fairness.
>
> Due diligence required a conversation with the GAC about its 
> objection, even where the advice was consensus advice. But ICANN’s 
> Board was found to give undue deference to the GAC objection and 
> failed to investigate the basis for the decision, even though it is 
> consensus advice.
>
> This IRP declaration is important because it implies the board can no 
> longer passively accept GAC consensus advice to object to a new gTLD 
> application (or anything else) without conducting adequate diligence 
> into the decision making process and exercising independent judgment 
> of its own. ICANN’s Board cannot hide behind murky “GAC objections” to 
> block applications given the Board’s affirmative duties of due 
> diligence and fairness in carrying out its activities.
>
> What this ruling reveals is that GAC has been granted too much 
> autonomy in ICANN’s decision making process given the Board’s ultimate 
> responsibility for GAC as a “constituent body” of ICANN. But ICANN’s 
> Board has no involvement in, much less control over, whether the GAC 
> grants to any party voting membership status; that decision remains 
> within the sole discretion of the GAC. Thus, although the Board is 
> legally responsible for the decisions, GAC holds a growing power over 
> those decisions, but bears no legal responsibility for them.
>
> ICANN’s board failed to conduct due diligence and investigate if the 
> organization’s constituent bodies, the GAC in particular, were 
> operating in a manner of openness, transparency, and fairness.
>
> Because the board did not investigate allegations of inappropriate 
> staff conduct after being put on notice of discriminatory actions, it 
> was found to have violated the organization’s Bylaws’ obligation to 
> exercise appropriate care and diligence in carrying out its duties and 
> activities. By failing to apply ICANN procedures in a neutral and 
> objective manner with procedural fairness, ICANN breached its Articles 
> and Bylaws.
>
> *ICANN’s Board Gave Improper Deference to Unaccountable Government 
> Advisory Committee*
>
> The Guidebook lists three specific reasons why GAC could issue a 
> consensus objection to a gTLD application, yet upon investigation, the 
> IRP Panel uncovered that GAC is not constrained in any manner, and in 
> operation, it can object to a domain name application for any reason 
> or for no reason at all.
>
> The Panel noted that GAC’s own witness, its former Chair, Heather 
> Dryden, admitted during the IRP hearing that GAC did not act with 
> transparency nor in a manner designed to ensure fairness.
>
> In her testimony, GAC’s former Chair explained that, “there isn’t GAC 
> agreement about what the rights are” of the contending parties, and 
> that “not all countries have a shared view about what those entities … 
> should be able to do.” Dryden went on to explain, “because that would 
> only get clarified if there is a circumstance where that link is 
> forced. In our business we talk about creative ambiguity. We leave 
> things unclear so we don’t have conflict.”
>
> Ms. Dryden also stated that the GAC made its decision without 
> providing any rationale and primarily based on politics rather than on 
> potential violations of national laws and sensitivities. Indeed she 
> testified that GAC is not required to provide any rationale with its 
> consensus objections.
>
> *Testimony from its former Chair at an IRP hearing was shockingly 
> illuminating on how GAC reaches decisions:*
>
> Arbitrator Kessedjian:
> So, basically you’re telling us that the GAC take a decision to object 
> to an applicant, and no reasons, no rationale, no discussion of the 
> concepts that are in the rules?
>
> The Witness:
> 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 are 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.
>
> The Witness:
> 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. The – if a country tells – 
> tells the GAC or says it has a concern, that not really something that 
> – that’s evaluated, in the sense you mean, by the other governments. 
> That’s not the way governments work with each other.”
>
> Honorable Judge Cahill:
> So you don’t go into the reasons at all with them?
>
> The Witness:
> To the issue of consensus objection, no.
>
> But the Panel was unimpressed with such a sloppy decision making 
> process, particularly given ICANN’s duty to act the public interest 
> and to obey its own Bylaws. According to the Panel:
>
> “ICANN was bound by its Bylaws to conduct adequate diligence to ensure 
> that it was applying its procedures fairly. Section 1 of Article III 
> of ICANN’s Bylaws, require it and its constituent bodies to “operate 
> to the maximum extent feasible in an open and transparent manner and 
> consistent with procedures designed to ensure fairness. The Board must 
> also as per Article IV, Section 3, Paragraph 4 exercise due diligence 
> and care in having a reasonable amount of facts in front of it.”
>
> Thus ICANN Board was legally required to conduct a meaningful review 
> of its previous decision to accept the GAC objection advice and it did 
> not. The Panel declared, “[I]n 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.” The Panel said it 
> would have had a similar expectation with respect to the Board’s 
> response to the GAC consensus objection.
>
> Instead of investigating the conflict or providing a meaningful 
> reconsideration of its prior decision, the Board simply accepted the 
> GAC objection as if it were definitive on the matter, rather than an 
> input to consider. The law does not allow ICANN’s Board to abdicate 
> its responsibility to govern ICANN to the GAC; nor may it violate its 
> Bylaws’ obligations to conduct ICANN’s affairs with fairness and 
> transparency, simply because GAC desires a specific policy objective.
>
> ICANN’s claim that “the Guidebook explicitly states that Early 
> Warnings may be issued for any reason” did not hold much sway with the 
> Panel, which declared that ICANN must follow rules, notably its Bylaws 
> and Articles, which require transparency and fairness in the 
> administration of its duties.
>
> At the 16 July special Board meeting, ICANN’s Board stated it would 
> ask the GAC if it wishes to refine its consensus advice to object to 
> DCA Trust’s application, provide further information regarding that 
> advice, or otherwise address the concerns raised in the Panel’s 
> declaration regarding GAC. The continued development and impact of GAC 
> advice on ICANN’s decision-making process is particularly worth 
> watching going forward.
>
> *ICANN Staff’s Various Attempts to Impede IRP Accountability*
>
> The Panel noted a number of times throughout the lengthy IRP process 
> when ICANN staff attempted to reduce the ability of the Panel to 
> provide meaningful accountability.  Just as ICANN’s Cross Community 
> Working Group on Accountability begins to examine “ICANN staff 
> accountability” in the overall accountability framework of the 
> organization, the Panel’s declaration is all too illuminating on the 
> significant hurdles one must traverse when trying to hold ICANN 
> accountable for its actions.  At every turn, ICANN staff, particularly 
> its lawyers, attempted to erect barriers in the process that would 
> insulate the organization from responsibility and render the IRP impotent.
>
> /“The Panel is also of the view that any attempt by ICANN in this case 
> to prevent it from carrying out its independent review of ICANN’s 
> Board’s actions in the manner that the Panel considers appropriate 
> under the circumstances deprives the accountability and review process 
> set out in the Bylaws of any meaning.”/
>
> Some examples that came out during the proceedings:
>
> *ICANN claimed the Panel could not examine witnesses.* The Panel 
> decided otherwise and noted that both ICANN’s Bylaws and the 
> Supplementary Rules require an IRP Panel to examine and decide whether 
> the board has acted consistently with it obligations. Without the 
> ability to examine witnesses and test the veracity of their claims, 
> the Panel would be unable to ensure that the parties to an IRP are 
> treated with equity and given a fair opportunity to present their case.
>
> *ICANN claimed the Panel could not suggest a remedy if violations were 
> found.* The Panel disagreed with ICANN’s claim because if the IRP 
> mechanism is intended to provide a remedy for a claimant materially 
> injured or harmed by Board action or inaction, then naturally the IRP 
> Panel may recommend how the ICANN Board might fashion a remedy to 
> redress such injury or harm.
>
> *ICANN claimed the Panel’s standard of review was to be “deferential” 
> to the board of directors*, rather than a de novo standard, which is 
> an objective and independent one, examining whether the Board acted or 
> failed to act in a manner inconsistent with ICANN’s Articles or 
> Bylaws. The Panel declared that the IRP was specifically designed and 
> set up to offer the Internet community, a de novo standard of review 
> that would ensure that ICANN acted in a manner consistent with its 
> Articles and Bylaws.
>
> *ICANN claimed that an IRP was not permitted to address whether the 
> GAC did anything inappropriate* and could only consider Board actions 
> or inactions. The Panel, however, noted that GAC was clearly a 
> constituent body of ICANN and was therefore required to act 
> transparently and in a neutral and objective manner and that it was 
> empowered to examine that conduct.
>
> Astonishingly, before publishing the Panel’s declaration, ICANN 
> redacted key text from the declaration in at least 39 separate places 
> to further hide its misdeeds. According to sources who have seen the 
> un-redacted ruling, the deleted text primarily discusses specific 
> instances of ICANN staff misconduct including ICANN’s senior 
> management’s drafting of the letter which it then relied upon to 
> provide the winning bid for .AFRICA to DCA Trust’s competitor. There 
> appear to be redactions also of the GAC former chair’s testimony 
> explaining how “the political process” at ICANN works.
>
> Clearly it is inappropriate for ICANN to abuse its position in the 
> publication of the IRP declaration to censor instances of ICANN staff 
> misconduct and GAC unaccountability from public view. As the redacted 
> declaration is already significantly damning with respect to revealing 
> ICANN accountability failures, it begs the question as to just how 
> much more unflattering the redacted text must be. Even after ICANN was 
> severely rebuked by the Panel in its ruling for its many instances of 
> inappropriate conduct in this matter, ICANN continued with its usual 
> practice of hiding the extent of its misconduct from the public it 
> allegedly serves. A new culture of transparency in every aspect of key 
> decisions must take root at ICANN before the organization can be given 
> any greater responsibility to serve the public, rather than not itself.
>
> The Panel stated that, “ICANN is not an ordinary California nonprofit 
> organization. Rather it has a large international purpose and 
> responsibility to coordinate and ensure the stable and secure 
> operation of the Internet’s unique identifier systems.”
>
> *Important Precedent Over-Turning “Presumption” that GAC Advice Must 
> be Obeyed*
>
> This ruling is significant in many respects, including demonstrating 
> the absolute necessity of having an IRP that is truly independent of 
> ICANN’s Board and staff. Managing the Internet’s domain name system 
> requires a level of competence and trustworthiness to the public 
> interest that ICANN has not yet shown itself mature enough to 
> undertake without an independent adjudicator of ICANN’s actions.
>
> This ruling could also have important precedential value for the many 
> other new gTLDs, which have also been negatively impacted by GAC 
> advice or objections that may not comport with ICANN’s legal 
> obligations to follow rules in a fair, transparent, and objective 
> manner after conducting due diligence.
>
> The “presumption” that GAC consensus objections to new domains shall 
> be obeyed by ICANN’s Board has been solidly overturned by the Panel 
> since neither the Board, nor the GAC itself have required the GAC to 
> follow rules or process, to operate fairly, or even state reasons to 
> objections that can be addressed.
>
> Furthermore, the Board may not abdicate its responsibility and hide 
> behind GAC decisions without undertaking its own independent inquiry 
> and exercising its own judgment as to whether proper process and 
> appropriate decisions were taken. The light shown on the 
> non-transparent and lawless nature of ICANN’s GAC calls the actions 
> and structure of the entire organization into question.
>
>     ICANN cannot promise the world transparency, fairness, due
>     diligence, and objectivity in its exercise of these important
>     responsibilities at the same time that it does not require those
>     qualities of its constituent bodies, including GAC, the Board, and
>     ICANN’s staff.
>
> Another important consideration from this ruling is the tremendous 
> cost and time that one must invest to try to hold ICANN accountable. 
> DCA Trust could have easily spent a million dollars to bring this 
> action to completion in lawyers’ fees, panelists’ fees, and other 
> expenses. New gTLD applicants are required to waive all their rights 
> to legal enforcement by courts of law, so the IRP is the only 
> independent mechanism available to those harmed by ICANN, and one must 
> be prepared to spend millions of U.S. Dollars in order to have their 
> rights enforced. Not exactly a mechanism that is accessible for 99% of 
> the world’s population, despite ICANN’s global impact and claim of 
> public service. In any event, the .AFRICA is among the most important 
> and precedential IRP declarations ICANN has ever received.
>
>
>   ICANN Staff Redactions:
>
> By Robin Gross <http://www.ipjustice.org/author/patrick-2/>|July 16th, 
> 2015|Internet Governance 
> <http://www.ipjustice.org/category/internet-governance/>, Publications 
> <http://www.ipjustice.org/category/publications/>

-- 
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 (0)771 247 2987