Behind-the-scenes actions make ICANN culpable in DotAfrica IRP

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ICANN’s behind-the-scenes actions have been brought to light following a long-winded legal battle that put .Africa applicant DCA Trust and ICANN at loggerheads.

As mentioned in a recent article, in deciding the IRP, the Panel has to compare the contested actions (or inactions) of the ICANN Board against the existing stipulations laid down in the Bylaws or Articles of Incorporation of ICANN by focusing on a pre-defined standard of review; and to rule whether such actions or inactions were wrongful and had indeed violated the Bylaws and Articles of Incorporation of ICANN.

The 63-page ruling came about six weeks after an in-person hearing was conducted by the IRP Panel in Washington D.C. on May 22 and May 23, 2015. The Panel declared DCA Trust as the “prevailing party in the IRP” and also ruled that ICANN is to “bear the totality of the costs of this IRP and the totality of the costs of the IRP Provider.”

Following the ruling, DotConnectAfrica Trust stated that it had clearly established three key points during the IRP: that ZA Central Registry lacked any valid endorsements for the .Africa string that it applied for; and that the purported Governmental Advisory Committee Objection Advice against its .Africa application was not by consensus; and that the ICANN Board had seriously erred in accepting the GAC Advice

Precedential Value

The .Africa case which is of precedential value both to the applicant, ICANN and the entire global Internet Community, will have several implications on how the new gTLD Process will be conducted in the future; and is also likely to be of interest to the US Congress, as the case focuses on some of the factors that determines ICANN’s activities to be accountable and transparent if its activities were to be independent of US oversight. There were two applications for the .Africa new gTLD. Onewas submitted by DotConnectAfrica (DCA) Trust, which originally received support from the African Union Commission AUC in 2009 and UNECA in 2008, and the second was submitted by UniForum which later became ZA Central Registry (ZACR) in 2012.

ICANN GAC “Creative Ambiguity” and the violation of principles of fair competition

First among the factors is that some critical issues have been exposed from the .Africa case; chief among them is the involvement of the ICANN Governmental Advisory Committee that was tasked with offering advice on the new gTLD applications. The evident shortcomings in how the GAC Objection Advice was purportedly obtained against DCA’s .Africa new gTLD application were one factor that contributed to ICANN’s loss of the IRP. In particular is the response by the ICANN former Chair Heather Dryden who during her testimony at the hearing intimated that GAC essentially practices “Creative ambiguity” where “we leave things unclear so we don’t have conflict”. This term means that the ICANN GAC just gives advice on an application without providing any rationale or discussion of the concepts that are specified in the new gTLD Guidebook. The GAC Objection Advice also becomes one that was contrived by individuals representing AUC; and the purported AUC-backed application which is in direct competition with DCA’s application was therefore assisted unfairly thereby going against the principle of fair competition which is guaranteed to each applicant by the ICANN Applicant Guidebook.

No Valid Endorsements for ZACR as ICANN Staff ‘inappropriately coordinated’ with the Geographic Names Panel

The second factor that is likely to disqualify the application of the competing ZACR of South Africa is that they appear to have had no valid endorsements for .Africa at the time they applied, apart from the letter of endorsement which was later drafted by ICANN’s head of operations, Dai-Trang Nguyen for the African Union Commission, and then re-submitted back to ICANN and used to pass ZACR’s application. The exposure of this evident irregularity implies that ZACR, who have always boasted to the African Community that they had 75 per cent endorsement, were misrepresenting themselves to global publics since the purported endorsement proved to be nonexistent. These facts were revealed during the discovery process between the parties that was procedurally approved by the Panel, which we reported earlier;

Unredacted versions of IRP document exposed Independent evaluators coordinated with ICANN to pass ZACR

However, given recent reports on unredacted versions of IRP related documents, there are more revelationswhich demonstrated that ICANN Staff ‘inappropriately coordinated’ with the Geographic Names Panel concerning applications for .Africa. Read report from the Register.UK It says in the IRP documents that ICANN not only advised the AUC on how to control the delegation of .AFRICA, but ICANN also coordinated with the ‘independent’ Geographic Names Panel (“GNP”) evaluators in order to ensure that ZACR’s application would pass review. In July 2012, ICANN distributed Geographic Names Panel guidelines to InterConnect Communications (“InterConnect”), the organization that ICANN contracted to perform the string similarity and geographic review during the Initial Evaluation.

These guidelines instructed InterConnect not to apply the endorsements of regional organizations toward the 60% geographic requirement in the AGB. In late August 2012, Mark McFadden of InterConnect contacted ICANN staff to ask whether it would be possible to treat the applications for .AFRICA differently than other applications because both applicants relied on regional organizations for their endorsements, suggesting that ICANN and InterConnect determine which types of endorsements would be acceptable for these applications this is because if the endorsements of regional organizations like the AUC and UNECA were not applied towards the 60% requirement, then neither DCA nor ZACR would have sufficient geographic support. ICANN however, disagreed with InterConnect’s view that UNECA should be considered as a regional organization, although Mr. McFadden explained that UNECA was an intergovernmental African regional organization and should qualify as a relevant public authority on the same basis as the AU. ICANN thus determined that only the AUC endorsements (and not the UNECA endorsements) would be taken into account for the geographic evaluation for both applications. This strike out meant that all the .Africa applicants would not qualify given both had regional support, yet ICANN went ahead to give ZACR an upper hand.

ICANN’s independence and transparency at stake

The third factor is ICANN’s independence and transparency which is now more than ever at stake after it was found that during the evaluation process; ICANN staffs wereon one hand supporting the ZACR application while sabotaging DCA Trust’s application on the other. ICANN was supposed to be an impartialreferee; however it was apparently‘gaming’ the system to help ZACR pass initial evaluation which now costs ICANN its own credibility as evidenced by what was uncovered during the .Africa IRP.

The ICANN Board was also found culpable for accepting the GAC Objection Advice without proper due diligence or consultation with external independent experts.

The fourth factor is that the .Africa new gTLD may not be available soon because more time will now be spent in trying to find the right and justifiable solutions. The complexities that were introduced since the very first time DCA Trust’s AUC endorsement was sabotaged by DCA’s competitors remain unresolved. Similarly, the irregularitiesoccasioned byestablishing a controversial Request for Proposals (RFP) process for .Africa which was deemed to have been discriminatory and anti-competitivefor the benefit ofcertain vested interest groups. All these have been further complicated by the false claim of ZACR having been endorsed by African country governments and the hand of the ICANN GAC in the whole process coupled with the added role that was played by ICANN staffs in unfairly assisting one .Africa applicant over the other.

The ICANN Board convened an emergency meeting to adoptsome resolutions on the IRP declaration by the Panel; and determined that DCA Trust’s .Africa application be taken back into the new gTLD process for evaluation. But what remains constant is that DCA Trust has single-handedly exposed ICANN’s accountability failures and wrongdoings over .Africa, andas the prevailing party in the IRP, DCA Trusthas a host of options to further its cause for justice regarding.Africa.

Finally, it must also be mentioned that this final IRP decision will be noted by the pertinent Committees of the United States Congress and the U.S. Government Accountability Office (GAO) in deciding whether or not to approve the IANA Transition Proposal that will be submitted by ICANN to the U.S. NTIA for Congressional and GAO review and authorization. This IRP ruling portends that the U.S. Congress would most likely withhold its agreement if it considers that ICANN is not yet accountable enough to be entrusted with the IANA Functions Stewardship.

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