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Rage Against the ICANN Machine

Stéphane Van Gelder

I'm going to do what no professional journalist should ever do: take a story at face value. So full disclosure: I have not checked the facts behind the story that sparked this little rant I'm about to embark on. But I've known the author for a number of years as being a consummate professional when it comes to reporting facts. And I've known ICANN, the organisation, for even longer. I have therefore seen first hand the organisation's ability to be at times borderline duplicitous in its attempts to reach a desired result.

The story is Kieren McCarthy's piece just published by The Register and claiming that ICANN had a hand in skewing the results of an ongoing battle over who should operate the new gTLD .africa.

Kieren's article, and the broader issue of the .africa debacle, is set to become a major thorn in ICANN's side. I won't waste the reader's time recounting both, as they are readily accessible online.

What I will do is make a plea. If ICANN staff did actually take an active role in helping one of the .africa belligerents against the other… and if they then proceeded to purposefully redact all traces of this involvement from the report on the .africa independent review proceedings… then it's time to re-empower the community to help it act as a control rod for ICANN's tendency to go into full meltdown mode and play God.

As it stands today, ICANN is a 300-plus army of staffers ready to swamp the community, the domain industry and anyone else that deals with the organisation on a regular basis with a seemingly endless flow of long-winded processes, reports and procedures. It's sometimes so bad that "victims" feel they are up against Soviet-era style bureaucracy designed to, at best, discourage, at worse despair them into submission.

It's not that ICANN staff itself is to blame. They are just part of the system. The ICANN Machine. It is that machine that must be counterbalanced by a community that is far from powerless. ICANN meetings now regularly run over the 2000-participant mark. That's plenty of people ready to uphold the standards they believe ICANN should adhere to.

True, the community is as disparate as the human population of this planet. But that is a strength more than it is a weakness. Diversity breeds ingenuity, responsibility, greater understanding and respect of differing opinions and cultures.

Moreover, for at least one key core value, the community is united. All the volunteers that bother to commit to those long hours on teleconferences and face-to-face meetings to do ICANN's business really BELIEVE in the "everyone has a voice, and no voice is louder than any other voice" model of governance that ICANN has been experimenting with since it was created in 1998.

United in defence of that ideal, the community can push ICANN to become more accountable, transparent… and just as important, neutral. Any entity that finds itself in a de-facto regulatory role ends up at risk of overstepping into "regulatory capture". The organisation itself is so intent on having the last word, it becomes more meddlesome than effective. Even in situations, such as the one that exists with ICANN, where there are structures in place that are supposed to be authoritative in specific areas of policy development…

Episodes like the ".africa affair" may actually help galvanise the community into pushing back on the ICANN Machine attempting to control and rewrite everything like The Matrix' Agent Smith trying to imprint itself on Neo.

Simply put, by continually making its voice heard when it can, and when it counts, the community can keep ICANN honest!

By Stéphane Van Gelder, Consultant. More blog posts from Stéphane Van Gelder can also be read here.

Related topics: ICANN, Internet Governance, Top-Level Domains

 
   

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Comments

I made the mistake of taking a Kevin Murphy  –  Jul 17, 2015 12:15 PM PDT

I made the mistake of taking a story at face value recently, even though I've known the reporter for many years and, with that experience, should have known better.

I think that Kieren's piece was an Rubens Kuhl  –  Jul 17, 2015 2:17 PM PDT

I think that Kieren's piece was an enormous tabloid-like exaggeration that parted from the truth. That said, most of Stéphane said doesn't rely on how Kieren's piece scores on the truth-o-meter, but on how things are in the community and how staff deals with it… and I can only agree.

Unredacted report posted Kieren McCarthy  –  Jul 17, 2015 4:16 PM PDT

There's really no need to move this issue to one of personal attack: the unredacted report is now posted on the story that I wrote after we had done some due diligence on it.

And so everyone is able if they so wish to take the report ICANN published and compare it to the unredacted version and draw their own conclusions.

I'm pretty confident that if someone approaches this situation without prior prejudice they will draw the same conclusions I did.

Especially if they're active participants in the Kevin Murphy  –  Jul 17, 2015 4:34 PM PDT

Especially if they're active participants in the IRT process and salaried, senior members of the industry, right?

As nobody else has corrected me yet, Kevin Murphy  –  Jul 17, 2015 7:16 PM PDT

As nobody else has corrected me yet, I'll do it myself.

"IRT" was the wrong acronym. I intended to refer to the various processes around the IANA transition and related accountability studies.

I appreciate Kieren's investigative reporting. He does Constantine Roussos  –  Jul 18, 2015 5:05 PM PDT

I appreciate Kieren's investigative reporting. He does bring a lot of interesting topics to light that no-one else wants to uncover and in this case would pose questions. I personally believe ICANN had no reason to redact parts and ICANN staff's actions were consistent and compliant.

As I mentioned on DomainIncite, I think we need to analyze ICANN staff's in general pertaining to the AGB and what "preferential treatment" is. Most applicants received clarifying questions because ICANN wanted certain criteria to be met and be AGB/ICANN compliant. ICANN did its best to pass all applicants through Initial Evaluation. The Letter of Credit question was also an area where ICANN wanted specific language that was template-like to be accepted. So if a financial institution/bank agreed to the ICANN terms but has a difficulty writing the exact terms that ICANN wants in writing, does that mean the applicant should fail? ICANN rightly did not fail applicants because of this. It assisted to provide guidance on what the AGB was looking for. If the bank denied the terms then the applicant would not qualify. Same with support letters. If the banks (in the case of LOCs) and the African Union (in the case of support letters) had an expressed intention to meet the ICANN terms but had difficulties expressing them in writing to be compliant then you would assume that with $185,000 investment that ICANN would let applicants know what they are lacking. ICANN did not call the banks to arrange Letter of Credits nor did ICANN lobby the African Union to support ZACR's effort. These were all the applicant's responsibility. These have nothing to do with material changes to an application so ICANN staff can assist in such matters and provide guidance.

Like I said in previous posts, I am siding with ICANN staff on this one. That said, Kieren has done a great job uncovering such issues to the public eye. I do not understand why ICANN redacted parts. They did not need to. Kieren did what most good reporters would do: ask questions.

Constantine Roussos
.MUSIC

I am siding with ICANN staff on this one Martin Otsieno  –  Jul 20, 2015 9:45 AM PDT

Constantine,

You may well side with the ICANN "staffer" but for me I would go for three international Jurists and many hundreds of thousands of legal analysis.

First of all, in an RFP procedure certain things are a "must meet": and certain things "generic"

To actually draft a specific letter to a specific applicant is completely different from a generic example in the AGB. Are you saying it is OK for ICANN to do the financial models for the applicant because there was a generic example/template in the AGB as well? ZACR was given assistance and DCA was not given. 

There is absolutely no question that the parties were not treated equally.  That is why the decision in favor of DCA was unanimous and DCA won the IRP, it is as simple as that!

DCA was not given assistance because there Rubens Kuhl  –  Jul 20, 2015 10:33 AM PDT

DCA was not given assistance because there was a kill order from the GAC… absent that, there is no reason why staff wouldn't provide equal assistance to DCA. As consultant to one of non-contested Geo applicants, I can say that staff provided the exact same assistance that is on record for .africa. Considering .osaka, the only other contested Geo application, had both candidates approved in Geo panel, it's also likely that both applicants received the same level of assistance.

Level of assistance Martin Otsieno  –  Jul 21, 2015 2:35 AM PDT

Rubens, It is totally inappropriate in a conduct of a bid to offer assistance to any bidder except for what is provided in the bidding documents. There are plenty international bodies like UN, World Bank e.t.c. and others that follow strict bidding procedures and will never allow such things as clarifying questions to become assistance, it is very irregular.

Martin,Are you suggesting that everyone that was Constantine Roussos  –  Jul 20, 2015 10:40 AM PDT

Martin,

Are you suggesting that everyone that was provided guidance by ICANN if there was a Clarifying Question should be subject to disqualification because it is preferential treatment?

And how does editing an already-existing support letter give an applicant a competitive advantage? My understanding is that both initiatives got support letters at some point. ICANN did not help the applicant get the support and it was not a material change to their application because the support existed when the application was filed. This is what matters.

If you want to look at the AGB then the issue is one of whether it was a material change to their original submission. They didn't change the support did they? The African Union still supported the applicant.

I believe the IRP decision is the right one but not because of this particular ICANN staff action. To highlight this point I would like to remind that our initiative was also harmed financially and unfairly by GAC and ICANN resolutions. We represented the community objection filing against music-themed applicants with exclusive access provisions (e.g Amazon) and those without safeguards for the regulated music sector. Few weeks after the community objection filings the GAC Beijing Communique advice came out that ICANN agreed with us (despite it unfairly affecting objections). ICANN passed resolutions which did not allow exclusive access applications and mandating safeguards in those in regulated sectors such as music. Those were the precise objections which cost hundreds of thousands of dollars as this IRP cost proceedings show. The GAC advice and ICANN resolutions though (despite being consistent with the communuty objections) gave preferential treatment to Amazon and others who now argued that ICANN and GAC has incorporated safeguards and so the Objections should be dismissed. This is what happened which costs us a significant amount of resources and finances. We still have CPE pending but DCA was not the only stakeholder harmed from the constantly-changing new gtld program and AGB.

I could go on and on and talk about CPE and other affairs that lacked fairness and transparency for certain applicants. However providing assistance to a letter of support that existed before the filing of the .africa application does not create a competitive advantage or unfairness. If this was a new letter of support and the African Union just signed it and was not part of the original application then it was preferential treatment.

I agree with you that the IRP decision was the right one. The panel focused on GAC advice and the fact that ICANN signed the registry contract with ZACR while killing DCA's application. The issue is why was DCA's application not allowed to continue. To me it was not an issue concerning the editing of an already existing ZACR support letter since it was not a material change to the original application. The support already existed.

The devil is in the details.

Constantine Roussos

.MUSIC

A clarifying question and providing assistance are two different things Martin Otsieno  –  Jul 21, 2015 2:37 AM PDT

A clarifying question and providing assistance are two different things. If generic letters are provided in the AGB to all applicants then that is fine however actually writing the recommendation letter so that it meets requirements is crossing the line. The tone set in the AGB and many briefing sessions leading up to the submissions was very much a pass/fail message that was given. Where in the AGB did it say that any direct assistance would be given ?

ICANN staff were very reluctant to discuss anything on the application process post-submission saying that it’s a completely independent process handled separately from the normal ICANN day to day business.

That message was consistent with normal international bidding procedures. I’m not sure if at some point you may have been involved in a competitive international bid. If you have then you would know that discussing a bid with ICANN staff is a form of canvassing or ICANN assisting an applicant is preferential treatment – either case would automatically disqualify the relevant bid.

I wonder how many applicants were put off applying for the new gTLDs because they expected a certain conformity to generally accepted bidding procedures versus what seems to have transpired.

More info on the rationale for the redacted ICANN report... Stéphane Van Gelder  –  Jul 20, 2015 9:52 AM PDT

This seems of relevance, both to the .africa case and the more generic arguments I am making in this article that the community has the power to keep ICANN honest…
http://www.domainmondo.com/2015/07/icann-dot-africa-irp-who-redacted-what.html

And Kieren's follow-up in The Register... Stéphane Van Gelder  –  Jul 20, 2015 10:55 AM PDT

http://www.theregister.co.uk/2015/07/16/icann_africa_latest/

Worse than that Kieren McCarthy  –  Jul 24, 2015 11:45 AM PDT

I've dig in further into what was redacted and uncovered the fact that the staff directly influenced the process against DCA, repeatedly ignoring recommendations from its "independent" experts on the matter.

And as for the staff's explanation about the final report redactions? Nothing but weasel words: DCA explicitly rejected its redactions but ICANN posted the report with them anyway and then told DCA not to publish an unredacted version.

Full story: http://www.theregister.co.uk/2015/07/24/icann_dot_africa/

Factual mistake Rubens Kuhl  –  Jul 24, 2015 12:14 PM PDT

There is one misconception on the .africa update: that AUC was found to be endorsing ZACR as an IGO. If that was the case, then clearly UNECA and a few other African IGOs could be found as endorsing one or both applicants. What prompted ZACR approval was a notion that AUC could be saw as a proxy for the countries that signed instruments that started with the Abuja declaration, so ZACR has the support of those countries and qualifies.

BTW, UNECA support was possibly going to be verified as not anymore valid, since UNECA posted a comment against DCA during comment period, see https://gtldcomment.icann.org/comments-feedback/applicationcomment/commentdetails/6481 .
Although it's not an opposition to DCA application per se, as it was targeted to .dotafrica as a similarity comment, it seems like an endorsement of AUC as a custodian of .africa and its selection of registry operator.

But even if we consider UNECA support as valid, DCA would need to show UNECA as having proxy powers for a number of African countries… which I also don't see happening.

It seems DCA Kool-Aid is having an effect on the people they provide information to… I find great that DCA is providing the community information that sheds a bright light on actions ICANN staff tried to hide, but they just can't stop trying to make their way into the contention set while doing it.

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