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DotConnectAfrica Trust Response to John Jeffrey's ICANN Legal Blog Posting

Sophia Bekele

Posted here on behalf of DotConnectAfrica Trust in response to ICANN's General Counsel & Secretary, John Jeffrey's recent article.

The attention of DotConnectAfrica Trust (DCA Trust) has been drawn to a recent blog posting by John Jeffrey, the ICANN General Counsel and Company Secretary, who wrote to clarify what he termed as "misinformation and erroneous reporting that have framed parts of the discussion" regarding the recent DCA vs. ICANN IRP Final Declaration.

As we can't see a way of making comments on his blog, DCA Trust as a directly affected party, will respond to the issues Mr. Jeffrey has advanced on behalf of ICANN, in order of how he has addressed them. A copy of our response has been communicated to ICANN.

1. Issue of Redaction of Parts of Final IRP Declaration

DCA notes that ICANN has now changed its procedures on how it will post future IRP decisions. Mr. Jeffrey gives a long list of tests on how to decide what will be published, which are fairly obvious and adds length to his argument taking us away from the central point that the initial publication of the IRP decision was misleading. ICANN tacitly acknowledges this by deciding to change the procedures.

A point on his reference to legal representation is that DCA engaged ICANN directly prior to the IRP (e.g. CEP) and we have simply reverted to that mode post IRP. There was no material delay in responding to ICANN as Mr. Jeffery alluded to, and in fact as we transitioned between modes our IRP legal team did provide various and immediate responses to ICANN on the redaction, and clearly stating DCA's position. That is, any redactions by ICANN would have been done without DCA Trust's consent — in other words, DCA Trust reserved the right not to accept the redactions that had been done unilaterally by ICANN. We can understand ICANN's interpretation however as one that DCA Trust did not have legal representation and ICANN's apparent legal intimidation of DCA Trust since the IRP process was concluded — e.g. this blog by ICANN's senior legal counsel.

Nonetheless, DCA Trust remains convinced that the entire IRP outcome should remain transparent, since no third-parties would be harmed by doing so. ICANN did not allow a negotiated process to govern the redaction of the IRP Final Declaration between DCA and ICANN, but decided on its own to perform deep redactions that amounted to expurgation. Excessive redaction of the document as was done by ICANN, which made the IRP Declaration rather opaque and not transparent.

It should also be noted that the haste in publishing the IRP results is in stark contrast with the speed with which ICANN posts all other communications from DCA — specifically our responses to the ICANN board. Somehow our competitors and the African Union were able to get their correspondence posted, but DCA's communication took weeks, and with DCA's urging at that.

2. ICANN Staff Assistance to ZACR on .Africa New gTLD Application

John Jeffrey states:

"Some have viewed the redactions as support for an allegation DCA made during the IRP proceedings that ICANN staff had not treated DCA fairly. Specifically, it has been suggested that staff improperly assisted the African Union Commission (AUC) by helping to ensure that its letter of support for another applicant satisfied the necessary criteria. The DCA IRP Declaration does not address this allegation, but since the allegation is being discussed, it warrants some clarification."

It is not correct to dismiss DCA's allegation by confusing what is an allegation and what was effectively concluded by the IRP proceedings. There is little doubt that DCA was treated unfairly otherwise it would not have prevailed at the IRP. DCA repeatedly explained to ICANN where the board had failed but was forced to go to an IRP — that alone was unfair.

Notwithstanding, coming back to the issue of ICANN's evident assistance to ZACR, it is now public knowledge that all the letters submitted by ZACR to the new gTLD application did not meet the established criteria as defined by the guidebook. ZACR had simply appropriated the letters for itself; including the many letters that had been written by African country governments in support of the AUC's position on .Africa — which is for the .Africa new gTLD name to be reserved as a special legislative protection for the African Union. If ZACR's putative letters had indeed met the criteria, then there would have been no need for ICANN evaluation staff to send clarifying questions to ZACR stating that the letter they submitted did not meet the Applicant Guidebook (AGB) criteria; and the issue of ICANN staff helping to 'ghost-write' a more suitable 'passing' letter of endorsement for the AUC for the assistance of ZACR's application would not have arisen; and this assertion is supported by the records.

The specific allegation made by someone is one which John Jeffrey alludes to in his second sentence — "staff improperly assisted one applicant". Because it was not specifically denied, the blog posting clearly infers that staff did offer assistance but suggests that this was not improper.

DCA simply refers to the guide book. The Geographic Name Panel (GNP) procedures are clear — the responsibility is on the applicant to fix any endorsement issues. Obviously a form letter template provided as part of the guidebook is quite acceptable because all applicants can refer to it. Despite suggesting that ICANN helped every applicant, it is still wrong because it is contrary to the guidebook.

The applicant guidebook, which is the one to be followed, clearly states responsibility lies with the applicant. ICANN has no part in the process other than acting as a mailbox between the GNP and the parties that may issue an endorsement; otherwise the "independent" process is compromised.

Jeffrey states:

"We have provided assistance to all applicants regarding their applications to the maximum extent possible."

That is, all other applicants apart from DCA Trust which ICANN discriminated against according to the records of the IRP findings. Additionally, "to the maximum extent possible" clearly implies that there is some practical limit to the assistance that ICANN can give and hence cannot guarantee it would be the same to all applicants, which is again discriminatory. Furthermore, this 'assistance' which ICANN claims to have given to applicants was most irregular and clearly against the new gTLD applicant Guidebook provisions. This offer of assistance post-TLD Application System (TAS) official closing is not spelt out in any procedure we can find in the AGB and it would seem strange that it would be given if we benchmark AGB against commonly accepted International tendering processes.

We are very surprised that ICANN continues to downplay these serious irregularities that led it to unfairly award the .Africa new gTLD to ZACR simply because ICANN does not want to admit any wrong-doing on its part.

3. Impact on .AFRICA Delegation

With the risk of again accusing ICANN of treating DCA unfairly, the current status of delegation is legally problematic. How could ICANN evaluate DCA's application at the GNP while ICANN has already signed a new gTLD Registry agreement for the same domain name string that DCA's application would be evaluated for? i.e. the Africa new gTLD name string that is 'technically unavailable' for ICANN to delegate as of this writing. What would be the purpose of such a 'resumed evaluation processes for DCA Trust's application' which the ICANN Board resolved to do? Surely this anomaly has to be corrected immediately.

No bidder for any Invitation for Bids (IFB) process would agree to participate in an open/competitive bid (or tender) opportunity which the goods or services that are being tendered have already been awarded and contracted out to a particular supplier. Even as a lawyer, something should tell Mr. Jeffrey that this situation is not right and needs to be corrected immediately.

Therefore, the initial step for ICANN to take would be to revoke the current new gTLD Registry Services Agreement that ICANN has already signed with ZACR, so that the string can then be free for evaluation and possible delegation to DCA Trust — based on the outcome of any fair and non-discriminatory re-evaluation process.

Conclusion

Rather than clarify matters Mr. Jeffrey has created more doubt about how ICANN actually conducted the new gTLD application process in general and with respect to .Africa in particular. The rules to be followed were clearly stated in the guidebook. The fact that it is named a "guidebook" doesn't alter the fact that it contained prescriptive and definitive rules to be followed. The procedures do not indicate that ICANN was provided any assistance to an applicant in any manner whatsoever. The responsibility is the applicants.

DCA Trust won the IRP against ICANN, and this was not by luck. It was a procedure-based process that was painstakingly determined by a Panel of International Jurists. Even before the Panel declared unanimously that ICANN broke its Bylaws and Articles of Incorporation, DCA Trust had clearly articulated a similar position of the IRP panel and informed Mr. John Jeffrey nearly two (2) years ago.

Therefore, we think that ICANN continues to violate and trample upon DCA Trust's rights as a participant under the new gTLD Program.

The IRP was forced upon DCA Trust by ICANN. DCA Trust expects ICANN to also solve the problem that it has created. Thus, ICANN should demonstrate statesman-like responsibility and accountability by immediately revoking its new gTLD Registry Agreement that it has signed with ZACR.

Finally, DCA Trust would like to reiterate what it stated in its official post IRP communication to ICANN: that a framework should be set up to mutually bridge the positions of the parties following the recent IRP Final Decision. We had specifically noted that: "A Joint Cooperative Framework should be immediately established between DCA Trust and ICANN to enable us reach common ground on .Africa going forward, and resolve differences if any."

DCA Trust remains open to any equitable and fair process that would protect its rights.

By Sophia Bekele, CEO of DotConnectAfrica. Ms. Bekele is a former ICANN generic Names Supporting Organization (gNSO) Council policy advisor & contributed to policy over the new gTLD programme & IDNs. She was also policy advisor to various UN Agencies on ICTs. Founder and spearhead of the Yes2DotAfrica campaign. Bekele is a business and corporate executive, an international entrepreneur, a thought leader in Corporate and ICT Governance, international policy, Business Strategy, Internet, ICT & development. Her Profiles on sophiabekele.com / wikipedia.

Related topics: ICANN, Top-Level Domains

 
   
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Comments

Tortured logic Katie Schroder  –  Aug 16, 2015 11:44 PM PDT

This article doesn't really make that much sense. If the gTLD application process was as rigid as DCA claims it is then surely ICANN should never have allowed their application to change from ".dotafrica" to ".africa"? ICANN assisted DCA in changing their application, so how is it that this is proper but somehow assisting DCA's competitor was not? Incidentally every registry I've spoken to said they needed some kind of assistance from or interaction with ICANN during the application process because laws and politics vary around the globe while the guidebook was written by someone familiar with Californian law and financial procedures.

Why is a sample letter in the guide book proper but a "ghost-written" letter not? I believe that the ZACR denied this happened , but assuming for the sake of argument that the allegations are true. So what? This wasn't a creative writing contest. The AUC and their member countries have signed the documents making them official. How is that not acceptable?

The GNP (Geographic Names Panel) is a completely separate panel from the ICANN board, and they have a simple job to do. Why do you believe they will not be able to evaluate whether or not DCA have the required support?

The IRP panel specifically refused to look at most of DCA's claims. The only material objection the panel had was that the ICANN board should have obtained more detail from the GAC before rejecting the application. Since the guide book is very specific about allowing the GAC the rights to reject an application I fail to see anything in the IRP findings or the application guide book that says that ICANN shouldn't ask the GAC to clarify their original advice to rectify the faults found during the IRP.

I'm not going to insult Sophia by assuming that someone with her claimed level of education misread the IRP findings or failed to understand both the application guide book and the newgltds.icann.org website. So why are her conclusions always so ... wrong?

Merits, Merits please! Martin Otsieno  –  Aug 17, 2015 11:21 PM PDT

Katie Schroder, I would welcome you to first go through out all the merits of the case and understand the rules of the gTLD process, the discovery process did show that ICANN went overboard, while it was supposed to act as a neutral mail box, ICANN assisted in ensuring the letters provided by Africa Union were ‘pass-friendly’ and did not send the same clarification questions to DCA Trust.

ICANN not only acted as an active co-applicant instead of a referee and yes it wasn't a creative writing contest but a competitive international bidding process that was creatively messed up by ICANN, hence all these expensive IRP processes, when people like you refuse to read the documentation provided to support your argument, it doesn’t help much.

I also fail to see anything in the IRP findings or the application guide book that says that ICANN should use the same questionable process to review the .africa application as recommended by the IRP panel, to ask the GAC to clarify their original advice to rectify the faults found during the IRP is equal to subjecting the application to the faulty evaluation system and expect a positive result.

Please go through the .Africa IRP declarations from the first to the final ruling, read them using a clearer lens.  I also recommend the same on the prescriptive ICANN guidebook.

Only the guilty are afraid! Evans Taylor  –  Aug 20, 2015 12:44 AM PDT

My comments to Katie Schroder’s (or whoever is hiding behind this moniker) comments is that it is prudent to state factually nothing will ever remove from the overall substantiality of the final IRP ruling, namely: that ICANN broke its own Bylaws and Articles of Incorporation.  Yet ICANN has not been responsible nor accountable, and these important infractions go beyond whether or not the new gTLD Guidebook was adhered to or not, even though a serious Guidebook violation was also part of the larger failure; which all put together, caused ICANN to lose the IRP against DCA Trust.

The .africa IRP outcome debunked that ICANN couldn’t really live up to the existential standards that it had set for itself (as always I think, ICANN’s culture).  That ICANN is guilty of wrongful actions against DCA Trust and no amount of arguments by polemicists who strenuously oppose DCA’s position will change this stark reality. It is also immaterial whether ICANN in practice helped applicants or not. What remains quite evident is that ICANN discriminated against DCA Trust. 

“.dotafrica” vis-á-vis “ghost writing”: 
Katie Schroder is probably unfamiliar with the nature of open and competitive bids.

I believe that the amendment of the ‘.dotafrica’ name string followed an entirely transparent process.  A Change Request was formally submitted by DCA Trust through the TLD Applications System (TAS), it was thus duly processed and approved based on its merits by ICANN new gTLD staff.  Somebody could not have campaigned for the ‘.Africa’ string for six years of the widely acclaimed ‘Yes2DotAfrica Campaign’ (up till 2012), and then apply for ‘dotdotafrica’, simply because of a dot that was included in the name of the string; plus an extra dot that was again indicated by ICANN new gTLD staff during the application reveal.

Furthermore, a sample letter already provided as a template in the Applicant’s Guidebook therefore ICANN Staff only had to refer the AUC and ZACR to use the template that had been provided, and this would have obviated the need to help ‘ghost-write’ a suppositious endorsement letter that would be more acceptable to ICANN staff – all with a view to help ZACR pass a GNP evaluation, after the letters that ZACR had previously submitted along with its original application fell far short of established criteria.  Therefore, a ‘ghost-written’ letter profoundly violates the very principles of the bid process- since the organizer of the bid did not practice the same for every bidder, even as it has been shown that another competitive bidder was being discriminated against at the same time.  Comparatively speaking, and in direct contrast, this is what makes a ‘ghost-written letter’ not proper; not by any stretch of the imagination.

“Creative Writing” vis-á-vis “Creative Ambiguity”: 
A comment such as “this was not a creative writing contest” is infantile, argumentative, and unwise, since a similar comment about ‘creative ambiguity’ that was admitted to by Ms. Heather Dryden (former ICANN GAC Chairperson), during the IRP hearing (as evidenced in the Final IRP Declaration) is what caused the IRP Panel to doubt the validity of the GAC Objection Advice that was issued against DCA Trust’s .Africa application. Therefore, what is rather obvious is that on one hand, the ICANN GAC was practicing “creative ambiguity”, whilst on the other hand, ICANN staff were also assisting with “creative writing” of an endorsement letter for AUC/ZACR. All such actions were very improper.

Lastly, it must also not be forgotten that the issue of creative writing of an endorsement letter arose because ZACR failed to fulfill a straight forward requirement that it already claimed publicly for months to have fulfilled. This was also duplicitous.

Welcome Rubens Kuhl  –  Aug 21, 2015 2:09 AM PDT

Katie, welcome to the pleasure of contesting DCA flawed logic and misinformation, where every attempt to do so is battered by more flawed logic and misinformation from DCA ground troops. Keep writing and you might be promoted to cover-up supporter or racial conspirator.

Tortured new gTLD program I Lampeka  –  Aug 17, 2015 6:41 PM PDT

This article doesn't really make that much sense.. If the gTLD application process was as rigid as DCA claims it is then surely ICANN should never have allowed their application to change from ".dotafrica" to ".africa"? ICANN assisted DCA in changing their application, so how is it that this is proper but somehow assisting DCA's competitor was not? Incidentally every registry I've spoken to said they needed some kind of assistance from or interaction with ICANN during the application process because laws and politics vary around the globe while the guidebook was written by someone familiar with Californian law and financial procedure

Maybe you have not had had the opportunity of international procurement guidelines to appreciate “rigidity”.  The $185,000 application fee, the specific deadlines, continuity of business guarantees, communication only via customer service portal and the guide book all pointed to a strict process.

The .dotafrica is simply not an assistant to DCA, it is a correction of typographical nature.  This was a TAS issue and has been a subject of debate with many.  Presumably, ICANN saw this shortcoming in its system after the fact and made corrections for many IDN clients before publishing, but left DCA again discriminatorily, hoping perhaps it did not conflict with AUC/ZACR application and a way to get rid of the political quagmire around it. It was an input syntax error problem and this blog covers it very well in my opinion http://domainnewsafrica.com/the-curious-case-of-dotafrica-2/

"interaction with ICANN that other applicants may have had...."


You mention that, but you don’t say specifically as to when that happened (ie before or after submission).  The guidebook went through several drafts all with community (ie worldwide) input so the US centricity was not apparent

“Why is a sample letter in the guide book proper but a "ghost-written" letter not?”


The answer to your question is that one is a guide to all, whereas a letter written on behalf of a particular applicant favors one over the other. If what you state is true then ICANN involved itself in a process that the AGB specifically states, is for the applicant to resolve.

The GNP (Geographic Names Panel) is a completely separate panel from the ICANN board, and they have a simple job to do. Why do you believe they will not be able to evaluate whether or not DCA have the required support?

I doubt that DCA is saying the GNP is incapable of assessing, in fact based on the records they were, until ICANN staff interfered with their process and told them what to do and not do, which means that their independence is compromised.  Rather on the GNP issue, what DCA is saying is why is this been done if .Africa has been awarded already via a contract to its competitor, and so what is ICANN trying to accomplish in this regard.  It is a logical question.

The IRP panel specifically refused to look at most of DCA's claims. The only material objection the panel had was that the ICANN board should have obtained more detail from the GAC before rejecting the application.

The IRP panel did not refuse to look at most of DCA claims, they did in fact. That is why they approved a list of discovery documents that not only were specific to GAC issue as you want to limit it, but all other claim by DCA and spent hours and days at the witness hearing with questions pertaining to all DCA claims. Maybe you should look at the hearing transcripts to understand the scope of all the assessments done by the panel.  Definitely there are a lot of arguments presented by DCA but in making these arguments the legal team of DCA obviously presented evidence and material to support these claims.  The panel, rather were able to summarily reach a decision on the central question – breach of the bylaws – as they already stated in the final declaration “without going through the details”.

The IRP Declaration says – “113. 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.”. Operative words are “at minimum” and “investigate”. I think that’s a bit more than “obtain more detail”.  Perhaps ICANN should continue to do so.

Since the guide book is very specific about allowing the GAC the rights to reject an application I fail to see anything in the IRP findings or the application guide book that says that ICANN shouldn't ask the GAC to clarify their original advice to rectify the faults found during the IRP

but that’s not to say that they can or that it would be correct to do so.

I'm not going to insult Sophia by assuming that someone with her claimed level of education misread the IRP findings or failed to understand both the application guide book and the newgltds.icann.org website. So why are her conclusions always so ... wrong?

How could that simply be correct. Sophia has concluded many things the was proven right. The IRP records are all there for anyone to see, now that it is unredacted and I believe Sophia was also a witness as well as an attendee at the hearing.  Perhaps the IRP outcome can be misread by those who deliberately failed to show up at the hearing so they could massage the outcome the way they want to, just like the redaction issue that is mentioned in the article.

As far as failing to understand the guidebook and new gTLD program
1. Sophia got the IRP right with unanimous decisions on “each of the declarations” along the way and won a favorable decision over ICANN’s wrongful actions towards DCA
2. Sophia got the Independent Objector (IO) not to object to DCA .africa application, after he listened to her response on the objection that her competitors wanted to wrongfully launch based on community grounds.
3. Sophia was also correct in stopping the “Africa Agenda” in Dakar which was orchestrated to “reserve” the .africa name for the AUC, so as to allocated it to whomever they wanted, based on the ground that it violated the new gTLD rule book policy guidelines, therefore ICANN refrained from giving it to them, but for lack thereof was trying to give to them via backdoor illegitimate GAC advice.

The above are all major victories registered by Sophia on the proper analysis of the "guidebook".  Therefore, had the board simply listened to her advice the cost of the IRP could have been avoided. Instead of criticizing her by some parts of the community she should be thanked for making the effort to hold ICANN to account.

Misreading the IRP findings Neb Yosef  –  Aug 27, 2015 2:48 AM PDT

I don’t think that either Sophia or DCA Trust have misread the IRP findings
From the comments I read on this forum, Katie Schroder has at least agreed that there were ‘faults’ and all such faults remain on ICANN’s doorstep and not DCA Trust’s.  This is no longer an issue of the new gTLD Guidebook but about accountability and responsibility. It is about redress for wrongdoing and the need to correct wrongful actions in an acceptable way.  Since such arguments have already been won before a duly constituted juridical Panel, it is no longer the subject of cyclical public arguments that could be debated endlessly simply for its rhetorical value and nothing more.

That ‘Sophia’s conclusions are always so wrong’ is oxymoronic even leaving aside the direct provocation that was intended
Looking at this case and the past, I think Bekele has an established a track record of successfully defending her positions including her organization controversial or not.  Having to repeat what is already in available records, even having to repeat what Lampeka below stated, as far as the .africa project is concerned, it was proven at Dakar, Senegal in October 2011 when the same Sophia single-handedly opposed the extraordinary request that had been made to include .Africa and its other equivalents in the List of Top-Level Reserved Names.  She also defended her organization against the threat of Community Objection that was brought against DCA application by the Independent Objector of the ICANN new gTLD Program.  DCA Trust was also successful in winning the IRP Panel against ICANN, including proving Sophia' long established claim that ZACR did not have any valid endorsement they were claiming for months and years in public domain and misleading the public. Here at DCA and our community we have hats off to Sophia on all her work.

A New disagreements with ICANN
What I believe DCA is saying and fundamentally insisting after this IRP win is that ZACR should be immediately removed from the ICANN new gTLD Program, as the direct beneficiary of ICANN’s violations.  ICANN on the other hand thinks that ZACR’s status should not be affected by the IRP outcome. This explains why there is a new disagreement between ICANN and DCA Trust at this stage.

Reading the IRP findings differently does not change the True Narrative
Many who have been opposing DCA have been much jolted and irritated by the costly defeat that ICANN suffered at the IRP Panel and have been trying to ‘read’ the IRP findings differently; simply to suit their own prejudices – as if ‘refining GAC Advice or clarifying GAC Advice’ (that was ill-advised in the first place) would be enough to redress all the discriminatory actions, victimization and apparent injustice that DCA Trust has suffered at the hands of ICANN.

Therefore, no amount of veiled derogatory statements directed at the person of Ms. Sophia Bekele will ever change the facts of the case.  The truthful narrative as established by the IRP Panel is that DCA Trust remains the wholesale victim of ICANN’s willful violation of its own Bylaws and Articles of Incorporation and not these obfuscations by disgruntled elements that are known to be either allied to ZACR or directly opposed to DCA Trust.

New pseudonym Rubens Kuhl  –  Aug 27, 2015 3:39 AM PDT

Too bad DCA is only giving us pseudonyms to write the exact same thing with a new name; we would welcome heteronyms, like the ones pioneered by author Fernando Pessoa, where each one had their own writing style. That would enrich drama instead of infinite repetition.

Infinite repetition Martin Otsieno  –  Aug 28, 2015 1:59 AM PDT

Seems that DCA is focused on the issues. If you are looking for drama, perhaps the pages of Hollywood gossip columns are best for you. As far as anyone can see, it is your name that is in infinite repetition on anti-DCA matters!

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