We have formally responded to ICANN today regarding an options paper produced by the organization's General Counsel following our successful appeal against the Board's rejection of dot-xxx in 2007.

Our response is pretty comprehensive, so we have created a quick graphic to allow for fast comprehension (see above).

If you click on the graphic above you will be taken to a larger version below, split in two, where you can read it more easily. On those graphics you can also click on the "violations" buttons to see where ICANN's options break the IRP Declaration, ICANN's bylaws and/or international law. Alternatively, we have a browser-filling graphic of the options chart.

The full response to ICANN is available here [pdf] and will be posted shortly on ICANN's public comments page. A cover letter was also sent [pdf].

Overall conclusion:

Our overall conclusion is that ICANN has only one one course of action available to it: enter into a registry agreement with ICM, with no further delay.

To do otherwise would amount to nothing less than a statement that the Board does not feel bound by its Bylaws, Articles of Incorporation, or international law, and can violate these imperatives without consequence.

We are, of course, willing to negotiate with ICANN over the specific terms of that agreement, so long as the final terms are consistent with the terms in the agreements negotiated with other registry operators from the 2004 round.

In the paper we demonstrate that almost every avenue outlined in the options paper would result in violations of ICANN's own procedures, bylaws and/or Californian or international law. We feel able to assert this claims confidently because they were considered in depth by the three-member arbitration panel that made up ICANN's own Independent Review Panel.

Our key conclusions below.

Key conclusions:

• The report overlooks the fundamental finding of the IRP Declaration: that the ICANN Board determined, in June 2005, that ICM's application met the RFP criteria, and the Board's subsequent reconsideration of that was a violation of ICANN's Bylaws, Articles of Incorporation, and international law.
• "Option one" — where the Board accept the IRP Declaration in full — lists a number of unnecessary and inappropriate processes that are neither mentioned in the IRP Declaration, nor which derive even remotely from the Panel's findings. Those additional processes violate the IRP Declaration, as well as ICANN's bylaws and Articles of Incorporation.
• "Option three" — where the Board reject the majority findings of the Panel — has no jurisprudential, procedural or policy-based rationale. And ICANN Staff cite no precedent or other rationale that would justify the Board's adoption of this proposed option.
• For the Board to disregard any part or all aspects of a declaration would render futile attempts to preserve the legitimacy and neutrality of independent review panels, and would be at odds with the very objectives that led to the establishment of the Independent Review Process.
• ICM's application should be subjected to no form of re-evaluation. It was evaluated, re-evaluated and finally accepted by the Board in June 2005. There are also no objective reasons whatsoever justifying appliance of yet-to-be-finalized criteria for the new gTLD program in evaluating ICM's application.

We go into far greater depth in our response [pdf] regarding the other suggestions on the options report, including the issue of GAC statements, the suggested of a new evaluation panel, and the flawed assumptions and lack of objectively upon which the Staff's guidance is built.

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How the ICANN Board addresses the IRP's Declaration is being and will be scrutinized for years to come by policymakers, politicians, future TLD applicants and all other Internet stakeholders alike. The Board's treatment of the IRP Declaration, its process choices and its ultimate decision will indeed be about a specific TLD application.

But far more importantly, what the Board does will also say much about ICANN's views regarding what accountability really means in practice within ICANN's model of self-governance, and the degree to which ICANN is able to address difficult issues in a balanced and rational fashion, guided by principles of good faith and with strict adherence to the organization's Articles of Incorporation and Bylaws.

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You can view our options graphic in a larger view below.

Click on the "violations" buttons to see which aspect of the IRP Declaration, ICANN bylaws, ICANN articles or incorporation, Californian law or international law, each step violates.

Left-hand side of the ICANN options chart

Right-hand side of the ICANN options chart

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Violations

As you can see from the graphics above, if ICANN choses many of the options it has put in the dot-xxx options paper, it is violating its own procedures, bylaws and international law. Below are those groups of violations referenced above by number.

Group 1

• IRP, para. 149: According to the policy established by the Board Resolution in Carthage, "the sTLD process was 'successfully completed' . . . in the case of ICM Registry with the adoption of the June 2, 2005 resolution. ICANN should . . . then have proceeded to conclude an agreement with ICM on commercial and technical terms, without reopening whether ICM's application met the sponsorship criteria;"
• IRP, para. 152: "reconsideration of [the finding that ICM's application met the criteria] was not consistent with the application of neutral, objective and fair documented policy;"
• The purpose of the IRP, as established by Article IV, Section 1 of the Bylaws;
• Core Value of "applying documented policies neutrally and objectively" in Article I, Section 2(8) of the Bylaws;
• Core Value of "[r]emaining accountable to the Internet community" in Article I, Section 2(10) of the Bylaws;
• Non-discriminatory treatment required by Article II, Section 3 of the Bylaws;
• Transparency, openness, and fairness required in Article III, Section 1 of the Bylaws, Article 4 of the Articles of Incorporation, and international law. Each additional delaying action following this option continues and compounds these initial violations. Violations in later boxes are additional ways in which the specific proposals violate the Bylaws, Articles of Incorporation, or Declaration.

Group 2

• The Declaration of the IRP;
• The purpose of the IRP, as established by Article IV, Section 1 of the Bylaws;
• Core Value of "applying documented policies neutrally and fairly" in Article I, Section 2(8) of the Bylaws;
• Core Value of "[r]emaining accountable to the Internet community" in Article I, Section 2(10) of the Bylaws;
• Non-discriminatory treatment required by Article II, Section 3 of the Bylaws;
• Transparency, openness, and fairness required in Article III, Section 1 of the Bylaws, Article 4 of the Articles of Incorporation, and international law.

Group 3

• IRP, para. 149: According to the policy established by the Board Resolution in Carthage, "the sTLD process was 'successfully completed' . . . in the case of ICM Registry with the adoption of the June 2, 2005 resolution. ICANN should . . . then have proceeded to conclude an agreement with ICM on commercial and technical terms, without reopening whether ICM's application met the sponsorship criteria;"
• IRP, para. 150: "If, by way of analogy, there was a construction contract at issue, the party contracting with the builder could not be heard to argue that specifications and criteria defined in invitations to tender can be freely modified once past the qualification stage."
• IRP, para. 152: "reconsideration of [the finding that ICM's application met the criteria] was not consistent with the application of neutral, objective and fair documented policy;"
• Core Value of "applying documented policies neutrally and objectively" in Article I, Section 2(8) of the Bylaws;
• Core Value of "employing open and transparent policy development mechanisms" in Article I, Section 2(7) of the Bylaws;
• Non-discriminatory treatment required by Article II, Section 3 of the Bylaws;
• Transparency, openness, and fairness required in Article III, Section 1 of the Bylaws, Article 4 of the Articles of Incorporation, and international law.

Once again, each additional delaying action following this option continues and compounds these initial violations. Violations in later boxes are additional ways in which the specific proposals violate the Bylaws, Articles of Incorporation, or Declaration.

Group 4

• IRP, para. 149: According to the policy established by the Board Resolution in Carthage, "the sTLD process was 'successfully completed' . . . in the case of ICM Registry with the adoption of the June 2, 2005 resolution. ICANN should . . . then have proceeded to conclude an agreement with ICM on commercial and technical terms, without reopening whether ICM's application met the sponsorship criteria;"
• IRP, para. 150: "If, by way of analogy, there was a construction contract at issue, the party contracting with the builder could not be heard to argue that specifications and criteria defined in invitations to tender can be freely modified once past the qualification stage."
• IRP, para. 152: "reconsideration of [the finding that ICM's application met the criteria] was not consistent with the application of neutral, objective and fair documented policy;"
• Core Value of "applying documented policies neutrally and objectively" in Article I, Section 2(8) of the Bylaws;
• Non-discriminatory treatment required by Article II, Section 3 of the Bylaws;
• Transparency, openness, and fairness required in Article III, Section 1 of the Bylaws, Article 4 of the Articles of Incorporation, and international law;
• Core Value of "employing open and transparent policy development mechanisms" in Article I, Section 2(7) of the Bylaws;
• Requirement in Article XI, Section 2(1)(h) that GAC advice be timely;
• Article 3 of the Articles of Incorporation requirement to lessen the burdens of government.

Group 5

• Core Value of "applying documented policies neutrally and objectively" in Article I, Sections 2(8) of the Bylaws;
• Non-discriminatory treatment required by Article II, Section 3 of the Bylaws;
• Requirement in Article XI, Section 2(1)(h) that GAC advice be timely.

Group 6
Additional violations if ICM is asked to make commitments, different from those required of the other 2004 sTLD applicants.

Related topics: DNS, Domain Names, Registry Services, ICANN, Internet Governance, Policy & Regulation, Regional Registries, Top-Level Domains, Web