[AfrICANN-discuss] Re: [Npoc-discuss] .AFRICA IRP Declaration – Clearing Up Some Facts

Sat Aug 1 22:53:58 UTC 2015

Hi
Please, fyi.
Sorry for any cross-posting
Cheers !
-Olévié-


2015-08-01 10:40 GMT+01:00 Rudi Vansnick (NPOC) <rudi.vansnick at npoc.org>:

>
> The message below is sent to you for your information. If you have any
> questions, please contact us.
>
> *31 July 2015*
>
> *John Jeffrey*
> *ICANN's General Counsel & Secretary*
>
> Recently some questions have been raised regarding our posting of a
> partially redacted final "Declaration" issued by the Panel in the DotConnectAfrica
> Trust (DCA) v. ICANN
> <https://www.icann.org/resources/pages/dca-v-icann-2013-12-11-en>
> independent review process (DCA .AFRICA IRP or IRP) proceedings.
>
> Some misinformation and erroneous reporting have framed parts of the
> discussion. In this blog, I would like to present facts and clarify a
> number of points, including the reasons for posting a revised version of
> the Declaration.
> Why Publish a Redacted Declaration?
>
> As background, ICANN has a commitment to the community to post any IRP
> declaration as soon as reasonably possible. ICANN initially published a
> redacted version of the IRP Panel's Declaration
> <https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf>
> in the DCA .AFRICA IRP on 9 July 2015, within 24 hours of receiving it.
>
> Today we are publishing a second version with fewer redactions. So, why
> are we publishing two versions with different levels of redaction?
>
> Specifically, under ICANN's bylaws
> <https://www.icann.org/resources/pages/governance/bylaws-en/#IV>, an IRP
> Panel may grant requests to keep certain information confidential, such as
> personally identifiable information, trade secrets, internal
> correspondence, and correspondence with third parties. In the case of DCA
> v. ICANN, the IRP Panel determined that:
>
>    - Documents exchanged as confidential by the parties could not be
>    publicly disclosed.
>    - Reference to information in these documents in parties' written
>    submissions must be redacted prior to public posting. This is a noted
>    common practice in similar commercial arbitrations and the practice has
>    been adopted in the IRP proceedings so that as much information as possible
>    can be placed in the record for the panel to make its decision.
>
> Upon receiving the Declaration from the IRP Panel, we were under an
> affirmative obligation found in our confidentiality agreement and IRP
> Panel Procedural Order #4
> <https://www.icann.org/en/system/files/files/procedural-order-4-25sep14-en.pdf>
> to redact all confidential information exchanged during the IRP proceedings.
>
> Immediately upon receipt of the Declaration, our legal counsel began to
> make obligatory redactions to protect material that the parties had
> mutually agreed was confidential. This was done in order to meet our
> obligation to post quickly (within the first business day following receipt
> of the Declaration).
>
> *In retrospect, we could have, and should have, noted on the posted
> document and on website that it contained redactions and explained the
> reasons for the redactions.*
>
> For the sake of increased clarity, we have now altered our process for
> posting IRP declarations. Going forward we will ensure that in addition to
> marking as "Redacted" each part of the document that is redacted, we will
> also make clear when posting a declaration whether there are redactions in
> it, and will state the reasons for the redactions, as we have done in
> today's posted version.
>
> In the case of the DotConnectAfrica Trust (DCA) v. ICANN
> <https://www.icann.org/resources/pages/dca-v-icann-2013-12-11-en>
> declaration, immediately after the initial posting of the declaration,
> ICANN's external legal counsel began reviewing each redaction to
> determine whether it could be released.
>
> If the information redacted came from ICANN, we tried to answer several
> questions -- Did it contain confidential information? Did it contain
> privileged information? Could the privilege be waived? And, did it contain
> third party or applicant information that we did not have the right to
> publish without permission?
>
> If the information under question had been requested to be confidential by
> a party or entity that was providing the information to ICANN, we tried
> to answer a different set of questions  -- Have we gained their permission
> to publish it?  If DCA's information -- has their counsel or DCA lifted
> their request that it be considered confidential? Will they do so if we ask
> them to lift confidentiality?
>
> If the information in question was from ICANN, we were able to review it
> very quickly. But for the information supplied by others, we were required
> to reach out to each of the parties.
>
> In the case of DCA, we initially reached out to DCA's lawyers, then when
> we learned that DCA was no longer represented by legal counsel and we had
> to reach out to DCA directly.
>
> We also sought the release of information that other impacted parties had
> requested be kept confidential by reaching out directly to each of those
> involved.
>
> The most recent version of the Declaration that we are publishing is a
> result of our efforts to remove those redactions. There are still some
> redactions and we have indicated the reasons why they still exist in the
> revised version.
> ICANN Staff Assistance on New gTLD Applications
>
> 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.
>
> If an applicant has applied for a gTLD string that is a geographic name,
> such as .AFRICA, the applicant must submit documentation of support for, or
> nonobjection to, its application from the relevant governments or public
> authorities. The existence of support or nonobjection is the primary
> objective, and the manner in which it is documented is secondary.
>
> ICANN staff has helped many applicants and their supporters understand
> how to properly document support. Not only did we make a template support
> letter publicly available to all as part of the New gTLD Program
> Applicant Guidebook (see Appendix to Module 2
> <http://newgtlds.icann.org/en/applicants/agb/guidebook-full-04jun12-en.pdf>),
> we have answered questions, received through our customer service channel,
> as to how interested parties can document support for a given gTLD
> application. In the case of ZA Central Registry, ICANN appropriately
> assisted the applicant in documenting support from the AUC.
>
> Our actions surrounding the .AFRICA applications were not unique, since we
> assist any applicant who requests assistance, or who needs clarification in
> learning how best to document support or other matters. We have provided
> assistance to all applicants regarding their applications to the maximum
> extent possible.
> Impact on .AFRICA Delegation
>
> Questions have also been raised regarding statements made by DCA about the
> impact of this decision on the other .AFRICA application.  In a statement
> in recent days, DCA was quoted as saying that:
>
> Going forward, we now expect ICANN to accept the binding IRP outcome,
> refrain from any further plans to delegate .Africa to the *ZA Central
> Registry who should now be removed immediately from the new gTLD program*;
> and cooperate fully with DCA Trust to ensure that the IRP Panel ruling is
> implemented so that .Africa can be delegated to DotConnectAfrica Trust
> under a cooperative framework that will satisfy the stipulations of DCA's
> charitable objectives." [bold emphasis added]
>
> The ICANN Board adopted the panel's recommendation
> <https://www.icann.org/resources/board-material/resolutions-2015-07-16-en>
> at its Board meeting on 16 July 2015.
>
> This decision does not remove the ZA Central Registry from the New gTLD
> Program, nor is there any part of the Declaration that calls for that
> result. The impact on ZA Central Registry is that ICANN "will refrain
> from delegating .AFRICA" pending the outcome of the evaluation process on
> DCA's application.
>
> As called for in the Board resolution, ICANN has "resume[d] the
> evaluation of DCA's application for .AFRICA. The evaluations will be
> performed in accordance with processes laid out in the Applicant Guidebook.
>
> To summarize, ICANN's actions in redacting parts of the IRP Declaration
> at the outset were motivated by our obligation to the community to post the
> document quickly and the competing, yet mandatory obligation, to respect
> confidential information while being as transparent as possible.
> Article is available at :
>
> https://www.icann.org/news/blog/africa-irp-declaration-clearing-up-some-facts
>
>
> Rudi Vansnick
> Chair Non-for-Profit Operational Concerns Constituency (NPOC)
> www.npoc.org
>
> rudi.vansnick at npoc.org
> Tel : +32 (0)9 329 39 16
> Mobile : +32 (0)475 28 16 32
>
>
>
>
> _______________________________________________
> Npoc-discuss mailing list
> Npoc-discuss at icann.org
> https://mm.icann.org/mailman/listinfo/npoc-discuss
>


-- 
Olévié Ayaovi Agbenyo KOUAMI
Président/CEO de INTIC4DEV (http:www.intic4dev.org)
Directeur-Adjoint de O and K IT sarl (Editeur de logiciels de gestion SIGE
(Syscoa/Ohada)
SG de ESTETIC  - Association Togolaise des professionnels des TIC (
http://www.estetic.tg)
ICANN-NPOC Communications Committee Chair (http://www.icann.org/ et
http://www.npoc.org/)
Membre du FOSSFA (www.fossfa.net) et Membre de de Internet Society (
www.isoc.org)
Skype : olevie1 FB : @olivier.kouami.3 Twitter : #oleviek Lomé – Togo
ICANN - Fellow & Alumni
Secrétaire Général du RIK-Togo ( Réseau Interprofessionnel du Karité au
Togo)
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