[AfrICANN-discuss] Fwd: ICANN Accountability Deficits Revealed in Panel Ruling on .AFRICA

[Olévié Kouami]

Dear all,

I've found these analysis on the topic very interesting and I'm sharing it
with you.

Have a nice day.!

Cheers !
-Olévié-

---------- Forwarded message ----------
From: Robin Gross <robin at ipjustice.org>
Date: 2015-07-22 8:43 GMT+01:00
Subject: ICANN Accountability Deficits Revealed in Panel Ruling on .AFRICA
To: NCSG-DISCUSS at listserv.syr.edu


Hi all,

I recently wrote this analysis of the .africa Independent Review Panel
(IRP) Declaration, which has implications for other gtlds that may have
been similarly denied.

Thanks,
Robin

http://www.ipjustice.org/internet-governance/icann-accountability-deficits-revealed-in-panel-ruling-on-africa/

ICANN Accountability Deficits Revealed in Panel Ruling on .AFRICA
*“Fortress ICANN” No Longer Able to Shield Itself from Accountability*

In an important test of ICANN’s primary accountability mechanism, its
Independent Review Process (IRP), the organization has been handed a
stinging blow over its mishandling of the bid for the new generic Top-Level
Domain (gTLD) .AFRICA.

At the crux of the issue are two competing applications for the .AFRICA new
gTLD and the decision by ICANN’s Board to abdicate its responsibility to
ensure that ICANN’s evaluation and subsequent rewarding of the domain was
carried out fairly, transparently, and in accordance with the
organization’s Bylaws, Articles of Organization, and established policies.

The unanimous IRP Panel of 3 distinguished adjudicators declared that both
the actions and inactions of ICANN’s Board with respect to the application
of DotConnect Africa Trust for the .AFRICA gTLD were inconsistent with
ICANN’s Articles of Incorporation and Bylaws. The Panel found that both
ICANN’s Board, and its constituent body, the GAC, breached their
obligations to act transparently and in conformity with procedures that
ensured fairness.

As a result, the Panel recommended that ICANN continue to refrain from
delegating the .AFRICA gTLD and permit DCA Trust’s application to proceed
through the remainder of the new gTLD application process. Although the
award did not include reimbursing DCA Trust’s legal fees and expenses,
ICANN was found to be liable for bearing all the costs of the IRP and the
totality of the costs of the IRP provider, more than U.S. $400,000.

Several days after the Panel’s unanimous declaration, the ICANN Board of
Directors met on 16 July 2015 and decided to accept the Panel’s finding and
place DCA Trust’s application back in the evaluation process. Given the
growing pressure on ICANN to accept meaningful accountability reform,
including an independent IRP that is truly capable of correcting the
organization’s mistakes, the Board had little choice but to accept the
Panel’s recommendation.

The Panel noted that the IRP is the only independent third-party process
that allows review of board actions to ensure their consistency with the
Articles of Incorporation and Bylaws. Furthermore ICANN requires all new
gTLD applicants to relinquish all their rights to seek redress against
ICANN in courts of law for any harm caused by ICANN or any misconduct by
ICANN.

Accountability requires that an organization explain or give reasons for
its activities, accept responsibility for them, and disclose the results in
a transparent manner. Not only did ICANN fail to provide a rationale for
denying DCA Trust’s application, it did not even require that a reason be
provided before killing the application that ICANN was paid $185,000 to
evaluate fairly. Neither principles of equity nor ICANN’s corporate Bylaws
and Articles would allow that decision to stand unchallenged.

*ICANN’s Board Violated Its Obligations of Due Diligence and Fairness*

After ICANN’s Governmental Advisory Committee (GAC) issued “consensus
advice” objecting to DCA Trust’s application, ICANN’s Board summarily
awarded the .AFRICA domain to the African Union Commission, DCA Trust’s
competitor. When DCA Trust filed for a reconsideration of that Board
decision based on irregularities and non-transparency of the GAC decision
making process and also based on allegations of staff misconduct
discriminating against DCA Trust, the reconsideration request was also
dismissed out of hand by ICANN’s Board.

However ICANN’s Bylaws require the organization’s Board and its internal
constituent bodies to operate to the maximum extent feasible in an open and
transparent manner and consistent with procedures designed to ensure
fairness.

Due diligence required a conversation with the GAC about its objection,
even where the advice was consensus advice. But ICANN’s Board was found to
give undue deference to the GAC objection and failed to investigate the
basis for the decision, even though it is consensus advice.

This IRP declaration is important because it implies the board can no
longer passively accept GAC consensus advice to object to a new gTLD
application (or anything else) without conducting adequate diligence into
the decision making process and exercising independent judgment of its own.
ICANN’s Board cannot hide behind murky “GAC objections” to block
applications given the Board’s affirmative duties of due diligence and
fairness in carrying out its activities.

What this ruling reveals is that GAC has been granted too much autonomy in
ICANN’s decision making process given the Board’s ultimate responsibility
for GAC as a “constituent body” of ICANN. But ICANN’s Board has no
involvement in, much less control over, whether the GAC grants to any party
voting membership status; that decision remains within the sole discretion
of the GAC. Thus, although the Board is legally responsible for the
decisions, GAC holds a growing power over those decisions, but bears no
legal responsibility for them.

ICANN’s board failed to conduct due diligence and investigate if the
organization’s constituent bodies, the GAC in particular, were operating in
a manner of openness, transparency, and fairness.

Because the board did not investigate allegations of inappropriate staff
conduct after being put on notice of discriminatory actions, it was found
to have violated the organization’s Bylaws’ obligation to exercise
appropriate care and diligence in carrying out its duties and activities.
By failing to apply ICANN procedures in a neutral and objective manner with
procedural fairness, ICANN breached its Articles and Bylaws.

*ICANN’s Board Gave Improper Deference to Unaccountable Government Advisory
Committee*

The Guidebook lists three specific reasons why GAC could issue a consensus
objection to a gTLD application, yet upon investigation, the IRP Panel
uncovered that GAC is not constrained in any manner, and in operation, it
can object to a domain name application for any reason or for no reason at
all.

The Panel noted that GAC’s own witness, its former Chair, Heather Dryden,
admitted during the IRP hearing that GAC did not act with transparency nor
in a manner designed to ensure fairness.

In her testimony, GAC’s former Chair explained that, “there isn’t GAC
agreement about what the rights are” of the contending parties, and that
“not all countries have a shared view about what those entities … should be
able to do.” Dryden went on to explain, “because that would only get
clarified if there is a circumstance where that link is forced. In our
business we talk about creative ambiguity. We leave things unclear so we
don’t have conflict.”

Ms. Dryden also stated that the GAC made its decision without providing any
rationale and primarily based on politics rather than on potential
violations of national laws and sensitivities. Indeed she testified that
GAC is not required to provide any rationale with its consensus objections.

*Testimony from its former Chair at an IRP hearing was shockingly
illuminating on how GAC reaches decisions:*

Arbitrator Kessedjian:
So, basically you’re telling us that the GAC take a decision to object to
an applicant, and no reasons, no rationale, no discussion of the concepts
that are in the rules?

The Witness:
I’m telling you the GAC did not provide a rationale. And that was not a
requirement for issuing a GAC –

Honorable Judge Cahill:
But you are also want to check to see if the countries are following the
right – following the rules, if there are reasons for rejecting this or it
falls within the three things that my colleague’s talking about.

The Witness:
The practice among governments is that governments can express their view,
whatever it may be. And so there’s a[…] deference to that. That’s certainly
the case here as well. The – if a country tells – tells the GAC or says it
has a concern, that not really something that – that’s evaluated, in the
sense you mean, by the other governments. That’s not the way governments
work with each other.”

Honorable Judge Cahill:
So you don’t go into the reasons at all with them?

The Witness:
To the issue of consensus objection, no.

But the Panel was unimpressed with such a sloppy decision making process,
particularly given ICANN’s duty to act the public interest and to obey its
own Bylaws. According to the Panel:

“ICANN was bound by its Bylaws to conduct adequate diligence to ensure that
it was applying its procedures fairly. Section 1 of Article III of ICANN’s
Bylaws, require it and its constituent bodies to “operate to the maximum
extent feasible in an open and transparent manner and consistent with
procedures designed to ensure fairness. The Board must also as per Article
IV, Section 3, Paragraph 4 exercise due diligence and care in having a
reasonable amount of facts in front of it.”

Thus ICANN Board was legally required to conduct a meaningful review of its
previous decision to accept the GAC objection advice and it did not. The
Panel declared, “[I]n 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.” The Panel said it would have had a similar
expectation with respect to the Board’s response to the GAC consensus
objection.

Instead of investigating the conflict or providing a meaningful
reconsideration of its prior decision, the Board simply accepted the GAC
objection as if it were definitive on the matter, rather than an input to
consider. The law does not allow ICANN’s Board to abdicate its
responsibility to govern ICANN to the GAC; nor may it violate its Bylaws’
obligations to conduct ICANN’s affairs with fairness and transparency,
simply because GAC desires a specific policy objective.

ICANN’s claim that “the Guidebook explicitly states that Early Warnings may
be issued for any reason” did not hold much sway with the Panel, which
declared that ICANN must follow rules, notably its Bylaws and Articles,
which require transparency and fairness in the administration of its duties.

At the 16 July special Board meeting, ICANN’s Board stated it would ask the
GAC if it wishes to refine its consensus advice to object to DCA Trust’s
application, provide further information regarding that advice, or
otherwise address the concerns raised in the Panel’s declaration regarding
GAC. The continued development and impact of GAC advice on ICANN’s
decision-making process is particularly worth watching going forward.

*ICANN Staff’s Various Attempts to Impede IRP Accountability*

The Panel noted a number of times throughout the lengthy IRP process when
ICANN staff attempted to reduce the ability of the Panel to provide
meaningful accountability.  Just as ICANN’s Cross Community Working Group
on Accountability begins to examine “ICANN staff accountability” in the
overall accountability framework of the organization, the Panel’s
declaration is all too illuminating on the significant hurdles one must
traverse when trying to hold ICANN accountable for its actions.  At every
turn, ICANN staff, particularly its lawyers, attempted to erect barriers in
the process that would insulate the organization from responsibility and
render the IRP impotent.

*“The Panel is also of the view that any attempt by ICANN in this case to
prevent it from carrying out its independent review of ICANN’s Board’s
actions in the manner that the Panel considers appropriate under the
circumstances deprives the accountability and review process set out in the
Bylaws of any meaning.”*

Some examples that came out during the proceedings:

*ICANN claimed the Panel could not examine witnesses.* The Panel decided
otherwise and noted that both ICANN’s Bylaws and the Supplementary Rules
require an IRP Panel to examine and decide whether the board has acted
consistently with it obligations. Without the ability to examine witnesses
and test the veracity of their claims, the Panel would be unable to ensure
that the parties to an IRP are treated with equity and given a fair
opportunity to present their case.

*ICANN claimed the Panel could not suggest a remedy if violations were
found.* The Panel disagreed with ICANN’s claim because if the IRP mechanism
is intended to provide a remedy for a claimant materially injured or harmed
by Board action or inaction, then naturally the IRP Panel may recommend how
the ICANN Board might fashion a remedy to redress such injury or harm.

*ICANN claimed the Panel’s standard of review was to be “deferential” to
the board of directors*, rather than a de novo standard, which is an
objective and independent one, examining whether the Board acted or failed
to act in a manner inconsistent with ICANN’s Articles or Bylaws. The Panel
declared that the IRP was specifically designed and set up to offer the
Internet community, a de novo standard of review that would ensure that
ICANN acted in a manner consistent with its Articles and Bylaws.

*ICANN claimed that an IRP was not permitted to address whether the GAC did
anything inappropriate* and could only consider Board actions or inactions.
The Panel, however, noted that GAC was clearly a constituent body of ICANN
and was therefore required to act transparently and in a neutral and
objective manner and that it was empowered to examine that conduct.

Astonishingly, before publishing the Panel’s declaration, ICANN redacted
key text from the declaration in at least 39 separate places to further
hide its misdeeds. According to sources who have seen the un-redacted
ruling, the deleted text primarily discusses specific instances of ICANN
staff misconduct including ICANN’s senior management’s drafting of the
letter which it then relied upon to provide the winning bid for .AFRICA to
DCA Trust’s competitor. There appear to be redactions also of the GAC
former chair’s testimony explaining how “the political process” at ICANN
works.

Clearly it is inappropriate for ICANN to abuse its position in the
publication of the IRP declaration to censor instances of ICANN staff
misconduct and GAC unaccountability from public view. As the redacted
declaration is already significantly damning with respect to revealing
ICANN accountability failures, it begs the question as to just how much
more unflattering the redacted text must be. Even after ICANN was severely
rebuked by the Panel in its ruling for its many instances of inappropriate
conduct in this matter, ICANN continued with its usual practice of hiding
the extent of its misconduct from the public it allegedly serves. A new
culture of transparency in every aspect of key decisions must take root at
ICANN before the organization can be given any greater responsibility to
serve the public, rather than not itself.

The Panel stated that, “ICANN is not an ordinary California nonprofit
organization. Rather it has a large international purpose and
responsibility to coordinate and ensure the stable and secure operation of
the Internet’s unique identifier systems.”

*Important Precedent Over-Turning “Presumption” that GAC Advice Must be
Obeyed*

This ruling is significant in many respects, including demonstrating the
absolute necessity of having an IRP that is truly independent of ICANN’s
Board and staff. Managing the Internet’s domain name system requires a
level of competence and trustworthiness to the public interest that ICANN
has not yet shown itself mature enough to undertake without an independent
adjudicator of ICANN’s actions.

This ruling could also have important precedential value for the many other
new gTLDs, which have also been negatively impacted by GAC advice or
objections that may not comport with ICANN’s legal obligations to follow
rules in a fair, transparent, and objective manner after conducting due
diligence.

The “presumption” that GAC consensus objections to new domains shall be
obeyed by ICANN’s Board has been solidly overturned by the Panel since
neither the Board, nor the GAC itself have required the GAC to follow rules
or process, to operate fairly, or even state reasons to objections that can
be addressed.

Furthermore, the Board may not abdicate its responsibility and hide behind
GAC decisions without undertaking its own independent inquiry and
exercising its own judgment as to whether proper process and appropriate
decisions were taken. The light shown on the non-transparent and lawless
nature of ICANN’s GAC calls the actions and structure of the entire
organization into question.

ICANN cannot promise the world transparency, fairness, due diligence, and
objectivity in its exercise of these important responsibilities at the same
time that it does not require those qualities of its constituent bodies,
including GAC, the Board, and ICANN’s staff.

Another important consideration from this ruling is the tremendous cost and
time that one must invest to try to hold ICANN accountable. DCA Trust could
have easily spent a million dollars to bring this action to completion in
lawyers’ fees, panelists’ fees, and other expenses. New gTLD applicants are
required to waive all their rights to legal enforcement by courts of law,
so the IRP is the only independent mechanism available to those harmed by
ICANN, and one must be prepared to spend millions of U.S. Dollars in order
to have their rights enforced. Not exactly a mechanism that is accessible
for 99% of the world’s population, despite ICANN’s global impact and claim
of public service. In any event, the .AFRICA is among the most important
and precedential IRP declarations ICANN has ever received.
ICANN Staff Redactions:
By Robin Gross <http://www.ipjustice.org/author/patrick-2/>|July 16th,
2015|Internet
Governance <http://www.ipjustice.org/category/internet-governance/>,
Publications <http://www.ipjustice.org/category/publications/>



-- 
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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