ICANN Board must act in response to Dot Registry scandal

Someone needs to lose their job over this.

An Independent Review Panel has exposed discrimination and unfairness in ICANN’s evaluation of new top level domain applications. The case involves Dot Registry’s applications for the top level domains .INC, .LLC and others.

This is the third time ICANN has lost an independent review. The other two cases, involving .XXX and .AFRICA, exposed the ICANN board being unfair, mainly due to tremendous political pressure from governments and/or the GAC.

But this decision is special.

In this case, it is the ICANN staff, not the board, that takes center stage. The ICANN legal department was caught red-handed coaching a so-called “independent” evaluator to tilt the outcome of an application in a direction deemed desirable by…ICANN legal. It’s pretty clear that there was no independent evaluation; the whole process of farming out community evaluation to third parties was a sham.

Worse, when the unfair actions were challenged in ICANN’s Reconsideration Process, we saw the ICANN staff (whose actions were responsible for the challenge) present the issue to the ICANN Board Governance Committee (BGC), and we saw the BGC roll over and play dead, as it always seems to do. The board didn’t take its review duties seriously. In the words of the arbitration panel, “The BGC failed to make any reasonable investigation or to make sure it had acted with due diligence…” A journalist summarized it all aptly:

…the ICANN legal team helps redraft supposedly independent Community Priority Evaluation decisions to make them less likely to be thrown out on appeal, then drafts the very decisions that the compliant BGC later uses to throw out those eventual appeals.

So the Board’s Reconsideration process was a sham, too.

Who’s in charge here? Concerns about ICANN staff – particularly ICANN’s legal department – being the unaccountable power behind the throne have dogged the Corporation for many years. Now we have solid evidence that those fears are real. A belief that board reconsideration was simply a placebo administered and controlled by the staff has also been confirmed.

We hope the ICANN board understands how serious this matter is. We hope it understands that strong action must be taken to reassert its credibility and accountability. We believe that the head of ICANN’s legal department needs to go. This was not an honest mistake or a judgment call. This was deliberate and systematic misrepresentation and manipulation of the process.

ICANN needs to distance itself from this kind of action, firmly and quickly. The best way to do this is for the people directly responsible for the unfair practice to be let go. This is not a time to circle the wagons and become defensive. This is a time to act in the spirit of accountability and the new bylaws.

If the intrinsic justice is not sufficient motivation for ICANN’s board, surely it is aware of the fact that this latest scandal is being used by opponents of the IANA transition as an argument for why ICANN should not be released from control of the U.S. government.

Arguments linking the transition to this scandal make no sense, of course. The simple fact is that it all happened under the Commerce Department’s watch. Indeed, this kind of thing has gone on in ICANN for many years, and U.S. government oversight clearly does not prevent it. The NTIA has bigger political fish to fry; it isn’t going to yank the IANA contract because of injustices to specific TLD applicants. Indeed, the NTIA under the Bush Administration played a major role in precipitating one of ICANN’s worst IRP losses, the .XXX case.

Further, it was ICANN’s Independent Review Process that exposed the scandal, showing that in some sense, its process does work.

What will help are two things:

  1. Immediate action to fire the staff member(s) responsible for the abuse. This would be a good way for ICANN’s new CEO to demonstrate a commitment to accountability and his commitment to fairness;
  2. The new accountability arrangements that will go into effect with the transition. Specifically, the Reconsideration process has been revamped to eliminate ICANN legal as the mediator of complaints, thanks to changes proposed by Noncommercial stakeholders.