The Internet Corporation for Assigned Names and Numbers (ICANN) is showing that it can be intimidated by governments. Such capture can only lead to more politicization of the domain name system and encourage more geopolitical tension over Internet governance. It is never the multistakeholder process that creates such problems, it is the ICANN Board itself. In the recent case on the delegation of .AMAZON to Amazon Corporation, ICANN board shows its lack of will to respect its own bylaws and principles and deal with the issue. In this blog, I will cover the recent developments on the allocation of .AMAZON and the conflicts that were raised surrounding it. I will also highlight how the ICANN Board is unwilling to follow its own Bylaws and make a decision about .AMAZON application.
Why was there a conflict?
In 2012 Amazon Corporation applied for .AMAZON in accordance with the New gTLD applicant guideline (a multistakeholder policy document). Its application received the highest possible score in the initial evaluation review. But ICANN did not allocate .AMAZON due to objections received from some governments located in the Amazonia region. Those governments’ arguments did not provide any public policy reason, nor did they base their argument on any applicable international law. They just didn’t want Amazon to have a TLD reflecting a name of a river in their region. Bowing to GAC, in 2014 the ICANN Board rejected the application. Amazon filed a complaint using the Independent Review Process. Ultimately the Amazon company was upheld by the Independent Review Process. The panel concluded that the Board “cannot accept GAC consensus advice as conclusive” and that in denying the application, ICANN failed to provide sufficient reasons for doing so. The panel also concluded that the GAC was at fault for not treating Amazon fairly.
Yet instead of correcting its mistake, ICANN tried to get Amazon and its opponents to reach a negotiated settlement. After two years, that effort has failed.
The failed bargaining process
Amazon Corporation offered an extremely generous Public Interest Commitment (PIC) and various payments to the opposition, including creating alternative TLDs such as Amazonas under the control of the opposing parties. Yet it was not enough. Members of Amazon Cooperation Treaty Organization (ACTO), the opposing party, tried to claim ownership rights over some of the second level domain names that could end in .AMAZON, asserted sovereignty rights over a name that is in common use already as a trademark, and demanded to take part in the governance of .AMAZON. Ultimately, Amazon could not accept the proposal. It has submitted a compromise and is asking the Board to make a decision on the delegation of .AMAZON.
Yet still, it seems the ICANN Board is allowing the conflict to drag on, in the hope that the parties come to a conclusion so that it does not have to make a decision. To appease a few governments, and signal to GAC that it can assert arbitrary veto power, the ICANN Board has proposed to continue these endless negotiations. This time around, it gave ACTO and Amazon Corporation until 7th of June 2019 to negotiate. So the seven-year battle is still going on.
Why can’t ICANN play by its own rules?
In most gTLD application controversies, when governments are involved, ICANN Board makes decisions that are not independent, objective and neutral as required by ICANN bylaws. Or it prolongs the decision-making process. This is not only our observation: the Independent Review Process Panel, a neutral dispute resolution body has also issued declarations in favor of TLD applicants who claim ICANN did not act objectively and delayed the process. It has happened in cases such as .HALAL, .ISLAM and .AFRICA. In .HALAL and .ISLAM it was declared by the IRP panel that ICANN violated its own values as speculated in the Bylaws, by putting the applications on hold. Despite knowing from the previous cases that it is in violation of its bylaws, ICANN’s Board of Directors has yet again delayed making a decision about the .AMAZON application, giving ACTO more time to negotiate with Amazon Corporation.
Time to Decide
It is clear why ICANN delays the decision. There is no legitimate basis on which ICANN could possibly deny the .AMAZON application. Yet, it doesn’t have the fortitude to tell the national governments in the region that their arguments have no merit. The Board has to establish whether a public policy issue is at stake in accepting or rejecting the .AMAZON application. It cannot rely on GAC’s consensus advice which in this case and in other similar cases are based on no rationale and have been primarily based on politics. The Board cannot create public policy out of thin air, nor can it come up with a piece of international law that is applicable to this case. If the Board denies the .AMAZON application, it will do so for purely political reasons to satisfy the governments.
ICANN needs to bite the bullet and make the right decision. ACTO and the GAC have no backing in international law for their opposition. ICANN has the legal and moral authority to overrule their objections. There is nothing they can do if ICANN refuses to yield to their arbitrary demands. It is long past time for them to do so.
And this is not, primarily, about Amazon, which will do fine with or without the domain. It is about the fairness, objectivity and independence of Internet governance. Any and all rights of civil society in the domain name space are at risk if a group of governments can use the ICANN regime to assert control over global resources to which they have no legal or moral claim.