Saturday, 20 February 2010

ICANN loses an arbitration but still stonewalls on compliance with its bylaws

Yesterday a panel of international arbitrators declared that ICANN — the private non-profit California corporation to which the US government has effectively delegated important aspects of Internet governance — had not acted in accordance with ICANN’s own Bylaws in its consideration of a proposed “.XXX” top-level domain for erotica.

ICANN and ICM Registry, the corporation that had applied to ICANN for the franchise to run a “.XXX” domain-name registry, agreed to submit this question to these arbitrators.

Unfortunatety, nothing about the arbitration complies with ICANN’s bylaws for transparency, independent review, policy development, or decision-making procedures . And ICANN continues to stonewall my request pending since 2005 for an independent review of the (non)transparency of ICANN’s process in approving “.travel”.

Tralliance Corp. applied for “.travel” at the same time that ICM Registry applied for “.XXX”. ironically, ICANN approved “.travel” even though ICANN’s designated review team found that the .travel application failed to meet its initial baseline criteria, but eventually rejected “.XXX” even after finding that it did meet those same criteria. I requested an indepndent review of whether ICANN’s decision-making process in approving .travel complied with ICANN’s bylaws. A few years later, ICM Registry requested an independent review of ICANN’s decision-making process in rejecting .XXX.

ICANN’s mutal agreement with ICM Registry to submit this particular question to a particular mutally-agreed arbitration body, under particular mutually-agreed procedural rules, is a significant step. The arbitration panels declaration that ICANN did not act in accordance with its own bylaws is a step further. But this does not constitute an independent review in accordance with ICANN’s Bylaws. It does not fulfill ICANN’s continuing obligation to implement its independent review Bylaws by designating an independent review provider and adopting procedures for independent review — not on an ad hoc basis, not by mutual agreement after secret negotiations with a single party, and not by secret ex parte negotiations with a prospective arbitration provider while independent review requests are already pending, but through a policy development process conforming with the procedural rules for policy decisions in ICANN’s bylaws.

ICM Registry is, understandably, more concerned with a favorable decision that would allow its business plans to move forward than with the procedures. They chose to accept ICANN’s (procedurally improper) choice of arbitration provider, and chose to follow procedures not in accordance with ICANN’s bylaws. But their willingness to follow those procedures does not legitimate those procedures, negate other pending requests, or require me or anyone else to follow these procedures rather than insisting that ICANN actually bring itself into compliance with its independent review bylaw by (1) conducting a proper policy development process to designate an independent review provider and approve independent review procedures, and (2) acting on the outstanding independent review requests — including mine and those that are even older.

Fundamentally ICM Registry’s objection was and is to the substantive outcome of ICANN’s decision, not the process. Their arbitration request related to the process, but its main goal was and is to overturn the substantive decision. Ultimately, ICANN could accommodate yesterday’s declaration by the arbitrators without any fundamental or procedural change.

In light of ICM’s commercial goals, the cost of arbitration, even at US$1 million or more (the arbitrators charged about half a million dollars, which ICANN had to pay, but ICM Registry had to pay for its own lawyers), is small compared to the potential profits if ICM Registry is awarded the “.XXX” franchise. So ICM Registry had little reason to object to the establishment of procedures and fees unaffordable to individuals or public interest advocates.

Fundamentally, my objection is to the process, and my goal as a journalist is change in ICANN’s process with respect to openness and transparency. This is much more threatening to ICANN, since a ruling in my favor by an independent review panel would require major change in how ICANN operates, not just reversal of a single substantive decision. And I cannot afford, and would not readily “agree” to, expensive procedures. My request is thus much more threatening to ICANN’s established secrecy. Perhaps that is why ICANN has been unable to conduct the kind of discussions with me about my independent review request that it apparently was willing to have (behind closed doors) with ICM Registry.

ICANN has shown that it is sometimes willing, when it is dealing with a commercial issue rather than one of principle, and a commercial opponent with deep pockets, to agree to submit certain questions to arbitration.

Now it needs to move beyond that step to adopt policies for independent review in accordance with its bylaws, and to deal with the backlog of independent review requests — including mine — pre-dating ICM Registry’s arbitration request.

[Update: More discussion in comments in the ICANN blog, Internet Governance Project blog, and a CircleID article.]

Link | Posted by Edward on Saturday, 20 February 2010, 17:21 ( 5:21 PM)

Thank you for keeping us informed on this important development. The fact ICANN does not follow it's own bylaws seems of little importance to ICANN.

Let's see what happens now.

Thanks again
Joe Baptista

Posted by: Joe Baptista, 21 February 2010, 05:28 ( 5:28 AM)

The arbitration panels declaration that ICANN did not act in accordance with its own bylaws is a step further.

Posted by: Anonymous, 8 October 2010, 07:08 ( 7:08 AM)
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