Following another inconsistent evaluation of the gay community and their global effort to secure the right to operate .GAY on the Internet, the Economist Intelligence Unit (EIU) has once again been caught exempting themselves from adhering to explicit words and language used in defined process. Unfortunately this time ICANN appears to be turning a blind eye to the EIU’s double standard and blurring the lines on when explicit and vague words matter.
In an aggressive response to dotgay LLC’s latest reconsideration request, ICANN appears to be playing smoke and mirrors around the facts, barking back that reconsideration isn’t warranted simply because the gay community is unhappy with the EIU’s evaluation. Sure the LGBTQIA are displeased with how the EIU further marginalized the community and its efforts to secure .GAY, but it’s the Board Governance Committee’s (BGC) responsibility to ensure that process is followed and applicants are evaluated based on a transparent process and published rules. This includes strict interpretation of the uncompromising words used in the EIU authored Community Priority Evaluation (CPE) Panel Process Document.
According to the facts, the EIU has once again gone rogue on the implementation of their self-scripted CPE Panel Process Document. The documents clearly indicate that an “evaluator” is responsible for the verification of support/opposition letters, which also includes contacting the organizations, yet it has been proven by dotgay LLC and acknowledged by ICANN that it was not the evaluator who verified the letters in either .GAY CPE. Seemingly and without any transparent permission, the EIU has changed their own process and inexcusably ICANN now appears paralyzed or unwilling to protect the interests of the community and applicant. Has ICANN really drawn this line in the sand?
It should be noted that dotgay LLC has already exposed, and ICANN has already acknowledged, the EIU violating a published rule in the first .GAY CPE. ICANN’s acknowledgement of the violation resulted in dotgay LLC receiving a new CPE in 2015, but at the time the BGC refused to address other allegations against the EIU. It remains a concern of dotgay LLC and other applicants that the lack of transparency at the EIU has become a breeding ground for larger and more gratuitous violations of fairness for community applicants. ICANN has refused to look beyond the EIU’s front door or seek any third party verification of the EIU’s research and findings in cases where community concern has been raised. ICANN has also ignored global government advice on such concerns for the current round of TLDs.
In a rather condescending approach to examining the link between the term gay and the LGBTQIA population during CPE, the EIU suggests the gay community should have magically known how the EIU would eventually interpret vague language like “overreaching substantially” from the applicant guidebook. Despite the gay community’s well-reasoned interpretation of such vague language, not already explicitly defined by ICANN in the guidebook, the EIU has shown resistance to giving the LGBTQIA a fair shake as an inclusive community. Nor has the EIU been applying a consistent measure of “overreaching substantially” among other applications, with the gay community being among the most disadvantaged. In the same breath however the EIU is granting itself plenty of flexibility reinterpreting explicit statements describing the CPE process in their self-authored CPE Panel Process Documents.
In the end, accountability mechanisms exist to ensure fairness and provide protection against a variety of process violations, but if ICANN is unwilling to allow the mechanisms to work properly, ensuring there is one standard and not two, then what is the point. It’s clear that ICANN has its reputation, third party contractors and threat of litigation to protect, but is that more important than ensuring that a marginalized population like the gay community isn’t further marginalized in an unfair and non-transparent process.
The message currently being sent to the gay community is that words only matters when it benefits ICANN. The ICANN process is using words to divide the gay community, while the LGBTQIA are simply asking that a commonly-known and utilized word for our community be used to further unite us. When will the interests of the LGBTQIA finally matter?
#Yes2dotgay because #AllWordsMatter
dotgay LLC has filed a new reconsideration request with ICANN to have the BGC’s latest decision reviewed for inaccuracies and inconsistencies. The filing can be viewed at https://www.icann.org/resources/pages/reconsideration-16-3-dotgay-request-2016-02-18-en
It’s a little déjà vu this time of year awaiting another response from ICANN’s Board Governance Committee (BGC) on the latest reconsideration request filed by dotgay. After receiving another failing score from the Economist Intelligence Unit (EIU) on the all-important Community Priority Evaluation in October 2015, dotgay has once again caught the EIU not following their self-scripted ICANN approved processes to ensure consistency among all evaluations. ICANN is expected to make a ruling on the reconsideration request in early January 2016.
In what will likely be an easy task for the BGC to call out the EIU on their violations, hides the solution that they might offer to the gay community. Considering the EIU has mishandled the .GAY application twice now and not followed ICANN’s direct instructions to provide new panelists during the second evaluation, dotgay has called for ICANN to overturn the EIU decision and award a passing grade to the .GAY community application. If ICANN chooses to force a third evaluation then dotgay has requested that the EIU have no role in the proceedings.
In ICANN’s own words, they adamantly deny having any information on who at the EIU evaluated the dotgay application on the second attempt when asked.
“With respect to Item No. 3, seeking detailed information on the CPE Panels, to help assure independence of the process and evaluation of CPEs, ICANN does not maintain any information on the identity of the CPE Panelists. ICANN (either Board or staff) is not involved with the selection of a CPE panel’s individual evaluators who perform the scoring in each CPE process, nor is ICANN provided with information about who the evaluators on any individual panel may be.” – DIDP Request 20151022-1 (page 7)
Contained in dotgay’s reconsideration request is evidence that if the EIU was properly following their own ICANN approved processes for conducting evaluations then at least one of the panelists for the first evaluation also participated in the second evaluation. This is not only a slap in the face to the gay community for disadvantaging the community application in such a crucial evaluation, but it is a big middle finger to ICANN and the Board Governance Committee who have provided very clear instructions on how to proceed following the EIU’s original mishandling of .GAY.
In the end it’s the gay community and the contributing efforts of the 250+ LGBTQIA organizations around the world that get the short end of the stick because of the EIU’s actions. Passing the community evaluation would avoid the extortionist-like price tag expected of the community to claim .GAY at auction. The EIU’s actions contradict all common sense and can only be understood as the outcome of a hostile environment or the product of sheer incompetence by ICANN or the EIU.
The BGC not only has the opportunity right now to right the EIU’s wrongs and maintain integrity in their new gTLD program, but they also have the opportunity to properly serve the public interest by resetting the path of .GAY in the direction of community status. Community operation is the only option that truly ensures community benefit and protection.
The issue of accountability has certainly been a topic of great discussion and debate at ICANN over the past few years, but is the overseer of the Internet’s naming system truly ready to embrace accountability into the organization’s DNA at the levels being requested by the US government and the ICANN community?
Since the proposed IANA transition was first announced, amazing work by the Internet community has been initiated to beef up accountability at ICANN and make it a top priority. This means not only accepting the changes, but actually implanting and living up to an obligation for greater transparency. Whether it is in the new gTLD implementation or in transparency processes necessary for accountability, like DIDP requests, there are too many examples of where ICANN does not live up to current standards. Most readers will be able to recall their own most painful experiences with the lack of accountability by corporate ICANN.
One instance that is painful to the gay community is ICANN’s lack of attention, desire or ability to prevent Community Priority Evaluation (CPE) infractions, or even hold the Economist Intelligence Unit (EIU) accountable for their evaluations. This has exposed many shortcomings with the process. Basic and reasonable oversight by ICANN designed to ensure process compliance that protects the interests of all applicants and the communities they represent, has clearly not been a priority for ICANN.
Let’s be reminded that community TLDs by design require and provide for community accountability, an especially important attribute for strings that are linked to vulnerable populations prone to abuse. Such accountability requirements also heighten a reciprocal expectation from the community and its stakeholders should the EIU choose to fail a community endorsed application in CPE. Instead, ICANN has refused to honor basic principles of transparency. In the process ICANN is putting at risk the very accountability efforts that communities have sought from community applicants.
Not only has the EIU shown it was not 100% willing or competent to follow its own published guidelines to achieve consistency goals, it has also been shielded by ICANN from having to provide proof of its work or nuanced data used in CPE. Despite asking for research evidence and documents referenced by the EIU, ICANN has refused to pass the request onto the EIU or make them produce materials cited in their results. ICANN’s resistance delivers a stronger “lack of confidence vote” in the EIU’s methods than it does to highlight the organizations commitment to transparency.
In stark contrast to ICANN’s handling of the EIU, the .GAY community application has provided a strong focus on accountability to the gay community and end users since well before reveal day. In fact, it is the only application for .GAY that commits to ongoing oversight and accountability to the LGBTQIA in a manner that extends beyond any letter verification or vague test around reciprocal representation awareness of the community’s largest organization, as conducted by the EIU.
When you step back and look at the bigger picture, what you quickly realize is that ICANN’s issue with accountability is perhaps greater than even the concerns of the US government. Without accountability being part of the fabric and culture used to operate and make decisions as an organization, it will always be pulled into question in moments of crisis. This is exactly what has happened with the gay community’s second CPE, despite prior and numerous concerns elevated around the EIU’s handling of the CPE process.
Offering dotgay LLC a second CPE and calling it accountability was ICANN’s response to having their third party evaluators drawn into question. Perhaps naïve on ICANN’s part, but not unexpected by the gay community, round two of CPE has resulted in further and more serious issues with the same root problem – The EIU and the way they fulfill their responsibilities. Hopefully ICANN sees that more clearly now.
Accountability is not just a thing to measure; it is THE thing to measure in an organization like ICANN whose mandate is to play a leading role in serving the public interest.
by: Jamie Baxter
As most of you know the .GAY initiative has been a passion of mine for the past 5 years. Unfortunately, the globally coordinated LGBTQIA efforts to secure .GAY as a domain that operates in the interest and benefit of all LGBTQIA have once again hit a road block with the governing body of the Internet – ICANN.
The dotgay community application for .GAY was designed over years of engagement, discussion and endorsement from LGBTQIA’s on every continent, including the organizations that serve them. Despite these years of thoughtful planning to ensure protection and benefit for all those commonly included in the umbrella of “gay community,” ICANN evaluators have raised the bar beyond ICANN established requirements for community applications like .GAY and suggested that the homosexual male and female segment of the community should have excluded our trans, intersex and ally community members in order to succeed.
Why you might ask? Well using the words of the ICANN evaluators, the TI&A are not “gay” and have no association to the word “gay.” So what is the harm with inclusion and why are the evaluators working against the united approached requested by the community. Our community is founded on inclusion and we find our strength and voice by operating, advocating and supporting each other as a cohesive community. ICANN is forcing our community to be divided when it has clearly asked to be considered as ONE community for the implementation and operation of .GAY.
In the end this really needs to be brought back to the issue at hand – domain names (i.e. website addresses). The dotgay community model simply provides for the inclusion of all LGBTQIA who may want to register a .GAY domain name (acknowledging that some may not) and that all LGBTQIA segments will have a say in how .GAY operates so as to ensure that no harm comes to any segment through the use of .GAY domain names. In the end all LGBTQIA segments will benefit from the contractual commitment made by dotgay to return 67% of domain name profits back into the community. It’s that simple.
ICANN’s acceptance of the Economist Intelligence Unit’s (EIU) grading of dotgay’s application disregards the 250+ community organization expert opinions on how .GAY would best serve the LGBTQIA and perhaps signals that ICANN lacks respect for their own mandate to “serve the public interest,” or at least the significant LGBTQIA portion. The gay community’s “interests” are clearly not being served by forcing the community to compete in auction with the other three non-community applicants for .GAY. None of the other applicants have any community rooting, nor do they have any commitments to operate .GAY in a manner that avoids harm to each and every community segment like dotgay’s community model does.
Its unfortunate that ICANN has created a hostile environment that is not unlike the battle that endangers the LGBTQIA and our advocates around the world in their daily struggle to be recognized and treated fairly in the pursuit of equality. The community, a protected class, has spoken clearly and collectively on the issue of .GAY and it is blatantly being denied recognition and respect by ICANN.
Make your voice heard using the hashtag #Yes2dotgay
One of the important facts about the dotgay LLC community application for the .gay domain name is the guarantee to give 67% of profits from the sale of domain names back to the community in the public interest. Another important fact is that they have not waited for the domain name to be allocated to give to the public interest. They have been giving to the Internet public Interest since day 1.
For the past years, dotgay LLC has been one of those helping to support efforts in Internet governance oriented around human rights and empowerment of users on the Internet. One component of their generosity involves my work. Together with several NGOs, they have contributed toward my independent work on human rights, Internet rights and technology to support human rights concerns.
Among the activities which they helped to fund:
- Extensive participation in ICANN activities, including work on human rights impact, and accountability.
- Participation in World Summit on the Information Society (WSIS) activities that involve Freedom of Expression and ICT for Development.
- Participation in US delegation to World Summits on ICT issues advising the US delegation on non commercial issues including those of LGBTQIA community users.
- Support of early work on research to discover protocol considerations that affect the use of the Internet for freedom of expression and of assembly. This work has led to the creation of HRPC a candidate research group in the Internet Research Task Force.
Beyond this, dotgay LLC supported grants for LGBTQI individuals from countries where the gay community is endangered, to attend international fora.
dotgay LLC is one of the funders that enabled me to do the work that brought me the first annual ICANN Multistakeholder Ethos award in 2014 while still being able pay my mortgage and put food on the table. Without their support, I would have been hard pressed to continue at times.
All of this was done without any quid pro quo; done without any sort of policy ‘guidance’ or special requests. This is a rare form of generosity and commitment to the cause of the public interest. It is time that I recognize this and thank Scott Seitz, the leader of dotgay LLC, for his approach to the public interest.
- Reconsideration Requests – Method by which decisions of the Board of Directors or action of the staff can be appealed to the Board of Directors
- Independent Review Panel (IRP) – Method by which decisions of the Board or actions of the staff can be appealed to external reviewers.
The current mechanisms are very limited.
Reconsideration requests will only be considered if they involve a process problem; for example if they have a conflict with established policy or are based on incomplete or false information. It does not matter if they conflict with ICANN mission or core values. This has led to a situation where very few decisions are ever overturned after reconsideration.
The Independent Review Panel is administered by an international dispute resolution provider and is empowered to review any decision of the Board, which runs counter to the Articles of Incorporation or the Bylaws and that causes direct harm to an appellant. IRP recommendations are not binding on the Board. While the review panel is selected by the dispute resolution administrator, the ICANN Board of Directors must approve their selection and any operating rules and procedures the panel may establish. The current IRP may only establish its recommendations based on Board behavior; for example did they employ independent thought, engage in due diligence, and were they free of conflict of interest. The current IRP does not take into account issues where decisions made, even with the best of intentions and due diligence, run counter to the Articles or Bylaws. Additionally the current IRP uses a loser pays methodology which requires a substantial pre-payment by any prospective appellant, a deposit that can be as high as a million US dollars or more. Finally the current IRP does not allow for third party action, such as third party requests for review by the Supporting Organizations and Advisory Committees of the ICANN community on behalf of public interest. In order words, very little can actually be brought to an appeal, very few have standing to use the IRP, and even fewer can afford it.
The current redress mechanisms also include an Ombudsman’s office that is responsible for making non binding recommendations based on independent evaluation of claims of ICANN unfair actions.
The proposal, which is still in review and open to comment, is proposing a set of improvements.
The most important improvement is that the mechanisms have been retooled to serve accountability to the community, to the mission and to the values of ICANN as expressed in the Articles of Incorporation and the Bylaws. The redress mechanisms will no longer focus just on errors, omissions and bad behavior. When the accountability recommendations are approved and implemented the tools will exist to hold the Board and ICANN Staff to a standard that includes respecting ICANN’s core value of serving the global public interest.
The recommended scope of the Reconsideration Process would expand to include requests concerning Board and Staff actions or inactions that contradict ICANN’s Mission or Core Values. Among the improvements in the reconsideration process are that the ICANN Ombudsman will be responsible for the initial evaluation for all reconsideration requests, instead of being done by the ICANN legal team as is the case with current reconsideration requests. Additionally, provision will be made for the requester to rebut a proposed resolution before it is approved by the full Board of Directors.
The new Independent Review Panel will consist of a group of at least 7 members who will be selected for expertise, diversity and independence for a five year non renewable term which can only be terminated for an enumerated cause such as corruption or other malfeasance. In order to keep the expenses lower for those requesting an IRP review, the IRP will be paid for by ICANN, with appellants generally responsible only for their own legal expenses. Standing will include not only parties who have been harmed, but the ICANN community in cases where ICANN mission or core values or the powers of the community have been abrogated. While cases will be reviewed by a 3 member decisional panel, appellants will have the opportunity to make a process-based appeal to the full panel if needed. In cases where the IRP determines that the ICANN Board or Staff violated the Articles or Bylaws of ICANN, their decision will be binding on the ICANN Board.
In addition to changes in scope and process, each of the mechanisms will also have transparency provisions requiring the publication of reasons for decisions and dismissals.
If approved and implemented properly, these new redress mechanisms will provide a vast improvement in ICANN accountability. All readers are invited to participate in the current review, and are encouraged to submit comments supporting these changes. The ability to have reconsideration requests that are fair and can take substantive issues of ICANN mission, core values and global public interest into account is important. A financially accessible IRP that can make binding decisions represents the opening of a new age of ICANN accountability.
dotgay has been enduring in its quest to obtain its deserved community status, the community status that enables the Gay community to finally get the contract on our community TLD, .gay. After having been the victim of a faulty first Community Priority Panel (CPE) evaluation, they are undergoing a re-evaluation. The results of this evaluation will have a strong effect on whether the Gay community gets its domain name .gay – they wait, and they wait and they wait … Keeping our fingers crossed and hoping for the decision that recognizes and supports the Gay community of LGBTQIA individuals and organizations.
dotgay has also continued its work at ICANN on other important issues. As the years in the struggle to gain the community TLD have shown, there are two serious deficiencies at ICANN: respect for communities and accountability. dotgay is engaged in efforts in both areas.
In terms of respect for communities, we are still suffering though a system that puts any community through an ordeal to prove itself to a group of so-called experts who know nothing about our communities. We are working together with other community applicants in the Community gTLD Applicant Group (CTAG) on appeals to the Ombudsman for fairness. The Ombudsman is investigating the complaints from the CTAG and we are awaiting his final determination and recommendations. We can only hope at this point that the evidence of unfairness that community applicants have presented are heeded. CTAG presented evidence on the injustice inherent in the way a program that was meant to support communities was transformed by ICANN into a program that punishes communities.
Beyond the problems in the current new gTLD program, work has begun on follow-on gTLD program. If we want to see community applications respected in the future we will need to make sure this program is designed to help communities, especially those from developing regions and endangered communities. There was a discussion group over the last year that came up with a set of issues that needed to be resolved before any further new gTLDs applications were opened. Members of the CTAG, including from dotgay, participated in this group to advocate support for communities in the future. There will be many opportunities to get engaged in the working group that designs the next set of policies and implementations over the next few years.
The other issue critical for the gay community, as well as the rest of the Internet, is ICANN’s Accountability. Over the last year, dotgay has been involved in a process meant to improve ICANN Accountability. That accountability process is one part of the process – currently under review – of transitioning oversight of ICANN from the National Telecommunications and Information Administration (NTIA) of the the US Department ot Commerce to the stakeholders of the Internet, including the Names operations (ICANN), the Numbers operations (NRO) and the Protocol operations (IETF). In terms of accountability, a major part of the focus has centered on ICANN’s redress mechanisms including:
- The Reconsideration Requests – when an appeal goes to the Board to request reconsideration of a staff action or a Board decisions
- The Independent Review Panel (IRP) – when an appeal goes to an external appeals panle
- The Ombudsman – who can take appeals based on the fairness of treatment by ICANN of its stakeholders
As gTLD applicants, dotgay has experience with the Reconsideration Requests and with the Ombudsman. Whether dotgay will need to appeal to the IRP remains to be seen based on the results obtained from the the latest CPE. The Cross Community Working Group on ICANN Accountability has now released a second draft of recommendations for improvements, including improvements in the various redress mechanisms. These are important improvements that need to be supported and included in the bylaws of ICANN. The recommendations are currently undergoing review, and the dotgay-community is encouraged to comment.
If there is interest in the dotgay-commuity in any of the subject discussed in this update, a webinar can be arranged to explain the process and the changes.