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Category Archives: ICANN Processes and Procedures
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
- 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.
This blog has taken a hiatus the last few months. With recent setbacks in the dotgay community application, concentration switched to how to save the community application for .gay. A lot has happen in many areas since the last blog entry. In this entry I want to focus on the issue of ICANN’s Community Priority Evaluation (CPE) treatment of the gay community’s application for .gay.
The community application submitted by dotgay LLC was given a failing evaluation. One I believe was in error. With strong community support, dotgay LLC has filed for a reconsideration of this evaluation. This reconsideration request has been supported by a significant segment of the gay community including: ILGA, NGLCC, Gay Games, and IGLTA. Because of ICANN bylaws, reconsideration can only be based on the process issues. dotgay LLC has built a very good case against a process replete with errors and omissions that justify overturning the evaluation. As an optimist, I sit here looking forward to an ICANN which in 2015 will use its abilities to right a wrong by declaring a passing evaluation. Anything less will compound the injury that is being done to the gay community.
One of ICANN’s greatest deficiencies is the absence of an appeals mechanism that can adjudicate on the merits of a case. The Board has long been asked to create such an mechanism and it has been recommended by the Accountability and Transparency Review Team. The ICANN Board has not yet delivered on this agreed upon goal.
The dotgay LLC case against the ICANN Community Priority Evaluation has merit.
The ICANN CPE judgement argues that the LGBQTIA community overreached when it picked the name .gay. The decision argues that the dictionary says only homosexual men are gay. The ICANN CPE panel decided that L-BTQIA individuals do not belong to the gay community, even though the LGBTQIA community has identified itself, and been identified by others, as the gay community in so many ways. The ICANN CPE evaluation ignores the reality of our community. Beyond the ubiquity of the references to the gay community in the world’s press, we speak of anti-gay legislation, gay rights, gay persecution and gay marriage. The ICANN CPE decision ignores the fact that ‘gay’ is the word recognized in many languages beyond English, where it stands for far more than just homosexual men. It is a name of our community – the minority who are outside of society’s prevalent hetero-norms. It is a name we know ourselves by and a name we are known by. It is the name a confused child looking for help, searches on throughout the world. It is a name that should be used to create a safe and secure environment for our community instead of being exploited for all the profit it could bring.
dotgay LLC has a strong case to make on the merits.
In arguing the merits of the gay community’s case, the community could further remind an appeals panel that the community provisions of the recommended TLD policy were for the support of communities not as a way of defending against communities. The procedures in the Application Guide Book (AGB) that guide every step of the application procedures, did not follow the policy recommendation for support of communities. Rather, the AGB provided methods for those who want to exploit and profit from communities to attack those very communities. The rules were perversely written to give advantages to standard applications that focused on profit and nothing but profit. As members of a endangered community trying to create a safe space for the LGBTQIA community on line, we should expect support from global public interest institutions such as ICANN, not roadblocks.
I expect the Board to overturn the ICANN CPE decision based on the current process based reconsideration request. But if the ICANN Board does not do so, I encourage the community to continue arguing along side dotgay LLC on the merits of our community case in any venue where the case can be heard.
Some of the topics to be discussed include discussions of:
- ICANN Strategic and Operating Strategy
- IANA Stewardship
- ICANN Accountability
- Issues with the new gTLD process
- Metrics for ICANN performance
- Privacy and Proxy Services Issues
- Dispute resolution procedures for NGO (Non Governmental Organizations and IGO (Intergovernmental organizations)
- ICANN’s role in the global Internet environment
- Constituency and Stakeholder meetings of every variety
Meeting can be attended either remotely or in person. For dotgay-community members who live in LA who may be interested in attending, the meeting is open and is free. You just need to register.
Hope to meet some of you there.
Quite a mouthful that one is.
I have recently joined the GNSO‘s (Generic names supporting organization) Discussion Group on New gTLD Subsequent Rounds (DGNGSR). It is a large group, lots of members and lots people who will just be mailing list observers. Observers are welcome.
This is the first formal GNSO discussion group I know of. It was initiated by the GNSO to start collecting issues that should be dealt with before there is another round. I don’t think any of us know yet what a discussion group does other than discussion, and report back to the GNSO about the discussions. Staff is going to collect the issues and we are going to fill out templates about the issues. These will be input to whatever Policy Development Process (PDP) the GNSO may initiate in the future to establish the policies for these subsequent rounds.
My first contribution of issues to the groups discussion were:
- We, those of us at ICANN, did a terrible job of outreach to and inclusion of developing economies in the current round and there must be remediation.
- We did a terrible job of support for communities in the current round and there must be remediation.
- We now have seen emergent categories of gTLD have been well established, e.g. brand tld, city tlds, community tlds, exclusive tld, public service related tlds &c. We need to develop different application procedures per type. And if we are doing rounds, perhaps different rounds for each type.
- We must avoid reusing many of the processes that we are currently defined as they are confusing and they do not meet the first principle of the original new gTLD recommendations – predictability.
- There should not be another general round but rather specific focused rounds. For example the remedial rounds should happen before anything else. And there perhaps other focused round for cities or for brands. Beyond that, I think we should be heading toward a rolling application process, or perhaps rounds of a day to avoid digital archery effects (i.e.. the process by which the applicant with the most technical prowess get there first in a first come first serve situation)
- When there is name contention, the contenders should have the opportunity to negotiate among themselves to take different related tlds: my example being if 3 applicants apply for .bear, one can have .grizzly, one can have .panda and one can have .babybear. This could replace much of the pain that we are seeing in a situation where approximately a third of the applicants still in processing are in contention processing of one sort or another.
As the discussion develops and as I know more, I will write more.
Incidentally, At-Large, the users group at ICANN, also has a group talking about this, and I am participating in that group too. But I just joined last week, so do not know much, other then they seem to care about issues dealing with developing economies and communities too. I will report on that group’s activity here as well.
May seem a bit ironic and painful to already be talking about the next round while the dotgay community waits on pins and needles for the results of the Community Priority Evaluation for dotgay, but that is the way it goes in policy development. If the community wants to be ready when it is time for the next round and we want that round to be supportive of community needs, we need to start working on it now.
The IANA Stewardship Transition process (IST) was discussed extensively both at the the ICANN Studienkreis and and the Internet Governance Forum 2014. The ICANN Studienkreis is a yearly program organized in Europe where high level experts on ICANN issues are brought together to discuss subjects related to Internet governance and the development of ICANN. This year’s meeting was held in Sofia, Bulgaria from 28-19 August. A panel discussion at the Studienkreis included experts from the US government, the ICANN Government Advisory Committee (GAC), the European Regional Internet Registry (RIR) responsible for the assignment of IP addresses to European ISPs and from Verisign responsible for .com and for maintenance of the root zone for the internet. I was privileged to be invited as the moderator of this discussion.
The Internet Governance Forum, is a multistakeholder process that was initiated by the United Nations in 2005 with a 5 year mandate that was renewed for another 5 years in 2009. Each year the IGF holds an annual meeting where they bring together the various stakeholders in the Internet ecosystem to discuss a multitude of issues. This year’s meeting welcomed over 3000 participants from around the world and from all stakeholder groups including Academia, Business, Civil society, Government, and the Internet technical community.
One of the presentations at the Studienkreis was a very stern warning from one of the more senior members of the community, David Maher from Public Interest Registry. His talk on Accountability and Redress has been published on Circleid. This talk did a very good job of expressing the viewpoint of many of the discussants at both meetings regarding ICANN and accountability. It starts out with :
In ICANN circles these days, accountability is the buzz word. Nearly everybody is talking about it. Generally everybody is in favor of it, but that’s where the agreement ends. This paper urges action by ICANN to provide a means for redress of grievances as an essential element of accountability.
He went on to explain the system of redress at ICANN:
Independent third party review was the procedure invoked by ICM. At the time ICM requested review, in June 2008, the standard of review was simple and straightforward:
“Requests for such independent review shall be referred to an Independent Review Panel (“IRP”), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws.”
Effective in April 2013, the ICANN Board made a number of significant changes in the standard of review. First, requests for review are now referred to an Independent Review Process Panel (emphasis added). In other words, only the process is subject to review, not the real question whether the Board acted consistently with the ICANN articles and bylaws.
After discussing some of the failures of the approach taken by the Board on the issue of redress, the talk ended with:
The unanimous statement by the constituencies and stakeholder groups making up the GNSO put it clearly:
“The entire GNSO join together today calling for the Board to support community creation of an independent accountability mechanism that provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community.
The sentiment expressed at the Studienkreis by Maher was repeated again and again in many different ways in meetings throughout the Studienkreis meeting as well as those held during IGF 2014.
There were several sessions held at IGF 2014 on the IANA Stewardship Transition and on Accountability. Two sessions included a member of the dotgay staff. These sessions have been recorded are are available:
- Accountability in Multistakeholder Governance Regime ICANN
- Main/focus Sessions: IANA Functions: NTIA’s Stewardship
Given the pervasive sentiment that ICANN currently provided weak accountability mechanisms, the discussion on the IANA Stewardship transition circled back to the belief that any plan for transition of the NTIA stewardship for IANA depended on adequate methods of redress and oversight for IANA, and could not proceed unless those issues were resolved. One proposed solution, the creation of a new multistakeholder oversight body was questioned on its accountability attributes. It was asked, “to whom would such a oversight body be accountable,” given that representative structures are still difficult to define in the current multistakeholder model. The problem was termed the infinite regress of accountability. As the discussions went on, suggestions were made for defining accessible methods of binding arbitration to resolve blocking issues. The discussion are ongoing and there are many devils in the design details of any solution. As these discussions proceed, they will be reported on this site. It should be noted that at least two of the operational communities, the protocol parameters and the IP addressing, have argued that their accountability mechanisms are sufficient and do not need to be improved. There are many members of the global community who take issue with this assertion. The discussions continue and there is plenty of opportunity for comment by members of our community.
(It is worth mentoning that the IANA/ICANN issue was but one of the themes discussed at the IGF meeting. Further entries will touch on some of those issues and pointers to some of the better community blogs written on the subject of the meeting will be provided. In the meantime, all of the sessions for the IGF are being made available. More of the sessions are added as time goes on.)
Updates on the Processes
The work has begun on the two parallel but connected processes; IANA Stewardship and ICANN Accountability.
The IANA Stewardship Coordination Group has held several meetings since it was established. It has completed its charter and a request for Transition Proposals and has released a suggested process timeline. It has organized itself around the 3 silos representing the three main IANA functions: Domain Names, IP addresses (IPv4 and IPv6) and protocol parameters. Each of the operational communities, the solos:
- ICANN cross community working group (CWG) for names such a gTLDs and ccTLDs. A call for membership in this group will go out shortly.
- The Numbers Resource organization (NRO) and the Regional Internet Registries (RIRs) for IP addresses and autonomous system numbers.
- The Internet Engineering Task Force (IETF) and the Internet Architecture Board (IAB) for protocol parameters
have begun their work on producing their recommendations on various email lists.
Additionally, there will be calls for comments from the global Internet community. The ICG charter is quite specific about how comments will be handled, they will be forwarded to the operational communities for processing. What is less certain is how they will handle cross-cutting solutions that may be offered either as proposals or as comments. When discussed, the answer is of the type: that bridge will be crossed if and when such a cross cutting proposal is offered. Time will tell. The process suggested by the ICG is that those who have ideas for cross-cutting mechanisms participate in all three of the operational group processes. I am currently following all of the efforts and will report on them as they begin to develop their solutions, with particular emphasis on the solutions discussed in the domain name space.
As discussed in an earlier blog on ICANN Accountability, the process of reviewing ICANN Accountability includes several components:
– A Community Coordination Group to work with the cross community group and to develop the recommendations on ways to resolve ICANN accountability problems, especially those that may result from the transition of the NTIA’s responsiblities.
The ICANN community, a union of all of the major ICANN structures, the Supporting Organizations and the Advisory Communities, had sent a letter objecting to the proposal proposed by ICANN. While there were many specific issues with were documented in a separate letter, the main issue was that the process was decided on by the ICANN Board and Staff without adequate consultation with the community. While technically there had been a community consultation as required, the resulting outcome was so different from anything that anyone expected, that a second community review should have been held. After meetings at the IGF between the community and the ICANN senior staff, ICANN staff agreed to open a 21 days comment period, which will end on 27 September. dotgay-community members should feel free to comment on these important issues and questions.
Another process that is ongoing is the Accountability and Governance Public Experts group has begun its work and has put out a call for experts to be considered for membership in the Accountability Coordination Group. Because of the open comment period on the process, they have extended the call until 30 September 2014, so now is the time to recommend experts from the international LGBTQI community who can be considered for membership. The experts need to have expertise in a subset of the following areas:
- Internet Technical Operations
- International Organizational Reviews
- Global Accountability Tools and Metrics
- Jurisprudence / Accountability Mechanisms
- Internet Consumer Protection (including privacy, human rights and property rights concerns)
- Economics (Marketplace and Competition)
- Global Ethics Frameworks
- Operational, Finance and Process
- Board Governance
- Risk Management
- Governmental Engagement and Relations
- Multistakeholder Governance
Nominees to the process need to have time to contribute to the process of making recommendation for ways to improve ICANN accountability.
A public webinar will be held on Monday, 15 September from 14:00 – 16:00 UTC on the Accountability process.