ICANN Accountability: “Creative Ambiguity” at Work in the “.AFRICA” Decision

August 6, 2015

By Clark W. Lackert, Reed Smith LLP

If the June 2015 Buenos Aires meeting of ICANN focused on the principles of Accountability and Transition, the time leading up to the October 2015 meeting in Dublin will focus on how to begin to achieve these goals. Right after the Buenos Aires meeting ended, the landmark “.AFRICA” decision (Case #50 2013 001083; 7/9/15) was decided in early July by an Independent Review Panel (“IRP”) which sharply criticized the actions of ICANN and attempted to bring some level of accountability to the ICANN Board, lest it become a rogue institution accountable to no one.

Why is this important to brand owners and advertisers? Probably for the first time, ICANN’s decisions and particularly those of the Governmental Advisory Committee (“GAC”), have been substantively reviewed by an external body and found wanting. This development gives some hope to brand owners that there will be some oversight in the process if they are wronged in Round 1 of the new generic top level domain (“gTLD”) name process. How to build on this positive development is one of the key issues for ICANN leading into Round 2 which is scheduled at the moment to begin sometime in 2017.

As a reminder, the GAC reviews new gTLD applications, and if the GAC is concerned about a proposed gTLD letter string for reasons it does not need to but may disclose, it will issue a warning and then a communique (with “consensus advice”) which will need to be confirmed by the Board. This power given to GAC has been viewed by many as a form of uncontrolled governmental censorship which undermines and politicizes the whole new gTLD application process.

This growing GAC power also has been the subject of controversy in the current Geographical Names Proposal championed by GAC Vice Chair Olga Cavalli. This effort threatens to greatly expand GAC objection power using undefined criteria being debated in the GAC, as well as in discussions on how the GAC power will affect the IANA transition in 2016.

As former GAC Chair Heather Dryden testified in the .AFRICA case, GAC decisions are kept vague in order to reach a consensus. She said: “In our business, we talk about creative ambiguity. We leave things unclear so we don't have conflict.” (Paragraph 102 of the decision). Ms. Dryden also emphasized that she felt it was not necessary to provide a rationale for the GAC adverse advice: “I'm telling you the GAC did not provide a rationale.” This admission led the IRP to conclude: “Ms. Dryden also stated that the GAC made its decision without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities.” (Paragraph 104 of the decision). The IRP concluded that “both the actions and inactions of the Board with respect to the application of DCA Trust relating to the .AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN,” and remanded the application for further processing. (Paragraph 148 of the Decision).

The good news for brand owners and advertisers is there is now some positive movement and precedent to bring ICANN to account for its actions without waiting for the complicated new accountability structures being debated at the moment within ICANN to satisfy the demands of the multistakeholder community. The bad news is that the IRP process is time consuming and expensive, and less onerous procedures should be implemented in order to avoid the necessity of instituting an arbitration proceeding every time ICANN, the Board, or the GAC goes astray. Brand owners should speak up now on demanding enhanced accountability in the “New ICANN” before the Dublin meeting since this decision alone has revealed a number of underlying issues which need to be urgently corrected.

Reed Smith LLP is the ANA’s General Counsel.

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