Earlier this year, the organization that oversees the domain name system, ICANN, saw the first use of its Independent Review Process – its highest level of review for decisions that affect billions.
The IRP decided conclusively against ICANN. The issue was whether the organization had been right to deny the application for dot-xxx as a new Internet extension: the Review Panel said it was not. Earlier today, the Board announced that it would accept the Review Panel’s findings and set in place a multi-stage process of approval before the extension – intended purely for adult content – is added to the Internet’s “root”.
In doing so, the Board accepted two of the five conclusions of the Review Panel. First, that the company behind dot-xxx, ICM Registry, had met the required sponsorship criteria for its application; and second that the finding it had not meet the criteria “was not consistent with the application of neutral, objective and fair documented policy”.
Earlier it had also accepted the first conclusion that the Review Panel drew: that the Panel’s declaration was advisory and did not constitute a binding arbitral award.
But what of the other two?
These two were crucial in that they were nothing to do with the dot-xxx case but were instead about the independent review process itself i.e. deciding the method by which the organization would be held accountable in future.
ICANN’s staff had argued strenuously against both conclusions, and lost. When it came to the actual Board resolutions however, no comment was made on one, and the CEO made a specific statement against the second. The two conclusions themselves make the organization *more* accountable and so by ignoring one and arguing against the second, the Board has actively worked to reduce its accountability – presumably so that it’s not put in the position where it has no choice but to override a previous decision.
This is very worrying and unfortunately realises many people’s fears: that ICANN is paying lip service to the idea of accountability and is not actually prepared to be accountable unless it is put under significant legal pressure (ICM Registry has expressed its willingness to go to the courts if it was not dealt with fairly.)
So what are these two clauses?
First, that the “actions and decisions of the ICANN Board are not entitled to deference whether by application of the ‘business judgment’ rule or otherwise; they are to be appraised not deferentially but objectively.”
And secondly, that ICANN “operate in conformity with relevant general principles of law (such as good faith) as well as relevant principles of international law, applicable international conventions, and the law of the State of California.”
What does this mean in reality? It means that ICANN will argue at any future reviews that the panellists should assume the Board is right and then see if the evidence proves otherwise (as opposed to approaching the whole issue with an open mind), and it means that it will push for any future reviews to use a limited category of law, rather than be held to broader legal standards.
Why is this bad? Several reasons:
1. It means that anyone who uses ICANN’s IRP process in future will have to argue on points of law, rather than just the merits of the case. This means it will be longer, and more expensive and so people are less likely to use it.
2. ICANN is actively fighting against a decision that would make it more accountable i.e. it is showing disdain toward those seeking to make it more accountable, even through its own processes
3. It demonstrates that the organization has an intrinsic bias against accountability of its own decisions – something that was also demonstrated by the CEO in his opening speech in Brussels when he discounted the results of an Accountability and Transparency Review Team before they had even started work.
The fact that the issue was about dot-xxx – something that some people are uncomfortable with – is irrelevant. This process was about whether ICANN was willing to show that it does not believe itself above the law. And, despite giving begrudging approval to dot-xxx, it has demonstrated that it is not.
Update: In the closing ICANN press conference, chairman Peter Dengate Thrush said of the two missing clauses that the Board hadn’t addressed them, as it has been focussing in the applicant (i.e. .xxx) aspect of the declaration. There is also no timeline to address it, he said, since there are no people applying through IRP at the moment, and there has only been one, so not a priority.