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Amazon may still get .amazon despite govt opposition – thanks to a classic ICANN cockup

DNS king breaks own bylaws yet again

By Kieren McCarthy, 19 Jul 2017

Special report Amazon may still get hold of its namesake top-level domain .amazon after an independent review panel lambasted the decision by DNS overseer ICANN to deny its application.

The panel found – for a third time – that ICANN's board had failed to do its job and had broken its own bylaws by accepting a recommendation from its Governmental Advisory Committee (GAC) to block the name without asking for a proper explanation.

The organization's New gTLD Program Committee (NGPC) – a subset of the board – also failed to let Amazon argue its case, and refused to provide its own rationale for the decision, the review panel found.

"The board, acting through the NGPC, failed in its duty to explain and give adequate reasons for its decision, beyond merely citing to its reliance on the GAC advice and the presumption, albeit a strong presumption, that it was based on valid and legitimate public policy concerns," the three-person panel of ex-judges decided [PDF].

It added: "An explanation of the NGPC's reasons for denying the applications was particularly important in this matter, given the absence of any rationale or reasons provided by the GAC for its advice and the fact that the record before the NGPC failed to substantially support the existence of a well-founded and merits-based public policy reason for denying Amazon's applications."

Moreover, the panel noted that it was "unable to discern a well-founded public policy reason" for turning the application down and revealed that ICANN's New gTLD Program Committee had not even discussed, let alone relied on, the conclusions of an independent expert who had been hired to dig into the issue.

Expert, schmexpert

Professor Luca G Radicati di Brozolo was asked by the independent evaluators that ICANN paid to look into objections to specific applications to review .amazon, and concluded that the people who live in the Amazon basin, largely in Brazil, would not be negatively impacted by the creation of .amazon or the fact it was run by a US retail company.

Brozolo also noted that no one else had applied for the name, and that if those who do live in the geographic region defined by the Amazon river felt the need to have their own piece of the internet's infrastructure at a later date, there were plenty of other names – like .amazonia – that would be just as effective.

In effect, Professor Brozolo dismissed all the reasons that had been put forward for stopping the name, leaving Amazon to believe its application would move forward.

But the ICANN board simply ignored its own expert report, the independent panel found, and decided to uphold the objection of its governmental advisory committee while failing to give an explanation as to why.

Not the first time

Unfortunately, this is just the latest example of ICANN's notoriously poor accountability and its tendency to do what it thinks is in its own best interests, regardless of any rules, procedures and bylaws.

It is also the third time that ICANN has been called out on its propensity for doing whatever the world's governments ask of it. In this case, it was the Brazilian and Peruvian governments that objected to the registration of the .amazon name, and the rest of the world's governments decided not to get in the way.

Amazon saw the timing of the rejection as suspicious, however. Brazil had previously raised no objections to the bid but that suddenly changed in July, 2013 at ICANN's meeting in Durban when it came out in strong opposition.

Coincidentally, just two weeks earlier, it was revealed in the Snowden documents that the US government had spied extensively on Brazilian citizens and on the Brazilian president Dilma Rousseff herself, tapping her phone. She was furious and shortly after the Durban meeting used her speech at the United Nations to attack the US government and its spying efforts.

Amazon, as a high-profile US company, figured it had become a pawn in a larger political game but despite its efforts to smooth things over with the Brazilian and Peruvian government representatives, the reps refused to budge. The company then went through multiple ICANN appeal processes (which have repeatedly been shown to be worthless) for two years, before finally writing to the independent review panel in March, 2016.

The issue even reached the US Congress, with a letter from the Congressional Trademark Caucus sent to ICANN arguing that the ICANN board "succumbed to political pressure from several governments" – a conclusion that the independent review appears to agree with.

Let's talk about sex

The first time ICANN was called out for distorting its own processes to reach a pre-decided conclusion was back in 2010 when the first Independent Review Panel (IRP) slammed the organization for blocking the .xxx top-level domain following pressure from the US government.

A decision made by the ICANN board three years prior was "not consistent with the application of neutral, objective, and fair documented policy," the panel concluded. The details were damning and showed a determined effort by staff and senior members of the board to stymie the application using the organization's byzantine processes to obscure their activity.

But following the IRP report, the application was eventually approved and was launched a year later.

Having learned nothing, ICANN was slammed by the IRP again in 2015 for blocking one of two applications for .africa; again following government pressure.

In that case, ICANN's staff was shown to have actively worked against the application by DotConnectAfrica (DCA) in preference to a second bid supported by the African Union Commission (AUC) – the African equivalent of the European Commission.

ICANN broke its own bylaws and acted in a way that was "fundamentally inconsistent" with its role as the world's DNS overseer, the panel concluded. It also slammed the organization for repeatedly blocking efforts to have its officials questioned on the case: actions that the panel said "deprives the accountability and review process set out in the bylaws of any meaning."

ICANN then generated further controversy when it attempted to hide staff complicity by blacking out large parts of the independent report, and then claimed – falsely – that the redactions had been agreed to by both parties.

The Register got hold of the unredacted version which showed that staff had not only directed the "independent" evaluators to make decisions that were prejudicial to the DCA bid, but that its head of operations had drafted a letter that carefully met all of ICANN's requirements for approval, sent it to AUC, received it back signed, and then used it to green-light their application.

Having been ordered to re-evaluate the DCA bid for .africa, ICANN rejected it a second time in a process that DCA called a "sham." It sued and a judge later agreed that ICANN "intended to deny DCA's application based on pretext." The lawsuit is still ongoing.

Not done yet

In addition to these, another case decided by the IRP last year concluded that both ICANN's staff and board had again wrongly interfered in the process in order to deny an application.

In that case – concerning applications for .inc, .llp and .llc – ICANN's staff added language about "research" to an independent evaluator's report. That "research" concluded that the applications should not move forward, but when the IRP dug into the issue it found no indication that any such work had ever been carried out.

The independent panel – which is prevented from making determinations about staff conduct – concluded that ICANN's board had broken its own bylaws when it then failed to consider a complaint accusing ICANN's staff of interfering in the process.

ICANN's Board Governance Committee (BGC) claimed that it had in fact carried out an investigation – but that was shot down as "simply not credible" by the IRP when it reviewed the relevant documents. Instead, the IRP concluded that ICANN's staff were "intimately involved" in the drafting of the evaluator report and that the evaluator was effectively "under supervision."

The failure of the BGC to consider claims that ICANN's staff were improperly influencing the process raised "serious questions in the minds of the majority of the panel members about the BGC's compliance with mandatory obligations," the report concluded.

Which leads us back to the current .amazon case where ICANN's staff and board have, yet again, been found guilty of:

  • Distorting their own processes to arrive at a pre-decided conclusion.
  • Failing to give the aggrieved party an opportunity to make their case.
  • Ignoring or overriding independent experts.
  • Placing multiple procedural barriers in front of the company complaining about interference.
  • Failing to adequately explain their actions.
  • Breaking their own bylaws to get to that point.

As with all the other times the IRP has taken ICANN to task, the report's conclusions will now go to the ICANN board to consider. (ICANN will also have to pick up the $314,590.96 cost of the review.)

Success?

Despite the clear findings in this case, it is far from certain that Amazon will eventually get hold of its namesake top-level domain.

The .xxx domain was finally approved, but remains the only time in which ICANN hasn't doubled-down and found another way to reject an application.

The .africa case is still in legal limbo four years later. And the .inc, .llp and .llc case remains stuck in an internal investigation that has been going on for nearly a year.

That investigation is being overseen by the very people implicated as responsible for breaking the bylaws in the first place: ICANN general counsel John Jeffrey and Board Governance Committee chairman Chris Disspain.

When it comes to the .amazon decision, ICANN is caught between a rock and a hard place: the world's governments on one hand and a rich and powerful American corporation on the other. As we noted back in 2015: "Typically in these situations, ICANN makes the wrong decision."

And so it has done again. But the real, deeper issue is not what the right decision is – because there is no truly correct answer – but that ICANN has again made a decision based on its own internal, secret decision-making and then distorted its processes, ignored its rules and broken its own bylaws to get there.

As with the .africa case, if ICANN had simply followed its own procedures it would likely have arrived at the exact same point and the same decision, but with a body of work that would hold up to independent scrutiny.

As it is, the ongoing immaturity of the organization – coupled with an endemic lack of accountability and the petty, small-minded attitude held by senior executives and lead board members – has meant that the organization has, yet again, thoroughly embarrassed itself. ®

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