In a scathing letter from Chuck Gomes, Vice President of Verisign to Fadi Cheladeto CEO of ICANN Mr. Gomes lists 6 “examples of ICANN’s Unaccountable Actions as Requested by ICANN CEO Fadi Chelade”
The letter itself fills in the back story as it is an outgrowth of a discussion that the two men had during “the GNSO discussion at the recent ICANN meeting in Durban. ”
“In that exchange, I indicated that ICANN was not holding itself accountable and that ICANN was elevating risk- avoidance over true accountability.”
“In response, you asked me to send you a list of items that I felt displayed this behavior by ICANN.”
“This letter contains a short list of such items that I have prepared in response to your request.”
“By no means is this list intended to be exhaustive of the examples that could be identified to prove my point.”
“Rather, this list is intended to be illustrative of the kind of unaccountable actions we have seen from ICANN in the recent past.”
The letter then goes on to list 6 “Examples of ICANN’s Unaccountable Actions as Requested by ICANN CEO Fadi Chelade”
“1. One prominent example of ICANN’s unwillingness to be held accountable is with its agreements with registries and registrars.
Whether it is a desire to minimize the number of resources devoted to contractual compliance, reduce the cycles to achieve policy completion or to increase the amount of control that ICANN has in this multi-stakeholder model, these agreements from the start have been slanted to ICANN’s favor and burdensome for applicants, registrars, and registries.
All risks have been flowed down to registries and registrars with requirements to indemnify ICANN while removing any chance for the contracted parties to take action against ICANN, if warranted. This was compounded further in 2013 when the ICANN staff, in a surprise move, decided to impose the unilateral right to amend clauses in the new gTLD registry agreements. To this point of accountability, Verisign said at the time in a public comment the following:
In the current framework described in Section 7.6, ICANN cannot be held accountable because there is no mechanism to do so.
ICANN refuses to allow any dispute about the “public interest” to be settled by a court of competent jurisdiction.
Instead, ICANN is requiring arbitration lasting exactly one day.
This response alone is telling: How could judicial review of a regulatory authority’S unilateral actions possibly be against the “public interest”? It is as if the community is being asked by ICANN to “wait and see” or to simply “trust us.” Ifjudicial review does not fall within the “public interest” standard, it is reasonable to question ICANN’s perspective on, and analysis behind, what it may find to be in the “public interest.” Without defined criteria, accountability or consistency, how can the community that ICANN was created to serve rely on ICANN to reasonably determine what is in the “public interest?”
Since the Paris meeting in June of 2008, ICANN has extolled the benefits of new gTLDs to potential applicants, including brand owners.
It was not until after applications were submitted in April 2012, and after hundreds of initial string evaluations had been conducted, that in August 2013 ICANN warned the world about possible SSR impacts that the SSAC had been communicating to ICANN and the ICANN Board of Directors through SSAC reports and advisories over the last four years. We view ICANN’s refusal to address the well documented SSR issues as indicative of its lack of accountability. No accountable organization would ignore the advice that ICANN has ignored for four years. If my Board of Directors did so in a similar fashion, the Board would be voted out, or sued, or both. Did ICANN consider the consequences of prioritizing the rollout of new gTLDs over security and stability for the betterment of the organization?
ICANN’s inattention to fundamental SSR issues is only one aspect of its accountability problem.
We saw (and have now commented upon) ICANN’s proposal to mitigate the risks of name collisions and frankly, we are shocked at ICANN’s refusal to accept responsibility for the risks.
Under ICANN’s proposal, all of the duties to preserve the stability and security of the DNS, as well as all of the risks and costs, are transferred by ICANN to applicants.
One such risk is very clearly that lCANN’s proposal would almost certainly threaten the reputation of any brand applicant.
Did ICANN consider that it is possible, if not likely, that reputational damage to a brand could result from that brand being required to warn users of harm caused by what is essentially a marketing campaign?
Applicants would have to tell the global Internet services, businesses, and brand-loyal consumer communities that delegation of their brand TLD could break their networks and possibly result in the loss of confidential information and possibly enable cyber-attacks and other nefarious behavior.
Does ICANN recognize, and will it be accountable for, prioritization of the new gTLD rollout over security and stability in a way that stands to hurt brands while enhancing the position of ICANN the organization over the community once again?
To place this burden on applicants — with no community discussion, and no sensitivity to the potential reputational, legal, and other serious risks — is inconsiderate at best and most likely a calculated move to protect ICANN. This was precisely my point to you in Durban as reflected in the transcript above.
A third example is related to lCANN’s lack of accountability to its own multi-stakeholder processes.
A clear recommendation from the Board-approved New gTLD PDP was that new strings should not be confusingly similar to existing gTLD, ccTLD, or other applied- for strings.
In the implementation process of the new gTLD recommendations, the GNSO Council recommended that an exception process be designed to avoid false positives, i.e., cases where there might be visual string confusion but no actual user confusion.
However, with vague rationale and minimal communication, ICANN staff refused to follow this advice.
Speci11cally, in dealing with the issue of plural and singular strings, lCANN took a very liberal position that they are not confusingly similar and appear to have pushed this decision to the objection panels so as to not have to be accountable for terminating some future strings; it is quite likely that ICANN would not have had to do so if it had dealt with the exception procedure as recommended by its gTLD policy making body.
ICANN has created the untenable situation today, where some plurals have been accepted and others have been rejected by these review teams.
The question now is whether ICANN will accept responsibility and be held accountable for the situation created by its decisions.
Another example is ICANN staff’s recent tendency to issue top-down edicts that do not include community discussion while at the same time touting the virtues of the global multi-stakeholder model of Internet governance.
It is a gross inconsistency to make such claims while operating in a top-down manner that does an end-run around the very multi- stakeholder processes from which it was founded.
Change is fine, but change must arise from within the established governance model and not be driven by self-interested parties that are out of step with the consensus views.
Reversing or ignoring decisions that arise within the multi-stakeholder processes by cherry-picking favorable public comments cannot be construed as a true implementation of the multi-stakeholder model. ICANN’s consideration and analysis of public comments too often reflects its own view and often provides mere lip service to views that are inconsistent with ICANN’s institutional preferences. ICANN is charged with resisting the tendency to merely act in its own self- interest. The public comment process is an important part of the multi-stakeholder process as it allows for discussion and suggestions from those not participating within the multiple constituencies and provides a last check to ensure that the process has gotten it right. A recent example of this relates to the previously mentioned process for making end-users aware of security issues pertaining to name collisions in the DNS. A hurried staff solution void of understanding of the unintended consequences and, where the proposed solution is so transparently in ICANN’s own best interest, is not consistent with the conduct of an accountable organization and is the opposite of a multi-stakeholder or consensus-driven process.
One of the key advantages of the multi-stakeholder model is to obtain broad input from representative stakeholders before making recommendations so that the public comments can be solicited on reasonably complete proposals. ICANN needs to be accountable to itself and to the community to uphold the multi-stakeholder process even when it is inconvenient for it to do so.
5. The establishment of the five strategic panels and the creation of “ICANN LABS” is another recent example of ICANN’s lack of accountability to the community and to the multi-stakeholder model.
We understand that $3.5 million has been allocated in the FY14 budget for the five strategic panels; I do not know how much is allocated for the Labs project. To this point, I am not aware of any discussion with the broader ICANN community on either of these efforts even though they will use significant portions of community-provided funds and could have a significant impact on ICANN future decisions and direction.
It is certainly possible that these uncoordinated initiatives might have a positive impact but I am confident of one thing: The chances of them having a positive impact would have been increased if ICANN sought community input before initiating them. Both efforts are perfect examples of ICANN’s recent propensity to operate in an unaccountable top-down approach instead of ICANN’s traditional and mandated bottom-up fashion.
6. My final example relates to the posting of ICANN staff’s proposed Rights Protection Mechanism (RPM) requirements that took place on August 6.
As mentioned above, ICANN staff simply ignored input from applicants who had been working with them for weeks and ICANN itself determined what the requirements should be.
The group that had been initially working on this with ICANN suggested that their proposed revisions be integrated into the ICANN staff proposed requirements to ensure a fairer consideration of them. You will recall that a similar action happened with the 2013 Registrar Accreditation Agreement (RAA) and you promised that it would not happen again.
Nevertheless, once again, the ICANN staff posted its own version of the proposed revisions excluding key elements.
In my opinion that was, at best, inconsiderate of the multi-stakeholder model and of the working teams; in addition this action calls into question the motivation of the ICANN staff involved and the motives of its leadership. Those of us who had worked for weeks on this at least hoped that there would be an opportunity to obtain community input on our suggestions but only a small subset of them were included, and even those that were included were colored by ICANN staff commentary.
Based on these recent actions, it appears as though the ICANN staff is taking advantage of the moti vation by many to get their TLDs approved quickly and therefore is acting in an unaccountable manner inconsistent with the multi-stakeholder model.
If the examples of ICANN’s unaccountable conduct noted above were minor or were infrequent, I would not be as concerned.
Rather, the examples seem to represent the new standard operating policy for ICANN that, if anything, is getting more acute.
I fully understand the ICANN Board’s fiduciary responsibility to protect the corporation but when this desire prevents ICANN from acting in the public interest, which is a paramount Board responsibility, then something is seriously askew.
There needs to be balance when interests collide and there is very little if any balance now.”
Brad Mugford says
“I fully understand the ICANN Board’s fiduciary responsibility to protect the corporation but when this desire prevents ICANN from acting in the public interest, which is a paramount Board responsibility, then something is seriously askew. ”
The content of the letter seems pretty accurate and points out multiple issues with ICANN that are going to be hard for them to defend. At this point it is clear that ICANN has made multiple decisions that have put their financial interest ahead of public interest and are not representative of the “Multi-Stakeholder” model.
Brad
Rick Schwartz says
a few Things come to mind
Clusterf*ck of a magnitude few can fathom.
This letter is designed on making sure WHEN the entire DNS system CRASHES, that ICANN is held accountable and not them.
It is obvous that ICANN does not act in the public interest. They act on self interests and don’t care about the consequences because like politicians, they will be long gone when it all comes to a halt and the finger pointing begins.
George Kirikos says
“The enemy of my enemy is my friend……” ??!?!?!?!?!? But, what if they’re *both* my enemies? *sits and eats popcorn*
It’s nice to see Chuck point out how ICANN staff cherry pick public comments, and are acting in a top-down manner, among other criticisms. However, VeriSign itself is subject to great criticism as well, for their anti-competitive stranglehold over the .com contract. That contract should be put out to regular tenders, which would bring the registry cost to below $2/yr per domain. A price freeze at current high levels was still a gift for VeriSign, at the expense of registrants/consumers.
Once this new gTLD experiment fails (if it ever launches; perhaps the DOC/NTIA will step in), hungry and bleeding registry operators (and now it will include “big boys” like Google and Amazon) will hopefully demand that they be allowed to bid on the .com contract.
Domo Sapiens says
by GK:
“Once this new gTLD experiment fails… ”
notice GK didn’t say “If this new…”
😉
gpm group says
There was a similar pattern when Chuck was leading the GNSO and was in an excellent position to make a difference by speaking out.
Some of the poor decisions from that time, which were heavily skewed by self interest, through the manipulation of the design-by-committee approach didn’t really get to grips with underlying problems.
We are now simply seeing a top-down approach to try and paper over the more obvious deficiencies as they try and rush out the door a fundamentally flawed proposal.
With respect to comment periods:
When ICANN and its committees repeatedly refuse to listen to the brightest minds in the world, because those commentators are telling ICANN that it is not moving in the most sensible direction, those people just stop contributing their time for free and then we are left with too many contributions from corporate shills.
A big improvement to each ICANN comment period would be to separate out the ex parte comments to their own area.
@ George
What’s needed are careful policies to underpin and promote the vertically separated marketplace.
You know – the incredibly successful existing one which ICANN in an extremely short term and short-sighted, top down mandated decision decide to overturn in the name of “competition”, because a handful of powerful domain industry players lobbied against the status quo preferring instead…. surprise, surprise…. siloed positions.
dotmusic says
Verisign is making some very strong points on ICANN’s accountability.
ICANN is far from accountable and I am one to say that Fadi’s leadership has been a disaster and everything the ICANN Board does is not to get sued and have 3rd-parties take accountability of ICANN processes.
We sent a letter to ICANN requesting that material changes – such as policy changes made after Community Objection deadlines – be disregarded by Community Objection Panelists (http://www.thedomains.com/2013/07/18/constantine-roussos-says-icc-must-disregard-any-new-policieschanges-gac-advice-made-after-objection-deadline/). ICANN’s response was complete disregard and said it was up to the Panelist not ICANN (http://www.icann.org/en/news/correspondence/willett-to-roussos-14aug13-en.pdf).
As you may all well know the costs of filing a Community Objection is ultra high and uncalled for (http://www.thedomains.com/2013/07/18/over-e1m-deposit-required-to-file-a-new-gtld-objection-with-the-icc-partridge-ip-law-tells-icann/). We filed 11 of these not knowing the final costs. Putting this into perspective and seeing how the LROs and String Similarity Panels were conducted, these have been a complete catastrophe. The same applies to not making a decision on closed registries for semantic terms such as .MUSIC, .SONG and .TUNES that Amazon wants to exclusively control.
Bottom line is that ICANN staff and its leadership and Board have done nothing to instill confidence in the processes and have relied on 3rd parties to be making critical decisions.
If I were ICANN CEO and Board I would be swift in my decisions:
1) No singulars and plurals. All would be placed in the same contention set
2) All synonyms would be placed in the same contention set
3) No exclusive access (monopolies) on closed semantic strings
4) No Objection processes where the Panelist has to predict the future (likelihood of harm) and make speculations.
Context: Remember URDP cases are based on facts and the act of REAL “bad faith” which is evidenced, LROs and Community Objections are based on speculations. Since the gTLD has not yet been established how can a Panelist foresee the future? Lawyers (the Panelists) rarely make decisions based on speculations? While it is obvious that closed/exclusionary policies create material or open strings for sensitive strings create material harm, one has to consider WHY ICANN has selected this method. It is quite obvious. The burden of proof goes against the Objector and the objected-to Applicant has a clear advantage. This leads to auctions. ICANN does make more money in auctions and also makes more money with open strings. Follow the money.
5) An investigation how Google, Donuts, Demand Media and others have passed Background Checks and to fix the “loopholes” and clean shop. I think there is enough evidence of piracy and privacy violations/fines that Google should have been disqualified. Follow the money. Oh yea, why is Vint Cerf of Google have a leading role in ICANN’s 5-Year Strategic Plan?
6) Set limits on how many gTLDs one single parent corporation/entity can run and focus on diversity not profit maximiation (ICANN is a non-for profit) Reinvestigate why ICANN has denied input from the ICANN community in the last few years pertaining to the Community Priority Evaluation threshold being 14 and not something lower. This was far from bottom-up. Auctions and having open applicants win (more registration fees) was the goal. Follow the money. Problem with Community Applicants is that a restricted application is worth less than an open one. They have zero chance winning an auction because a prudent business man would not overbid more than what the gTLD is worth. Needless to say open applicants can bid more in an auction because their application is worth more.
As you may all well know, I have been in this new gTLD process for more than half a decade and have been an avid ICANN supporter. Something is truly going wrong here. It always starts with leadership. ICANN staff and the Board have disappointed me greatly with their “inactions.” They were elected to make difficult decisions in the Global Public Interest. But companies such as Google do have a lot of power and the Board merely wants to do the least possible to not be sued.
I am sure you all know what my prediction. I guess we have to see how the Community Objections and CPE go before any action is taken. I do expect the Community Objection results to be inconsistent as well. I know Amazon has a few cases against them on “exclusive monopoly access.” If these are all inconsistent and allow Amazon to run closed strings for sensitive, semantic keywords or a known copyright/privacy violator (Google) not get knocked out in the Community Objection stage, kiss the new gTLD Program goodbye. Am I wrong?
Constantine Roussos
.MUSIC
Live Advertising says
Funny!