Analysis Domain-name overseer ICANN is facing widespread criticism after it emerged victorious from an independent review into its decision over the top-level domain .hotels.
Despite winning, the ruling [PDF] has put a spotlight on the systems that are supposed to hold ICANN to account. Not only are the mechanisms inadequate, it's claimed, but it appears they are designed to back whatever decisions are made by ICANN staff and the board, regardless of merit.
This is important because ICANN wields power over the domain-name system – power that can and must be scrutinized and challenged.
A three-person panel published its decision late on Tuesday after several months of deliberation: Booking.com wanted its application for the rights to .hotels to be kept separate from someone else's application for .hoteis, but the panel has ruled against Booking.com.
However, the panel highlighted significant flaws in the process it was obliged to follow, causing others – including ICANN board members – to note that the organization's "accountability" mechanisms are so limited in scope and power that they serve little real purpose.
"An appeal or review process that is limited to challenging procedural and process errors, and that leaves no recourse to challenge the merits of a decision, or the merits of the policies and procedures used to arrive at that decision, is so narrowly cast as to be worthless in the vast majority of cases," argued lawyer Greg Shatan on an official mailing list that is looking into how to improve ICANN's accountability.
Other posters agreed, including a number of current ICANN board members. "We need to establish a dispute resolution system that values each case based on its individual parameters - keeping international law parameters and DNS specific legal parameters into consideration," argued Erika Mann, who suggested ICANN created a new process based on the World Trade Organization's dispute settlement procedure.
Another board member, Bruce Tonkin, noted: "The panel came to similar conclusions as the Board Governance Committee and the Board. The current reconsideration process tends to focus on whether the ICANN policies, and with respect to new gTLDs whether the processes in the guidebook were followed. There is not currently an appeals process that allows re-looking at the case based on the merits."
What happened and why
Booking.com applied for the generic top-level domain .hotels three years ago, but was frustrated when, in February 2013, it was connected to an application for .hoteis – the Portuguese word for hotels. Under ICANN's rules, the two had been found to be "similar," and so only one would be allowed to go forward.
Booking.com felt the decision reached was poor – because it threatened the future of its dot-word bid – and so it approached ICANN, and used its processes to ask for a review of the decision.
What happened next was Kafkaesque. It formally asked ICANN for information on how the decision was reached so it could argue its case, and at the same time it put in a "request for reconsideration" so that a subgroup of the ICANN board would take a look at its concerns.
However, ICANN refused to provide any information on the case, claiming both confidentiality and the fact that it didn't posses the relevant documents. Two months later, it published only a broad description for how the "string similarity" process worked.
Booking.com pointed out that reply gave it no insight into the rationale behind the decision to clump 'hotels' with 'hoteis' and argued that ICANN's accountability and transparency rules obliged it to provide the information. It also argued that it was in the public interest to let people know how these decisions were being made.
Six months later, and after its request had already been rejected, ICANN published a letter from the independent group that carried out the similarity review – a letter that described the process in greater but still only in general detail, again providing Booking.com with no specific information on its case.
Due to the fact that Booking.com was not able to find out how the decision had been made, it wasn't in a position to identify where the process may have fallen down.
As a result the "Reconsideration Committee" - which would more accurately be described as the "Procedural Review Committee" because it doesn't actually reconsider cases but simply checks where a process has been correctly followed - dismissed its request because it had "not stated proper grounds for reconsideration."
It was at this point, however, that a number of ICANN board members stepped in. The reconsideration committee's recommendation had to be formally approved by another subgroup of the board focused on the new gTLD process.
At a meeting in September 2013, four board members abstained from the vote, with five voting in favor.
George Sadowsky abstained, and said that the end result that was "contrary to ICANN and the user's best interests." Olga Madruga-Forti abstained, and said there was "not sufficient rationale provided for why the string similarity review panel made its determination."
The board members were repeatedly informed that because the process had been followed, they had no choice but to deny the reconsideration request.
And so Ray Plzak also abstained from the vote, saying that while the process was followed "it needs to be reviewed to potentially add a mechanism that would allow persons who don't agree with the outcome to make an objection."
One board member that voted yes, Bill Graham, noted "a considerable level of discomfort and dissatisfaction with the process".
Road to nowhere
But the request was denied, and so Booking.com went on to a third ICANN accountability mechanism: the "Cooperative Engagement Process" (CEP). That process had been introduced only a few months earlier as a precondition to ICANN's fourth and last possible accountability mechanism: the Independent Review Process (IRP).
The CEP did not result in any agreement, so Booking.com then moved onto the IRP – a process that cost $163,000 in panelist fees alone.
The IRP Panel repeatedly highlighted in its 50-page report [PDF] that it was heavily constrained in what it was allowed to rule on, however.
"The very limited nature of IRP proceedings is such that any IRP applicant will face significant obstacles in establishing that the ICANN Board acted inconsistently with ICANN's Articles of Incorporation or Bylaws. In fact, Booking.com acknowledges those obstacles, albeit inconsistently and at times indirectly," the panel wrote, later noting that "Booking.com has failed to overcome the very obstacles that it recognizes exist."
It later notes:
We can - and we do - acknowledge certain legitimate concerns regarding the string similarity review process raised by Booking.com, discussed above, which are evidently shared by a number of prominent and experienced ICANN NGPC members. And we can, and do, encourage ICANN to consider whether it wishes to address these issues in an appropriate manner and forum.
While acknowledging it is not able to do anything about the decision due to the process' constraints, the panel shows its frustration by using its discretion to order the cost of the process be split between ICANN and Booking.com:
The Panel considers that the nature and significance of the issues raised by Booking.com, and the contribution to the "public interest" of its submissions, are such that it is appropriate and reasonable that the IRP costs be shared equally by the parties. We consider that the extraordinary circumstances of case - in which some members of ICANN's New gTLD Program Committee have publicly declared that, in their view, the rules on the basis of which Booking.com's claims fail should be reconsidered by ICANN - warrants such a holding.
It is worth noting that the IRP highlighted the fact that it was repeatedly told by ICANN that it was limited in what it was allowed to decide on.
Throughout its submissions ICANN repeatedly stresses what it says is the very limited authority enjoyed by IRP panels.
It goes on to reject ICANN's insistence that the panel adopt a "deferential" appraisal of the board's actions rather than an "objective" one. Regardless, it notes that "our role is to assess whether the Board's action was consistent with applicable rules found in the Articles, Bylaws and Guidebook," and not to substitute its own judgment for that of the board's.
The review – one of eight that are going through ICANN's processes – highlights what many in the ICANN community already knew: that the "accountability" mechanisms introduced by ICANN provide little or no actual accountability.
It is for this reason that there is an entire process looking at introducing new and improve accountability processes before ICANN is handed even more control over the global DNS system when the IANA contract is moved away from the US government later this year.
But for an organization that for a decade has resisted all efforts to introduce real accountability, old habits died hard.
Last month, ICANN's lawyers asserted that many of the proposed new accountability systems being discussed were illegal under California law.
The internet community was expecting that position, and had already set in motion a plan to have an independent legal review of their proposals.
However, in a sign that ICANN is determined to keep control of things, not only will ICANN be paying for the independent legal team but its lawyers sit on the closed committee that is deciding who that legal team will be. The committee has so far refused to say what role ICANN's legal team plays or why.
And while some ICANN board members have used the decision to highlight their concerns with the current systems, others who have consistently voted in favor of the current processes and their outcomes have also appeared on the mailing list questioning suggested changes and arguing for "improvements" to the current systems rather than a wholesale restructuring. ®