The content of the communications surrounding the .africa bids – including many more that involved ICANN staff, its board, contracted evaluators, and advisory committees such as the GAC – was provided to the independent review panel for its investigation.
As part of the release, ICANN and DotConnectAfrica signed a confidentiality agreement, and as a result of that agreement the contents used in the two parties' arguments filed with the review panel were redacted before they were published publicly.
However, ICANN took a broad reading of that agreement and redacted not just the contents of the communications, but any mention that they existed at all when it came to staff's interventions in the process.
ICANN's lawyers also redacted any synopses of those materials, as well as any arguments made on the basis of the materials. Finally, ICANN's lawyers decided to redact the final report of the independent review panel itself to remove all mention of its staff's repeated interventions.
In effect, ICANN attempted to whitewash entirely its role in the controversy by censoring every mention of its actions.
Following our story on what was included in the redacted final report, ICANN acknowledged it was wrong to redact the final report of its final accountability mechanism.
Asked about the redactions, ICANN board member Bruce Tonkin said on a public mailing list that discusses ICANN's accountability that he had not been informed that ICANN staff had made the redactions.
He wrote: "I had assumed that the panel had redacted information that was provided to them under confidentiality provisions," adding, "I have since learnt it was redacted as part of the staff process for posting. I am expecting the staff to provide a public explanation shortly as to the process that is being followed here."
The subsequent public explanation from ICANN senior counsel Samantha Eisner strongly suggested that DotConnectAfrica had agreed, or at least not objected, to the redactions of the final report:
As is a normal part of ICANN’s Independent Review Process (IRP), ICANN and DotConnectAfrica Trust (DCA) entered into a confidentiality agreement during the IRP. The IRP Panel approved and agreed to that confidentiality agreement. Pursuant to the agreement, the parties exchanged information that was to be maintained as confidential for purposes of the IRP... ICANN is complying with the terms of that confidentiality agreement.
In reality, however, DotConnectAfrica explicitly opposed the redactions proposed by ICANN staff to the review panel's final report. ICANN posted the redacted version despite those objections, and despite having asked just days earlier that neither party publish the final report before both sides had reached agreement.
On Tuesday, 7 July, ICANN's lawyer Jeff LeVee told DCA's legal team: "In anticipation of receiving the Panel's declaration this week, I wanted to let you know that ICANN's plan is to try to review and redact (as appropriate) the declaration as quickly as we can so that ICANN can post it. We would be happy to send you a draft of our redactions if you want to review/comment on them. Please do not post the declaration until we have reached a consensus on the redactions."
DCA's lawyer responded: "Thank you, we would like to review and comment on ICANN’s proposed redactions prior the declaration being posted." To which LeVee responded: "Ok."
The day after the report was finalized, ICANN's lawyers sent a redacted version for DCA lawyers' approval, giving them just two hours to review it before posting.
When DCA's lawyers said that would be impossible, ICANN's lawyers offered an additional 90 minutes, and said they would post the report regardless. In response, DCA's lawyer made it plain they disagreed with the changes:
Unfortunately, we are not going to be able to respond by the deadline you proposed. If ICANN posts the declaration, it will be without DCA Trust's consent. DCA Trust reserves its right to post the declaration without all of the redactions proposed by ICANN.
ICANN responded by sending a copy of its redacted version announcing it would post it shortly on its website and insisting that DCA not publish any other version of the final report without its approval.
At that stage, DCA was still reliant on the ICANN board to act on the review panel's report, and even if it accepted the key recommendation that the DCA's .africa bid be reconsidered, DCA would still be reliant on ICANN to carry out its evaluation.
Economical with the actualité
The redacted version of the review panel's report was posted on ICANN's website around 1700 PT on Friday, 10 July. A press release was published shortly after. Five days later, on 15 July at 0700 PT, we published our story outlining what was contained in the unredacted version of the panel's report.
Six hours after our story hit the web, ICANN's lawyers sent a two-paragraph letter to DCA saying it wished to review the redactions it has made to the final report. "ICANN now wishes to un-redact these materials and requests your agreement to do so, which ICANN will do so long as any other affected parties also agree," it read.
The next day, ICANN's Eisner seemed to hint that the redaction-review process had started much earlier:
ICANN's counsel immediately began diligently reviewing all ICANN materials exchanged in the proceeding to ensure that we publicly share as much information as we can quickly as possible. ICANN will post a revised Declaration and transcript reflecting the removed redactions. We have requested that information previously marked as confidential from DCA and other parties who are impacted be released publicly to complete the public record. Those parties impacted are not obligated to make those documents public. At the conclusion of that process, ICANN will again publish a further revised Declaration and transcript.
In a 3,000-word announcement containing five resolutions following an emergency meeting of the ICANN board over the .africa panel decision, the board made no mention of its staff's actions either in redacting the information or its involvement in the .africa evaluations.
To date, ICANN's board has not made a statement about the appropriateness of its actions or those of its staff. Nor has it suggested an investigation or other review into the activities highlighted in the review panel's final report. ®