Hall of mirrors
The two-year review also highlighted more than the fact that ICANN's BGC never carried out any investigation and that ICANN's legal team was dictating the reports of its independent evaluators. It also revealed the elaborate legal web that had been devised to give ICANN's lawyers full control over every application while shielding their role from view.
Amazingly, ICANN's general counsel decided that neither ICANN staff nor the evaluators were subject to the organization's bylaws – only the board. That enabled them to withhold information that would otherwise be required under its transparency rules.
When the panel majority disputed this interpretation, ICANN's lawyers claimed first that its articles of incorporation should take priority over its bylaws, and then claimed that there was a "tension" within ICANN's bylaws between being open and transparent and other rules that allowed ICANN to "exercise its judgment."
Meanwhile, the EIU was prevented from sharing any information under the strict contract terms it had signed up to, drawn up by ICANN's lawyers. ICANN filtered all its communications to the board through the general counsel's office in order to claim legal privilege over it all.
"ICANN's general counsel should lose his job for this," Jolles says bluntly, referring to ICANN's long-time lawyer John Jeffrey. "The advice that he gives, everything was processed through him. It's shocking."
Jolles also wants to see the six board members that sit on the BGC who did nothing to investigate his complaints resign. "They didn't do their job. And they lied," Jolles complains. "And when my applications appear in front of the Board, I want them to recuse themselves."
The independent review panel agreed with Jolles and he won his appeal. With ICANN forced to pay $465,000 in fees, the question turns to: what now?
When ICANN lost a similar appeal against .africa, it forced the applicant to be re-evaluated all over again – a decision that sparked a lawsuit against it for running a "sham" process. That lawsuit is still ongoing.
Jolles says that there's "no way" ICANN can send his applications back to the EIU after this IRP judgment. "I'm hoping the Board will make it right. The panel said it messed up, now deal with it."
Referring to the impending handover of the IANA functions to ICANN from the US government, Jolles notes that "this is a critical time for ICANN. Maybe I'm naïve, but I hope they do the right thing."
The right thing, in Jolles mind, is to move his applications forward to contracting rather than drag them out any longer. For a man who has spent four years getting this far when more than 1,000 other internet extensions are already live, he is not feeling particularly generous or patient. He's sent a letter to the ICANN board asking it to provide him with a timeline as soon as possible.
"I prevailed," he notes. "If they try to send me back to evaluation, I will go to court." ®