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.)