Internet overseer ICANN has insisted it has the authority to maintain a six-year online Muslim ban, despite being told otherwise by its own independent oversight panel.
In a letter sent to the Turkish organization that applied for the rights to operate the .islam and .halal generic top-level domain names back in 2012, ICANN's lawyers claimed that, despite ICANN being formally told it had repeatedly broke its own bylaws by refusing to green-light the gTLDs, it is not under any obligation to actually do anything.
"The [ICANN] board maintains the discretion to make a decision on whether the applications should proceed," the letter argued without giving any indication of when or how it will end the six-year self-imposed ban on the dot-words.
US-based ICANN placed the applications for .islam and .halal "on hold" in 2014 after a number of Middle Eastern governments objected to the top-level domains being added to the internet. However, those objections were subsequently dismissed by a number of independent experts that ICANN hired to look into the issue. The DNS overlord then claimed it was under no obligation to follow its own experts' advice.
The organization was fiercely criticized [PDF] for creating an "on hold" status out of thin air – effectively creating a new policy to suit its own political ends, ignoring years of policymaking.
ICANN was also criticized for holding a series of secret meetings with government representatives over the issue, and refusing to tell the applicant – Asia Green IT (AGIT) – what it had discussed. It refused to provide documentation about those meetings or any subsequent discussions by ICANN's staff or board, claiming they were confidential.
Instead, AGIT was obliged to go through three different appeal mechanisms in which its concerns were repeatedly discarded by the same ICANN staff and board before it was allowed to apply to the organization's final accountability mechanisms – the independent review panel (IRP) – in December 2015.
That panel reached a unanimous decision back in November 2017: that ICANN had broken its own bylaws by creating the "on hold" status; and had done so again when it refused to hand over information about what was going on with the applications, or details of its discussions with the organizations that it claimed prevented it from approving the internet extensions. ICANN was ordered to pay nearly the full cost of the proceedings – amounting to almost $300,000.
Despite that decision, however, the domain name system overseer continues to refuse to move the applications forward, give any indication how they can move forward, or provide any information about the applications beyond saying that yet another ICANN board committee would look at the issue.
The Board Accountability Mechanisms Committee (BAMC) met two months after the IRP decision against it, in January 2018, to discuss the issue and, according to its minutes, agreed to "provide a recommendation to the Board as to whether or not the applications for .HALAL and .ISLAM should proceed."
Two months later, in March 2018, it had agreed on its recommendation: that it would "provide a recommendation to the Board as to whether or not the applications for .HALAL and .ISLAM should proceed." In other words, following two months of discussions, it agreed with its earlier decision.
It also discussed what it would do if its recommendation to come up with a recommendation was subsequently accepted by the Board, noting "the importance of efficiency."
Running out of patience
The seemingly endless delays with no communication led to a letter from the applicant's lawyer demanding that ICANN either approve the dot-words, or "facilitate direct dialogue and negotiations between AGIT and the governmental objectors, with the view of reaching a mutually acceptable solution to allow for the use of .islam and .halal."
It referenced two other notorious cases where ICANN's staff and board had been found to have repeatedly broken their own bylaws in order to refuse an application following vague objections from governments: .africa and .amazon.
The .africa case is due to be argued in court in Los Angeles, in the US, next month, where ICANN is formally accused of fraud; the .amazon case continues to be furiously argued within the organization.
As for .islam: its letter [PDF] was sent in February, and five months later, ICANN finally replied, arguing that its board could do whatever it wanted whenever it wanted.
In a move seemingly calculated to infuriate the applicant, it noted that "if AGIT would like to submit a summary of its efforts to engage with the objecting parties thus far, as well as AGIT’s proposed approach to further that engagement, ICANN will certainly consider AGIT’s submission if made before the Board takes up this matter in the near future."
That comes despite the independent review of ICANN's actions finding that its staff and board had repeatedly discussed the issue directly with government representatives – the "objecting parties" – and refused to disclose details of those discussions.
The IRP final declaration also specifically threw out ICANN's suggestion that AGIT speak with the government representatives themselves and report back to ICANN.
"ICANN went on to acknowledge that there is no obligation on the Objectors to speak with the claimant," the report noted, "and ICANN does not have the jurisdiction to require such communication takes place."
It called ICANN's position "unacceptably vague," and complained that it "fails to provide the claimant with a structured means of addressing a potential lack of cooperation in resolving the conflicts noted."
The entire issue is due to be discussed and possibly decided at the next meeting of the Board Accountability Mechanisms Committee (BAMC) later this week, on August 2.
That meeting comes nine months after the organization was told by its own independent review panel that it had repeatedly broken its own bylaws by delaying the applications for no clear reason, while providing little or no information, and for having failed to offer a process to resolve the issue. ®