Eight South American governments have vowed to make life difficult for DNS overseer ICANN after it gave the .amazon top-level domain to the US tech giant headed by Jeff Bezos.
In a letter [PDF] sent on Friday, the Amazon Cooperation Treaty Organization (ACTO) responded badly to a missive from ICANN’s president saying it was going ahead with adding the address to the global internet.
Calling the decision “illegal and unjust,” as well as an “act of force,” it criticizes ICANN’s “attempts to legitimize a decision that was not taken under legitimate circumstances nor for legitimate reasons,” and vows vague revenge by “disseminating news of this situation to all relevant groups.”
That angry response is one that ICANN has gone out of its way trying to avoid but, ironically, ended up inviting due to its attempts to drag out the process. It has been eight years since Amazon applied for its namesake generic top-level domain (gTLD) and, initially, the application passed all the checks and was approved, as were more than a thousand others.
But following revelations from Edward Snowden about mass surveillance by the US government, which included tapping the mobile phone of the-then president of Brazil, the Brazilian government started raising objections and was joined by other South American legislatures.
Those governments used an inter-governmental process to formally object to .amazon and ICANN responded by putting the application in legal limbo, presumably in the hope that Amazon would walk away. But they had reckoned without the online giant’s determination and, after spending years and millions of dollars going through ICANN’s review process, the tech giant emerged triumphant in 2017.
It is worth noting that Amazon won the independent review for the simple fact that neither ICANN nor the governments had actually stated their reasons for rejecting the application.
"The board failed in its duty to explain and give adequate reasons for its decision,” the decision read, adding that “an explanation... for denying the applications was particularly important in this matter, given the absence of any rationale or reasons provided by the GAC for its advice.”
It stated that it was "unable to discern a well-founded public policy reason" for turning the application down and revealed that ICANN had not even discussed, let alone relied on, the conclusions of an independent expert who had been hired to dig into the issue and who also concluded there was no reason to deny it.
Despite being told its actions were unjustified and it should approve the .amazon application, ICANN did not reverse its position however. Brazil made it clear it remained unhappy and tried to get ICANN’s Governmental Advisory Committee (GAC) to continue opposing the introduction of .amazon. Meanwhile Amazon wrote an angry letter insisting that ICANN follow the results of its own independent review.
And so, in an effort to avoid taking a decision, ICANN’s board approved a resolution that required ACTO and Amazon to resolve the issue themselves and report back to ICANN with a solution. Despite Amazon making a variety of offers, including $5m of free Kindles and AWS credits, the two sides were unable to reach agreement and a year later ICANN was put under pressure to act.
It responded again by avoiding confrontation and passed another series of resolutions that were aimed at pushing the two sides together. That process also inevitably failed. ICANN’s Board then directed its CEO to oversee the process - but he was unable to even arrange a meeting with the governments.
Another year passed and it became clear to many that the governments’ strategy was to rely on ICANN’s unwillingness to make a decision to drag out the process indefinitely. Behind the scenes, ICANN board members had accepted the recommendation of its legal department not to confront the governments, but had put in place a series of deadlines to ensure that there was some kind of progress.
Not very appealing
Faced with a Board decision, the South American governments delayed action again by appealing through ICANN’s review processes. When that was completed and there was still no justification for stopping .amazon, ICANN finally announced that the issue was at an end and it would approve .amazon's sale to Amazon at its March 2019 meeting in Japan, seven years after the initial application.
But yet again ICANN shrank from a belligerent ACTO that claimed that any such decision would be illegitimate, with the business' CEO Goran Marby sending an apologetic letter to the organization:
"Let me assure you that the Board and I consider this recent turn of events to be truly unfortunate," he groveled. "We sincerely hope that we can put any misunderstanding between ACTO and ourselves behind us and move forward together in a constructive and positive manner that enables all parties to come to a mutually agreeable solution."
ACTO insisted on a face-to-face meeting and Marby duly got on a plane to Brasilia. He was in his hotel room in Brazil’s capital when he was told the meeting had been cancelled due to the political situation in Venezuela.
Rather than approve .amazon at its March meeting however, ICANN’s board decided - for a third time - that the best solution was to get the two sides to reach agreement themselves and gave yet another deadline to come up with an agreement. A deadline that was, of course, missed.
A month after that deadline, ICANN’s board finally moved forward, albeit in a decision couched in legalese and yet more process: Amazon would publish “Public Interest Commitments (PICs)” that it said would address the governments’ concerns and put them out for public comment, ICANN said.
Those PICs were published months later but ICANN went out of its way to make sure they weren’t noticed: it published them on a sub-site that requires people to register to access information, instead of using its normal public comment process, and it made no public announcement about the publication, despite promising to do so.
If in doubt, do it in secret
This secretive approach worked in one respect; there were only four comments when the comment deadline passed. This only served to infuriate the ACTO governments who felt, with some justification, that ICANN was trying to avoid scrutiny. The approach also worried observers who again saw ICANN making up new processes on the fly in an effort to skirt obligations rather than do its job properly and in full public view.
Eventually, it took none other than the US government to bail ICANN out of years of indecision. At an ICANN meeting in November, during which the Brazilian government asked the world’s governments to oppose the addition of .amazon to the internet and insist that ICANN require ACTO and Amazon to have a fourth round of negotiations to reach a “mutually acceptable solution,” the US government said it had had enough.
“The United States does not support further intervention that effectively works to prevent or delay the delegation of .amazon and and we do not believe that it is required,” its representative told the meeting in Montreal, Canada.
Nothing was heard from ICANN for a month until its CEO sent ACTO a letter [PDF] on December 17 that thanked it for its “continuous participation in the discussions related to the delegation of the .amazon top level domains” but noted that “ICANN and Amazon Corporation will shortly sign the agreements related to the delegation of .amazon top level domains as part of the next steps toward delegation of these top level domains.”
Two days later, Marby published a blog post noting the same.
And then, on Friday, in what may be the final piece of correspondence over the eight-year battle over .amazon, ACTO sent its response in which it called the decision to finally approve the top-level domain “illegal and unjust” and one that “was not taken under legitimate circumstances nor for legitimate reasons.”
It’s not known exactly when the .amazon name will appear on the global root zone file but based on the addition of hundreds of other TLDs over the past five years, it will be as soon as this month if Amazon indicates it wants to move forward and is ready.
Jeff Bezos finally gets .Amazon after DNS overlord ICANN runs out of excuses to delay decision any furtherREAD MORE
As for the process itself, the only lessons learnt appear to be the wrong ones. ICANN continues to convince itself that it did the right thing, despite the evidence otherwise. There is no sign that the organization intends to carry out an After Action Review to highlight failings and make recommendations - a common approach in most large organizations but one which ICANN has never engaged in, leading it to repeat the same mistakes over and over again.
ACTO is still furious - at least on paper - and government representatives have learnt they can delay ICANN processes for years by sending the occasional letter and giving the occasional speech. In the end, it still took the intervention of the US government to get the ball rolling.
And all the companies of the world have learnt, again, that when it comes to ICANN, its processes are unreliable and can at any point be overturned by arbitrary decisions made by unaccountable staff. Forcing the DNS overseer to follow its own rules will require years of effort and millions of dollars in lawyers’ fees.
Given other controversies surrounding ICANN in recent months, including extracting $20m from Verisign to sign the dot-com extension agreement, and the furore over the proposed sale of .org to an unknown private equity firm, it is no wonder that calls for reform of ICANN have grown louder in recent days. ®