ICANN broke its own bylaws – and acted in a way "fundamentally inconsistent" with its role as the world's DNS overlord – while restricting efforts to make itself more accountable to netizens.
That striking judgment [PDF] comes this month from an independent review team at the International Centre For Dispute Resolution (ICDR). The panel said ICANN's moves to shield two top officials from questioning in a row over the .africa top-level domain "deprives the accountability and review process set out in the bylaws of any meaning."
DotConnectAfrica (DCA) wanted to run the .africa registry, but it was blocked from doing so by ICANN's committee of government representatives. DCA has been tussling with ICANN ever since to get the decision overturned, which is why it wants to quiz the two officials – ICANN board member, Cherine Chalaby, and the former head of its Governmental Advisory Committee (GAC), Heather Dryden.
(This follows a similar ruling this time last year: in May 2014, ICANN was criticized by the independent team for failing to create a standing committee to hear complaints, again in breach of its own bylaws. And just last month, in a separate case, ICANN was slammed by the ICDR for restricting its ability to provide anything approaching an independent review of the domain-name overlord.)
This time, the ICDR panel has clearly had enough: it has demanded Chalaby and Dryden appear before them next month in Washington DC to answer questions. If they fail to appear, the panel has warned that it will "draw the necessary inferences and reach appropriate conclusions regarding that witness’s declaration."
ICANN – which wants to completely take over the heart of the world's DNS from the US government – said it will not send the two to the hearing, scheduled for May 22 and 23, and that any evidence would have to be submitted in advance in writing. In doing so, it quoted from its own bylaws – written by ICANN's lawyers – to back its position.
(Those handy bylaws were unilaterally written by ICANN staff in response to an earlier review hearing that the organization lost. In that case, back in 2010, ICANN's decision to block .xxx was challenged, and the DNS overlord was defeated after two of its senior officers were quizzed by an independent panel. Best not let that happen again, eh?)
The panel in the .africa case felt that not allowing any questioning of the key witnesses "unduly and improperly restricts the Panel’s ability to conduct the 'independent review' it has been explicitly mandated to carry out." Thus, ICANN walked all over its other bylaws that demand accountability, the team said.
It then went into greater detail over why that was the case:
How can a Panel compare contested actions of the Board and declare whether or not they are consistent with the provisions of the Articles of Incorporation and Bylaws, without the ability to fact find and make enquiries concerning those actions in the manner it considers appropriate?
How can the Panel for example, determine, if the Board acted without conflict of interest, exercised due diligence and care in having a reasonable amount of facts in front of it, or exercised independent judgment in taking decisions, if the Panel can not ask the questions it needs to, in the manner it needs to or considers fair, just and appropriate in the circumstances?
How can the Panel ensure that the parties to this [Independent Review Panel] are treated with equality and that each party has the right to be heard and is given a fair opportunity to present its case with respect to the mandate the Panel has been given, if as ICANN submits, “ICANN’s Bylaws do not permit any examination of witnesses by the parties or the Panel during the hearing”?
The Panel is unanimously of the view that it cannot.
The decision highlights yet again that ICANN falls far short of providing adequate accountability into its decisions and processes, to the extent that it has purposefully developed and implemented procedures that make real accountability impossible.
The issue is of particular interest at the moment since ICANN is going through a formal process of review on its accountability before it is allowed to take control of the critical IANA contract from the US government.
An independent group is recommending that ICANN be turned into a member-led organization that would enable the internet community to sack and overrule the board on critical issues. It is also exploring the idea of creating a much larger board with a smaller executive board in order to deal with an endemic problem of secrecy and information control at the non-profit. ®