Simply not credible: The extraordinary verdict against the body that hopes to run the internet

Independent review tears into ICANN board and staff

In an extraordinary judgment, the organization that hopes to take over running the top level of the internet later this year has been slammed by an independent review as at best incompetent and at worst deliberately mendacious.

The decision [PDF] by ICANN's Independent Review Panel (IRP) over the organization's decision to refuse "community" status for three applications covering business suffixes has exposed a level of double-dealing that many suspected occurred in the non-profit organization but has been difficult to prove.

The ICANN Board Governance Committee (BGC) in particular comes under fire for having repeatedly failed to carry out its duties.

Despite serious allegations being made against ICANN's staff and the "independent" evaluator it had selected – the Economist Intelligence Unit (EIU) – the panel found that the BGC did not carry out any investigation. Instead it had relied solely on material supplied by ICANN's legal team – the very people at the center of the complaints.

"The BGC failed to address any of these assertions," the judgment reads. Later: "The BGC admittedly did not examine whether the EIU or ICANN staff engaged in unjustified discrimination or failed to fulfill transparency obligations."

ICANN hopes to take over functioning of the top level of the internet from the US government in October this year, after which it will be solely responsible for deciding how the internet's numbering and naming systems are carried out.

A key concern with that move is that ICANN is not sufficiently transparent or accountable. Despite two years of efforts to restructure the organization to make it more accountable, come October the ICANN board will retain complete control over the organization's decisions and its staff will remain accountable only to the board.

As such, the failure of the board to even look at allegations of staff misbehavior is alarming, given the enormous powers the organization will soon assume.

Cavalier

The independent review panel slammed the BGC for its "cavalier treatment" of the complainant, Dot Registry, and mocked its claim that it did carry out an independent review as "simply not credible."

It noted that "the record makes it exceedingly difficult to conclude that the BGC exercised independent judgment" and that its actions "raise serious questions in the minds of the majority of the Panel members about the BGC's compliance with mandatory obligations."

It found that the BGC had broken ICANN's own bylaws.

But if the board failing in its duty to oversee the organization wasn't bad enough, it is nothing compared to what ICANN's staff got up to.

In one of the most startling examples, internal emails showed that ICANN's legal team wrote the language used to disqualify the applications and then attempted to pass it off as the view of the "independent" evaluator it had hired to look into the applications.

ICANN's legal team even injected the argument that "research" carried out by the EIU had led to its decision to not award critical points to the applications for .inc, .llp and .llc. In reality, no such research had been carried out.

From the report:

While noting that 'research' supported its conclusions, the EIU failed to identify the research conducted, what the results of the research were, or how such results supported its conclusions.

Despite repeated claims that the EIU served as an independent evaluator, the panel reached the opposite conclusion and noted that ICANN staff were "intimately involved" in the drafting of the EIU's reports and the EIU was "under supervision" from ICANN staff.

That conclusion fits with an earlier judgment of the IRP in a different case and with a different evaluator. In the case brought by DotConnectAfrica (DCA) over the .africa name, ICANN's staff not only intervened repeatedly with the "independent" evaluator – in that case InterConnect – to undermine DCA's application, but redacted all mention of its interference from the record and even in the final IRP judgment.

ICANN is being sued by DCA in the California courts despite DCA winning its IRP appeal after ICANN put DCA through a secondary "sham" process in which it continued to deny its right to the .africa registry. The case is scheduled for jury trial in February 2017.

The extent of the efforts by ICANN's legal team to decide the outcome of every application while appearing not to was also exposed in the Dot Registry case.

Through the course of the two-year review, it emerged that ICANN's general counsel, John Jeffrey, had devised an elaborate legal ploy to shield his team from scrutiny.

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