.Africa IRP: The Transcript that cost ICANN – GAC’s “Creative ambiguity, We leave things unclear so we don’t have conflict”

GAC has been now found to be one of the biggest impediment to ICANN’s accountability and transparency standards this is due to the several times that GAC’s intervention of the new top level domain has been found to be meddling with applicants without reason or strong reasons to back their consensus objection.

Applicants for strings such as Amazon, GCC, Patagonia among others have faced the brunt of GAC’s unchecked power that reduces a 185k USD application to a mere objection advice. GAC’s activities have also attracted the US Congresses attention with 11 members of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet goes cosigning a June 10 2015 letter to ICANN that stated that:

“ICANN’s Governmental Advisory Committee (GAC) appears to have overridden several community-developed policies in recent years. Such an outcome is incompatible with the bottom-up, multistakeholder model reflected in ICANN’s Articles of Incorporation and By-Laws.”

DCA Trust one of the .africa domain applicants refused to give up on the objection and in October 2013 invoked one of ICANN’s accountability mechanisms that is called the independent review Panel. The IRP ended up exposing a lot of suspect activities, we have pulled part of the IRP hearing witness transcript of former GAC Chair Heather Dryden that shocked the panelists and ended up costing ICANN.

GAC’s business: “we talk about creative ambiguity. We leave things unclear so we don’t have conflict.”

“…as ICANN’s own witness, Ms. Heather Dryden acknowledged during the hearing, the GAC did not act with transparency or in a manner designed to insure fairness.”

Mr. ALI: But what was the purpose of the discussion at the Prague meeting with respect to AUC? If there really is no difference or distinction between voting/nonvoting, observer or whatever might be the opposite of observer or the proper terminology, what was — what was the point?

Heather Dryden:  I didn’t say there was no difference. The issue is that there isn’t GAC agreement about what are the — the rights, if you will, of — of entities like the AUC. And there might be in some limited circumstances, but it’s also an extremely sensitive issue. And so not all countries have a shared view about what those — those entities, like the AUC, should be able to do.

Mr. ALI: So not all countries share the same view as to what entities, such as the AUC, should be able to do. Is that what you said? I’m sorry. I didn’t –

Heather Dryden : Right, because that would only get clarified if there is a circumstance where that link is forced. In our business, we talk about creative ambiguity. We leave things unclear so we don’t have conflict

The GAC is not a decision making body, but Made a decicion on DCA Trust anyway…ICANN accepted

“…the GAC is not a decision making body” and Principle 5 states that “the GAC shall have no legal authority to act for ICANN”.

MR. ALI: I would like to know what it is that you, as the GAC Chair, understand to be the consequences of the actions that the GAC will take —

HONORABLE JUDGE CAHILL: The GAC will take?

MR. ALI: — the GAC will take — the consequences of the actions taken by the GAC, such as consensus advice?

HONORABLE JUDGE CAHILL: There you go.

Heather Dryden: That isn’t my concern as the Chair. It’s really for the Board to interpret the outputs coming from the GAC.

GAC made its decision without providing any rationale

While ICANN was bound by its Bylaws to conduct adequate diligence to ensure that it was applying its procedures fairly. Section 1 of Article III of ICANN’s Bylaws, require it and its constituent bodies to “operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness. The Board must also as per Article IV, Section 3, Paragraph 4 exercise due diligence and care in having a reasonable amount of facts in front of it. In this case of DCA Trust, on 4 June 2013, the NGPC accepted the GAC Objection Advice to stop processing DCA Trust’s application

ICANN did not bother to get clarifications from GAC and only took the advice at face value thereby seriously failing DCA Trust without reason, See the transcript below:

ARBITRATOR KESSEDJIAN: So, basically, you’re telling us that the GAC an applicant, and no reasons, no rationale, that are in the rules?

Heather Dryden: I’m telling you the GAC did not provide a rationale. And that was not a requirement for issuing a GAC —

HONORABLE JUDGE CAHILL: But you also want to check to see if the countries are following the right — following the rules, if there are reasons for rejecting this or it falls within the three things that my colleague’s talking about.

Heather Dryden: AThe practice among governments is that governments can express their view, whatever it may be. And so there’s a deference to that.

That’s certainly the case here as well.

The Communique

The panel also looked into the process of designing communiques and the consensus advice, and it was revealed by the witness Heather Dryden:  that DCA Trust’s .africa was given a consensus objection without rationale.

PRESIDENT BARIN: And what happens to that communiqué? Does the Board receive that and say, Ms. Dryden, we have some questions for you on this, or —

Heather Dryden: Not really. If they have questions for clarification, they can certainly ask that in a meeting. But it is for them to receive that and then interpret it and — and prepare the Board for discussion or decision.

PRESIDENT BARIN:  Okay. And in this case, you weren’t asked any questions or anything?

Heather Dryden: I don’t believe so. I don’t recall.

PRESIDENT BARIN: Any follow-ups, right?

ARBITRATOR KESSEDJIAN: But, I mean, look, the GAC is taking a decision which — very quickly — I’m using your words, “very quickly” — erases years and years and years of work, a lot of effort that have been put by a single applicant. And the way I understand the rules is that the — the GAC advice — consensus advice against that applicant are — is based on those three criteria. Am I wrong in that analysis?

Heather Dryden: I’m saying that the GAC did not identify a rationale for those governments that put forward a string or an application for consensus objection. They might have identified their reasons, but there was not GAC agreement about those reasons or — or — or — or rationale for that. We had some discussion earlier about Early Warnings. So Early Warnings were issued by individual countries, and they indicated their rationale. But, again, that’s not a GAC view.

ARBITRATOR KESSEDJIAN: So, basically, you’re telling us that the GAC takes a decision to object to an applicant, and no reasons, no rationale, no discussion of the concepts that are in the rules?

Heather Dryden: I’m telling you the GAC did not provide a rationale. And that was not a requirement for issuing a GAC —

[…]

ARBITRATOR KESSEDJIAN:  I’m sorry. You say the rules say problematic, potentially violate national law, raise sensitivities. These are precise concepts.

Heather Dryden:  Problematic, violate national law — there are a lot of laws — and sensitivities does strike me as being quite broad.

[…]

ARBITRATOR KESSEDJIAN:  Okay. So we are left with what? No rules?

Heather Dryden: No rationale with the consensus objections.

That’s the — the effect.

The testimony of the former GAC chair summarized the whole GAC advice into a game that does not have rationale.