ICANN Ombudsman Blog Creating Dialogue Affirming Fairness

April 28, 2016

Harassment Complaint

Filed under: Uncategorized — Chris LaHatte @ 6:49 pm

During the ICANN 55 meeting in Marrakesh, Morocco my office became aware of two complaints of sexual harassment.

The first of these complaints has already been referred to in a previous blog entry.

The second complaint came in shortly after the meeting closed. I received an email relating to a particular incident and accordingly opened an investigation on behalf of my visitor. I contacted the person who was named as the individual who behaved in a manner which my visitor found offensive. The person did reach and take the name badge, an intrusive and unwelcome act, and made comments which my visitor did not welcome. During the course of the investigation, another person made a statement about the incident, supporting my first visitor.

As a result of the complaint, I then approached to the person named. The person responded at first instance seeking time to reflect and respond. After taking some time, (with a reminder from me) the person then made an apology to both my visitor and to the supporting person. I discussed this with my visitor and the supporting person, and they were satisfied with the apology, and I therefore closed the complaint on that basis.

I support the courage of my visitor in making the complaint, but I am also grateful for the other person for recognising that the behaviour was not appropriate and making an apology, rather than putting my visitor and supporter to a more difficult investigation. This enabled closure, and a better template for resolving such issues if they occur in the future. My visitor commented that, “The solution to this issue is acknowledgement, discussion, education, and action by the entire community.” I agree and hope this conversation can continue.

Chris LaHatte

March 30, 2016

Filed under: Uncategorized — Chris LaHatte @ 12:38 am

Office of the Ombudsman

Case 16-00054

In a matter of a Complaint by Padmini Baruah Report dated 30th March 2016


This investigation began as an enquiry about sexual harassment policy at ICANN 55 at Marrakesh. The enquirer, Ms Baruah, expressed surprise that there was no specific policy about sexual harassment, nor any points of contact in the event that there was an adverse incident. She indicated that she felt although a few inappropriate remarks were made, that she did not know who to approach. I suggested that she visit the office and discuss these issues. The appointment, after a brief postponement, was on 6th March 2016, when she attended at the office and had a general discussion with me and with Herb Waye about her opinion that there was a need for such a policy. She also made a specific allegation that an incident had taken place. The allegation was that she had a relatively brief discussion with a man, which she found derogatory and which she considered was sexual harassment. The description was that he leaned towards her and took her ICANN identification tag. There was a general discussion about the food, and she said that he made the comment, “you can go make me a cheese sandwich”, I was very recently provided with a fuller explanation of the comments and more of the conversation.

I have omitted his name to respect his confidentiality, and although he has been named by Ms Baruah in her published statements, I will not repeat the breach.


The essence of the complaint is a suggestion and complaint that the comments made were sexual harassment, in the context of ICANN not having a specific sexual harassment policy for ICANN meetings.


To undertake this investigation I have undertaken an inquiry as to the facts of the case. This has been by an interview with Ms Baruah and the other party. Ms Baruah was able to provide the basic details, and I then sought out the other party to tell him about the allegations. I was careful to protect the identity of the parties although the subsequent events have made this futile. I was anxious in the investigation to ensure that each party understood the process and the confidentiality of the complaint, and explained this to each party. I also wanted to make sure each party was fully aware of the details.

In the meantime, Ms Baruah used the public forum at the ICANN meeting to make public statements about the issue and her assertion that the existing standards found at https://meetings.icann.org/sites/default/files/icann-standards_of_behavior-jul14.pdf,

were inadequate. I also became aware that there was a certain amount of speculation and rumour as to the identity of the person, although the other party was not specifically identified in public. One other person with a similar name became concerned to the extent where he visited my office to ask if he was the person named. It was obvious that he was not, and I became concerned about the extent to which confidentiality was being breached. In the meantime I had sought detailed particulars of the incident. Unfortunately Ms Baruah did not respond to my request for those details until well after the ICANN meeting and everyone had returned to their homes. This meant the other party could not specifically address the allegations, which was unfortunate.

This was then overtaken by Ms Baruah then issuing a document more recently and some time after the ICANN 55 meeting, which she called a press statement which actually named the other party. Up to this point she had not addressed the queries I raised about certain matters, but chose to simply publish the details and circulate these widely. Some of those details were matters which I have asked Ms Baruah to provide, to enable me to put these to the other party to obtain his response and comment. But by this stage he had been named, which seriously compromised any impartial investigation.

On discussing this particular issue with him, he was able to provide comments on the latest details, which left me uncertain as to the facts. This added to my concerns following the failure to respond, and the naming.

I take the issue of confidentiality very seriously as this is a central tenet of the practice of an ombudsman. I maintain confidentiality until I have an express waiver from a party. Of course, I cannot control the position where a party chooses to waive confidentiality, but it is disappointing that the other party’s confidentiality has not been respected in this case.

As part of the investigation, I have sent a copy of my draft report to both of the parties in this matter. Ms Baruah eventually responded with a 14 page submission, and has asked that this be included as part of my report. I do not believe this adds to the report which I have prepared but cannot control what she does.

I have attempted to navigate a course of fairness between the parties in this matter to ensure that procedure meant both of them could have an opportunity to be heard. Ms Baruah has chosen to make public much of the material before I could complete any examination of the issues on a factual basis, which she is entitled to do, but regrettably has failed to see that this has caused unfairness to the other party by doing so before he had an opportunity to see the full details of what is alleged.

The 14 page submission contains the full description that I had sought from Ms Baruah from an early stage. She also expresses concern that the file that I kept does not have a full description of her original complaint. The first meeting was primarily about the lack of policy, but it did include a brief

description of the incident. The first issue was to correctly identify the other party, which became increasingly important because a number of other persons were named unfairly and incorrectly. So to investigate fairly I needed to first find out the correct identity of the other party. I then hoped to have a more detailed discussion but of course the other party could not recall the incident. So that I could obtain more identifying details to put to the other party, I sought the details which come in the full description for the first time in the 14 page submission. This was a frustrating because those details could have been provided very much early. She also provided the name of a witness, but this was only given after the substantial publicity and after the other party was named.

Ms Baruah suggests a number of definitions of sexual harassment which she asserts should have been used in my investigation. The point she may have overlooked is that there was no opportunity to test any such definitions, because of the way the investigation was compromised. But she understates the difficulty of defining sexual harassment, because of the jurisdictional issues which apply to behaviour which takes place, not in the United States nor India but in the Kingdom of Morocco. I have not had to consider that aspect of jurisdiction, perhaps fortunately, but in the development of any policy with regard to sexual harassment, there must be clear thinking on definition anchored to an appropriate jurisdiction. The work which Ms Baruah has undertaken to date, I recognise as a starting point, and if the ICANN community determines that such a policy should be developed, then I am confident she will provide some useful input.


This is a matter where I have jurisdiction as any such allegations are a matter of unfairness under Bylaw V. This is not accepted although I did not fully understand why, except that my gender was considered inappropriate to receive such complaints.


The situation is that there are two parties each with a different version of events, and with one denying any such incident took place. The role of the ombudsman is not that of imposing discipline on parties for breaches of the ICANN standards of behaviour. My role is to make recommendations based on an investigation of fact with a neutral perspective. I would usually try mediation to resolve issues or shuttle diplomacy. I have made some suggestions along these lines, but the publication and naming of the other party makes such steps impractical.

In this complaint, the matters alleged cannot be considered serious by any standard. If in fact the action and statement were made, it may have been a lapse of good manners and insensitive to gender. Such issues need to be taken in proportion, and best practice is not to debate this in a public forum where the issues are not yet clear. I note Ms. Baruah does not agree with my view.

However any chance of discussing the comments has been compromised by the decision to identify the other party before my investigation could be completed, and for the parties to have had a full opportunity to consider the alternative versions. The other party has been publically named without an opportunity to make any comment or denial of the incident. It is also part of my role as the

ombudsman to ensure that standards of procedural fairness are met, and the premature publication regrettably does not meet the standards of natural justice, because the parties have a right to be heard before this occurred.

It may be the position that there should be a discussion on policy about harassment, and whether the ICANN standards of behaviour are sufficient. Certainly a reference to treating other members of the community with respect and civility would in the view of some, be sufficient to cover harassment. But if the community wants to adopt a specific policy, then the policy development procedure can be used. I should note for completeness that ICANN, for internal staff purposes and for the board has a specific zero tolerance policy for sexual harassment.

The way this issue has evolved is unfortunate. My view is that there should be, as there is for ICANN for internal staff and board purposes, a zero tolerance policy for sexual harassment. I respect Ms Baruah’ s views and her advocacy on this most important issue. But there may have been a better way to approach this.


I have not been able to make a definite factual finding as a result of my investigation. The details which I had sought at the time to put to the other party have only been fully described in the 14 page submission. The other party simply denies that this incident took place. But because he has been identified and named before I could reach any conclusion, my investigation was compromised. As a result of this investigation, I consider that I cannot investigate further because of the compromises to confidentiality and procedural fairness.

It is unlikely that some form of restorative justice proceeding would assist, although that would be my preference if the facts had been established and not in dispute. I have adopted the Wikipedia definition which says

“Restorative justice is an approach to justice that focuses on the needs of the victims and the offenders, as well as the involved community. This contrasts to more punitive approaches where the main aim is to punish the offender, or satisfy abstract legal principles. Victims take an active role in the process. Meanwhile, offenders are encouraged to take responsibility for their actions, “to repair the harm they’ve done – by apologizing, returning stolen money, or community service”.[In addition, the restorative justice approach aims to help the offender to avoid future offences.”

I record this as my preferred approach. I regret I could not use this.

Chris LaHatte


February 17, 2016

The Role of The Ombudsman Post IANA Transition

Filed under: Uncategorized — Chris LaHatte @ 7:04 pm

As part of the IANA transition, and to start the process for the accountability studies for Work Stream 2, I will be holding a session at ICANN 55 at Marrakesh on Wednesday 9th March, at 3:45 p.m. in the Opale room. I will give a presentation on what I do at present, just a brief introduction, and then open for a brainstorming session on what people want. Any changes of course need to come from the community, and many have already begun to comment on the context of the discussions in the CCWG.

The sort of things to talk about our what people want the ombudsman to do. I have an existing function based on a bylaw drafted in 2002, when ICANN was a much smaller organisation, and before the introduction of the new generic top level domains. It is important to remember that the office of the ombudsman adheres to the IOA principles of ombudsmanship, and that an ombudsman does not have powers to enforce decisions but only to recommend something. It is not an appeal authority, but a function to look at fairness issues. The role has evolved somewhat in the 12 years of operation, and I will be happy to enter into discussions and welcome new ideas.

From the IOA site, with modifications, this is a guide. There are of course some specific ICANN Functions but I wanted to give a more general guide

The Ombudsman—Role and Function

The primary duties of an ombudsman are (1) to work with individuals and groups in the ICANN Community to explore and assist them in determining options to help resolve conflicts, problematic issues or concerns, and (2) to bring systemic concerns to the attention of the organization for resolution.

An ombudsman operates in a manner to preserve the confidentiality of those seeking services, maintains a neutral/impartial position with respect to the concerns raised, works at an informal level, and is independent of formal organizational structures. Successfully fulfilling that primary function in a manner consistent with the IOA Standards of Practice requires a number of activities on the part of the ombudsman while precluding others.

Activities and functions most frequently undertaken by an ombudsman include, but are not limited to:

Listens and understands issues while remaining neutral with respect to the facts. The ombudsman doesn’t listen to judge or to decide who is right or wrong. The ombudsman listens to understand the issue from the perspective of the individual. This is a critical step in developing options for resolution.
Assists in reframing issues and developing and helping individuals evaluate options. This helps individuals identify the interests of various parties to the issues and helps focus efforts on potential options to meet those interests.
Guides or coaches individuals to deal directly with other parties, including the use of formal resolution resources of the organization. An ombudsman often seeks to help individuals improve their skill and their confidence in giving voice to their concerns directly.
Refers individuals to appropriate resolution resources. An ombudsman may refer individuals to one or more formal organizational resources that can potentially resolve the issue.
Assists in surfacing issues to formal resolution channels. When an individual is unable or unwilling to surface a concern directly, the ombudsman can assist by helping give voice to the concern and /or creating an awareness of the issue among appropriate decision-makers in the organization.
Facilitates informal resolution processes. An ombudsman may help to resolve issues between parties through various types of informal mediation.
Identifies new issues and opportunities for systemic change for the organization. The unique positioning of the ombudsman serves to provide unfiltered information that can produce insight to issues and resolutions. The ombudsman is a source of detection and early warning of new issues and a source of suggestions of systemic change to improve existing processes.

What an ombudsman does not do:
Because of the informal, neutral, confidential and independent positioning of an ombudsman in an organization, they typically do not undertake the following roles or activities:
Participate in formal investigations or play any role in a formal issue resolution process
Serve in any other organizational role that would compromise the neutrality of the ombudsman role
Receive notice for the organization
Make binding decisions or mandate policies
Create or maintain records or reports for the organization

For detailed reading see https://www.ombudsassociation.org/IOA_Main/media/SiteFiles/IOA-Library-Links-Only-v3_links.pdf

January 21, 2016

Principles for Designing Accountability

Filed under: Uncategorized — Chris LaHatte @ 8:05 pm

I recently stumbled across a political scientist whose work I think has direct relevance to the work we’re doing on the IANA transition. Dr Elinor Ostrom was a political scientist writing on many subjects and was a Nobel Prize winner in economics. Among other topics she discussed what is known as the tragedy of the commons and came up with a different approach, based on extensive fieldwork. I have extracted part of this from an excellent Wikipedia article, which talks about “Design principles for Common Pool Resource (CPR) institutions”

Ostrom identified eight “design principles” of stable local common pool resource management

Clearly defined boundaries (clear definition of the contents of the common pool resource and effective exclusion of external un-entitled parties);
Rules regarding the appropriation and provision of common resources that are adapted to local conditions;
Collective-choice arrangements that allow most resource appropriators to participate in the decision-making process;
Effective monitoring by monitors who are part of or accountable to the appropriators;
A scale of graduated sanctions for resource appropriators who violate community rules;
Mechanisms of conflict resolution that are cheap and of easy access;
Self-determination of the community recognized by higher-level authorities; and
In the case of larger common-pool resources, organization in the form of multiple layers of nested enterprises, with small local CPRs at the base level.
These principles have since been slightly modified and expanded to include a number of additional variables believed to affect the success of self-organized governance systems, including effective communication, internal trust and reciprocity, and the nature of the resource system as a whole.

There are a number of aspects of this which are directly applicable to the exercise we are undertaking. I thought I would post this just as a possible measure against the work which is being done. This is not intended as a criticism of that work which has been an awesome cooperative effort, but perhaps to outline some of the principles which underlie the work.

January 14, 2016

Namescon 2016

Filed under: Uncategorized — Chris LaHatte @ 8:49 pm

I have just returned from Namescon, an annual event organised by Richard Lau and Jothan Frakes in Las Vegas. This event is described as a conference for the domain name industry, which covers many participants. There was a strong presence from many registrars, domain investors and also from other companies providing a full range of services such as escrow, financing, monetising domain names and also industry representatives such as the Domain Name Association, Internet Commerce Association and of course ICANN. All four days were packed with a variety of sessions providing multiple alternatives depending on the interest of the participants. I participated first on Sunday with a panel session on engaging with ICANN together with Stephane Van Gelder and Angie Graves, both of whom have extensive experience in the GNSO, and it was a well attended discussion, with helpful questions and some useful guidance.

Jothan Frakes provided recaps for each day and I have relied (and used, I am sure he wont mind) on his work to help compile my own summary.

Monday actually began with NamesCon co-founder Jothan Frakes making us welcome, and sharing with us that there were 1200 people registerde, a new record. There was for the whole of the conference a
Network Lane with over 30 exhibitors including eName, Wiz-LocIQ, Greenbery & Lieberman, Hexonet, HasTraffic, Inov8v, RightOfTheDot, Verified.domains, DNAttorney, Donuts, WaterNight, Park Logic, DropCatch.com/NameBright.com, Domain Pros, Undeveloped.com, NameConnect.com, Whoisology, Top Level Design, Handshakin’ Video Series, ICANNWiki, Punto2012/simulating.life, Brand.bar, i2C, Efty, DomainAgents, ICA, DomainSponsor, NameBio.com, Pressed.net, DOMAINFest Asia, LLLL.domains, The DNA and Data Provider.

We heard about domain name security, and when to hide certain information, and when to tell the whole truth and nothing but the truth, and just to have eyes on the back of your head. At Domain Aftermarket 101, attendees were told about the domaining world where people make a living at this and were told some of the ins and outs of leveraging the value of a name. Donuts provided an open bar to promote .wine and .vin, a feature welcomed by many! Topic tables included a number of presentations by domain name lawyers who discussed many diverse issues such as the interplay between trademarks and domain names, some of the recent law affecting domain names and generously shared their views on a range of topics and entertained us with Legendary legal tales

On Tuesday there were many great sessions also. Jennifer Wolfe invited Cecilia Smith and Stacey King, two women from some of the biggest content providers in the world, to provide a glimpse at what some huge brands have up their sleeves in Top Brands and their TLD Strategy.Frank Schilling explained new tools from Uniregistry in his keynote address and gave away a few domains as well. Elliot Noss’ keynote was more like a rallying cry for decentralizing technology, which may very well change the way we conceive of the Internet. The highlight for many was the domain name auction with some amazing prices paid for both old and new top level domain names. the day finished with a great fundraiser for WaterNight, a project which raises funds for clean water projects in Africa, a well supported and fun night.

Wednesday had many highnotes including GoDaddy unveiling a mobile app for domain-name investors. Paul McGrady, well knowen for writing on domaining law, spoke briefly about the new forces shaping the Internet marketplace. Pat Kane from Verisign delivered a keynote on the continued growth of .com and .net, and! what is shaping the development of new registrations. Matt Barrie, CEO of Freelancer.com and Escrow.com, showed off some new tools for domain-name leasing, as well as dropping a few freebies for NamesCon attendees.

This is but a brief summary of a rich and complex series of presentations. To me, the most exciting presentations were those who were actively seeking to develop the domain name with all of the additional services, and not just the speculation in names . But of course what was happening in the corridors was probably as important as the presentations. The networking opportunities were eagerly seized by many participants, and I am sure that many new ideas and businesses will be founded upon the relationships built. For me as the ombudsman, it is important to recognise the domain industry as one of my constituencies, and to help raise awareness of my office and availability if there are issues within the ICANN community which affect the domain name industry. I met a number of significant people, some of whom do not have real awareness of how I could help, with the informal and confidential nature of an ombudsman investigation. I was grateful that I had the opportunity to participate, and to share the values and experience of my office as ombudsman. I hope I have raised awareness with some who now know about where I can help in future.

December 6, 2015

Managing Conflict 4.0

Filed under: Uncategorized — Chris LaHatte @ 8:06 pm

I recently had the privilege of attending at the Straus Institute at Pepperdine University on the fascinating issue of Managing Conflict. This was presented as a new wave of opportunities for businesses around the world, and we engaged in discussions about moving beyond the traditional methods of conflict resolution using the courts, arbitration or even mediation. The theme was to rethink the concept of how we manage conflict. Of course in ICANN we have been discussing accountability, with the underlying theme of managing conflict within the ICANN community. There has been considerable debate about the mechanisms to ensure that NTIA will be satisfied with the mechanisms available to the community to address issues of concern. This has extended beyond the present three levels regarded as accountability mechanisms, being the office of the Ombudsman, reconsideration by the ICANN board and the Independent Review Panel. An underlying theme has been an emphasis on openness and transparency, but also mechanisms to ensure that if the community believes the ICANN board has acted improperly, then for removal of directors or the entire board. There has not been much discussion about the procedure for dispute resolution however. There was a very substantial debate about removal of directors as resolution of some forms of dispute particularly where those directors have done something which may have offended the community. But there has been little discussion about what sort of things would qualify for removal.

My learnings from this Seminar and others reinforce my belief that there is a considerable level of discussion and dispute resolution which can and should take place before engaging the nuclear options. These are of course essential to have, in any event, as there will on occasion, be no other option. But we should aim to have these as the very last resort. It is important however to consider the scope of dispute resolution and the way in which issues enter any such system and are processed. So even problems perceived as trivial must be treated as part of dispute resolution, just as much as the major conflict. It is perhaps a truism that a neglected trivial issue may easily become the next major problem. In the office of the ombudsman, it is important that we deal with all problems with the same respect and attention. What may look small to the community may be a very serious problem for the visitor. The seriousness of the problem is a factor in management of the issue, rather than an issue of screening or exclusion.

So when the community wants to consider the types of issue which should fall into the ICANN accountability functions, it is necessary to consider the scope and range of those, and establish appropriate systems to gather and manage the issues. An issue comes to the attention of a dispute resolution entities such as the ombudsman, as the first accountability mechanism. It is well recognised within the ombudsman community, that our offices exist to gather in complaints at this entry level, and which often prevent the complaints from becoming major problems for the organisation. This is likely to be the ongoing function at ICANN, and the recommendations support enhancement of this, together with a direct role in assessing reconsideration requests at first instance. So how do we identify and gather in complaints? Formal parts of the process are the case management system allowing visitors to make a complaint with a ticketing system on the ombudsman website. But complaints also come in by email, occasionally by telephone calls and by visits in person at ICANN meetings. The other essential part of this is to identify the scope of matters which are to be dealt with by the accountability systems, including the ombudsman but also more widely. The various accountability working groups have not specifically address this issue, largely because they need to concentrate on the bigger picture of the necessary changes to the ICANN bylaws and other matters. So this may fall into the category of matters to be discussed subsequently.

Framing the scope of dispute resolution issues carries a number of challenges. It would be impossible to describe every particular type of issue, and so the scope must be in general terms but bounded by the very specific ICANN mission. There cannot be any mission creep caused by the ombudsman getting involved in issues such as spam or fraud or the dangerous area of content. But the scope must also ensure that the matters historically investigated by the ombudsman, together with the enhanced powers continue to be available to the community as issues to bring to the office.

I am hoping to establish a panel probably at the Marrakesh meeting next year where we can discuss issues like this. It is of course the community who should decide the scope of issues which can be brought to the accountability functions, and there is a need for a discussion about the options. In the meantime I have published this note as part of awareness raising.

October 11, 2015

EIU Own Motion Report

Filed under: Uncategorized — Chris LaHatte @ 7:45 pm

Office of the Ombudsman

Case 15-00110

In a matter of an Own Motion Investigation by the ICANN Ombudsman

Report dated 13th October 2015


Part of the jurisdiction for the ICANN ombudsman is to identify systemic problems within the ICANN community. In 2014, I began to receive a number of complaints about the Community Priority Evaluation (CPE), and it became apparent that there was considerable criticism of the way this process was operating and results. By the end of the year I had considered this matter further and sought permission from the ICANN board to commence an own motion investigation. Normally when complaints are received in the office of the ombudsman, it is not necessary to obtain permission from anyone to open a file and commence investigation. Under the Ombudsman bylaws in ICANN Bylaw V, an exception is where the ombudsman wishes to investigate a matter without a complainant, and on his/her own motion.
This investigation therefore began on the 20th January 2015 when the Board Governance Committee of the ICANN board passed a motion authorizing the investigation in these terms:-
“Ombudsman’s “Own Motion” Investigation – The BGC discussed and considered the ICANN Ombudsman’s request for authorization to undertake his “own motion” investigation on the New gTLD Program’s Community Priority Evaluation (“CPE”) process. Consideration of, and authorization for, Ombudsman’s “own motion” investigations is within the BGC’s scope of responsibilities under its Charter. The Ombudsman has advised that he has received a number of different complaints about the CPE process. Because the filing of an Ombudsman complaint triggers a stay on the status of other applications in the same contention set, the Ombudsman has suggested that it would be appropriate for him to undertake his “own motion” investigation into the issues raised in these complaints as well as the overall CPE process, rather than continue investigations on individual complaints, so as to limit interference with individual applications. The BGC voted to authorize the Ombudsman to proceed with the “own motion” investigation he has proposed on the New gTLD Program’s CPE process.”


The history of the program needs to be explained. I rely on the ICANN New GTLD site for much of this.
Generic top level domains were created before ICANN even came into existence and were subsequently expanded by ICANN with several small programs. After considerable community discussion, at the ICANN Singapore meeting in July 2011, the ICANN community agreed to a major expansion of new generic top level domains. The current new gTLD program was therefore the first major release of new generic names for ICANN.
In 2005, ICANN’s Generic Names Supporting Organization (GNSO) began a policy development process to consider the introduction of new gTLDs, based on the results of trial rounds conducted in 2000 and 2003. The two-year policy development process included detailed and lengthy consultations with the many constituencies of ICANN’s global Internet community, including governments, civil society, business and intellectual property stakeholders, and technologists.
After approval of the policy, ICANN undertook an open, inclusive, and transparent implementation process to address stakeholder concerns, such as the protection of intellectual property and community interests, consumer protection, and DNS stability. This work included public consultations, review, and input on multiple draft versions of the Applicant Guidebook, a guide developed for applicants and others as a manual for the program.
In June 2011, ICANN’s Board of Directors approved the Guidebook and authorized the launch of the New gTLD Program. The Applicant Guidebook has been revised continuously throughout the process to take into account issues which arose. It is significant because it was developed by the ICANN community and therefore the process and procedure are in effect “owned” by the community. Because the program was completely new, it was difficult to anticipate exactly how the procedure would work, but it is accurate to say that it was a complex and sophisticated application process. The ultimate final New gTLD Applicant Guidebook dated June 4, 2012, was issued a few months after the application window closed.
Once the community agreed that there should be community-based applicants, it was necessary to set out a procedure within the process to evaluate the community applications. It was agreed that there should be a panel to evaluate the applications, and the panel which was chosen was the Economist Intelligence Unit (EIU). The EIU has been in existence for around 60 years, with experience in analysis of political, economic and business intelligence, and provision of reports for institutions and governments.
The EIU set up a specialised team to deal with this project, and I quote from their publication:-
“The Community Priority Evaluation panel comprises a core team, in addition to several independent evaluators. The core team comprises a Project Manager, who oversees the Community Priority Evaluation project, a Project Coordinator, who is in charge of the day-to-day management of the project and provides guidance to the independent evaluators, and other senior staff members, including The Economist Intelligence Unit’s Executive Editor and Global Director of Public Policy. Together, this team assesses the evaluation results. Each application is assessed by seven individuals: two independent evaluators, and the core team which comprises five people.”
After the panel was established, the process of assessing the community applications began. As the end of the process approaches, it appears a substantial number of community applicants were not successful, and some of the unsuccessful applicants, including some whose applications were displaced in favour of a community application, were deeply dissatisfied with the process and the results. One application in particular for the dot Gay community application, initially denied priority for the string .gay, was subsequently submitted to the Reconsideration process at ICANN and the ICANN board recommended the EIU evaluate the application again. This was because there was a bundle of letters and documents not considered, which the Board considered a technical error, but which required a new evaluation. This has now been released, but the community application did not gain sufficient points again. It has therefore gone to a contention set with other applications for this string.
It was apparent that there was considerable dissatisfaction, and eventually I determined that it was appropriate to conduct an own motion investigation because of the issues which had arisen.


To undertake this investigation I have looked at the procedures as outlined on the relevant webpages for ICANN and the AGB (Applicant Guidebook ), as follows. The page on the ICANN website is http://newgtlds.icann.org/en/applicants/cpe and there is an explanation of the panel process at http://newgtlds.icann.org/en/applicants/cpe#understand together with a FAQ page.
I have also sought comment from community applicants, and those who have replied, have provided me with thoughtful and well reasoned comments. They have not all consistently accepted the fairness of the process of course.


The issue which I am required to investigate is the community application process for new generic top level name applications, and whether the process was fair and procedurally correct and the whether the processing of the applications by ICANN and the EIU was fair and procedurally correct.
The ICANN ombudsman has had jurisdiction to commence an own motion investigation since 2009. This is a power rarely exercised, and in this case there were a number of factors which influenced my decision to seek the permission required under Bylaw V from the ICANN board to commence the investigation. The first of these was that ICANN had decided that whenever an accountability mechanism of ICANN was invoked, accountability mechanisms being an ombudsman complaint, reconsideration request or IRP review, that the application for the new generic top-level name would generally be placed on hold, until the particular accountability mechanism had run its course. If therefore I conducted individual investigations for community applications, that would be treated as an accountability mechanism, and could potentially delay applications. So a generic own motion investigation would not have that effect.
In addition to this the number of complaints coming to me about the community evaluation process made it clear that there was a systemic issue which required investigation. I therefore sought permission from the ICANN board, which was granted. I should add that when I sought the permission, there was no adverse comment or argument against this, but rather a neutral processing of the application for permission.
Issues Raised in Submissions
There were a number of common themes in submissions made to me. These included:-
• cost estimates were not accurate and doubled by the time the applications for CPE were actually filed
• many of the submitters criticised the secret nature of the CPE application process and keeping the identity of the panellists confidential
• several of the submitters complained that there was gaming by those in opposition and activity which was regarded as fraudulent, during the CPE process
• the time taken to undertake CPE was seriously underestimated by ICANN
• there was a lack of transparency in the process, with some calling the whole process opaque
• a number commented on the low number of applications which actually passed (estimated to be 75% failed)
• the process was further complicated by competing applicants who gamed the process after CPE was completed by use of the reconsideration and IRP procedures
• the process was criticised as being overly legalistic, and changed after the applications were lodged, creating additional guidelines
• there was a lack of communication to educate and explain CPE to potential applicants and communities, with only one webinar and a failure to properly market the concept of CPE


Community Applications

All applicants were required to designate whether their application was a community-based gTLD, and there were requirements imposed by the AGB to show a number of features such as an ongoing relationship with a clearly delineated community, seeking a string which strongly and specifically related to the named community, had particular dedicated registration and use policies for registrants including security verification, and the application had to be endorsed by one or more communities representing the named community. All other applications were called standard applications. There were in the end 1930 applications but of these only 4% or 84 were community based. All applicants were told that a formal objection could be filed against any application on community grounds, even if it was not a community application. If there were a number of applicants for the same string, including community and standard applicants, then community-based applicants would be offered CPE. The effect of successfully achieving the minimum CPE score was that the community applicant would prevail. If the community applicant did not score at least 14 points to prevail in a community priority evaluation, then their application would remain in a contention set with the standard applicants. A number of the applicants commented that once the failure to gain sufficient points occurred, a community applicant had virtually no chance of success against a commercially funded standard applicant. This observation appears to be accurate looking at the auction prices (for the not well funded applicants in any event, although that is difficult to objectively assess). However the CPE process was designed to identify whether the community application met the criteria established by the AGB. The AGB notes that “community-based applications are intended to be a narrow category, for applications where there are unambiguous associations among the applicant, the community served and the applied for gTLD string”. There is nothing unfair about this form of evaluation in my view.
One submitter commented that some community applicants are commercial ventures formed by industry insiders, and the lack of funding could be attributed to varied levels of business development than a history of philanthropy or public works. I do not have direct evidence for this, but this is perhaps not surprising. This does however illustrate the point I make later about the limited consideration of scope for community applicants when the concept was first developed.
Fees for CPE
The AGB provided an estimate that the CPE fee could be $USD10,000. Successful applicants would have the deposit refunded. It was anticipated that there may be additional fees, although no indication was given of the amount. A number of the applicants observed that the fees charged in the end were substantially greater and complained that this was unfair especially for communities who did not have the same funding as commercial applicants. It is unfortunate that the fees charged did increase to such an extent, being $22,000 when actually set and charged. The AGB did not commit to a particular figure, but did give an indication. At least part of the problem would have been that no one knew precisely how long the process would take and the extent of engagement between applicants and the EIU. But my view is that there should have been more clarity about possible substantial increases.
At the start of the contention resolution stage, all community-based applicants were to be notified that they could seek community priority evaluation and pay the deposit. Before the evaluation process began, ICANN would have the ability to seek additional information relevant to the community priority evaluation. So if the ICANN staff thought further information would help an applicant, they could suggest the community applicant provide this. However the panel could also request clarification, using the Clarification Questions process.

Criteria for evaluation is explained by this quote from the AGB at Module 4, 4.2.3,
“The scoring process is conceived to identify qualified community-based applications, while preventing both “false positives” (awarding undue priority to an application that refers to a “community” construed merely to get a sought-after generic word as a gTLD string) and “false negatives” (not awarding priority to a qualified community application). This calls for a holistic approach, taking multiple criteria into account, as reflected in the process. The scoring will be performed by a panel and be based on information provided in the application plus other relevant information available (such as public information regarding the community represented). The panel may also perform independent research, if deemed necessary to reach informed scoring decisions.”
A number of the applicants criticised the application process as being “opaque”. I do not believe that criticism is justified because the paragraph cited does give the EIU panel the ability to undertake wide reaching research. When I discussed the research issue with the EIU, they did explain the extent of their research, which was clearly wide ranging and thorough. But the criteria for establishing a community-based application are also described quite clearly in my view. I can sympathise with any applicant who needed to read the AGB to study the process, but the information was there.
The AGB at module 4 sets out the way in which points were to be granted for each of the four criteria. An application would need to score at least 14 points to succeed in CPE, and a number of applicants did criticise or seek to review the allocation of points in particular criteria. There are detailed descriptions and definitions through paragraphs 4 .10 onwards which appear to make it very clear as to the standards which must be met.
So looking at the application process, from identification at the start as a community-based applicant through to achieving the appropriate number of points, in my opinion the AGB provided reasonably clear guidelines for any community-based applicant. I do not consider that the process as outlined in the AGB was unfair to applicants. This is distinct from the processing of applications which I consider next.

Was the Processing of Applications Unfair?

It is a more difficult question as to whether there was unfairness in the processing of the CPE evaluations. In undertaking this investigation I talked to the new gTLD team at ICANN, the EIU staff and also sought submissions as I refer to above. The purpose of the investigation was to see whether any of the evaluations were handled in a way which was unfair to the applicants or failed in the process by not giving them a proper opportunity to present the case for their CPE evaluation. My research was therefore to look at the way in which the evaluations proceeded, and whether the process for applicants met standards of fairness. It would be necessary to find issues such as bias, conflict of interest, failing to permit or read submitted material, unfairly excluding relevant material or failing to give appropriate weight to submissions and evidence.
The AGB and the material provided by the EIU certainly describe a process which should avoid any of the potential problems. The process that the EIU developed, which was approved by ICANN, was designed to evaluate each application in a consistent and objective manner based solely on the AGB criteria. Because this was a new process, then of course it is quite possible that there would be errors and mistakes in the handling of evaluations for CPE. During the course of the reconsideration request for .gay there was an example of an omission, and the result was a recommendation that the EIU perform a new CPE for the application, by doing two separate evaluations together with new members of the EIU core team conducting the assessment. The omission which caused the BGC to recommend a re-evaluation, was a failure to verify 54 letters of support for the applicant, although a substantial number of other procedural grounds were raised by the applicant and rejected by the BGC. The applicant sought to raise every conceivable problem and only succeeded on this specific issue. The BGC recommendation was itself controversial, and certainly not accepted by rival applicants who called this a “harmless error” and criticised the ability for the applicant to have another chance to be evaluated. I have read the analysis of the request, which is useful in the summary of the process and handling of information for any CPE evaluation. It is also a useful example of how the checks and balances in the AGB have actually worked in practice. It is clear to me that there has been a careful and thorough approach by both ICANN staff and the EIU panel in the processing of these applications.
The EIU also comments that they
“reviewed all application materials, including correspondence for the .gay application evaluation. This meets the AGB standards. The EIU took an extra step, as outlined in our evaluation guideline, to attempt to verify relevant letters of support and opposition under certain circumstances. For the .gay evaluation, a single piece of correspondence (i.e. one PDF document) that contained a number of letters of support was reviewed but not verified via email. Again, the verification is not required by the AGB. Moreover, the verification of these letters would have had absolutely zero impact on the score for community endorsement, given the dozens of other letters of support already reviewed and verified.”
I have included this comment for completeness.
The EIU submitted that this point should be made clear, either in the text or a footnote, in order for the reader to understand the scope of the error and the impact it had (i.e. no impact) on the evaluation outcome.

Tension between Standard and Community Applicants

There appears to have been a certain amount of tension in the competing processes between those who wanted names reserved for communities and those who felt that the names should be better marketed by commercial entities. Some of the community applicants had to face criticism and opposition from standard applicants, and sometimes led to some unusual results. I have had comments from community applicants, that the standard applicants were somewhat hostile and aggressive to the community applicants. One standard applicant commented to me that some community applicants were gaming the system by avoiding fair competition. But I do not agree with that proposition based on the information submitted to me. It does illustrate the intense competition however. However in terms of the processing by ICANN and the EIU, this does not appear to have caused any specific unfairness.
For example, .lgbt was successfully obtained by Afilias as a standard applicant over opposition from an international community, The International Lesbian Gay Bisexual Trans and Intersex Association (ILGA). The AGB provided that there could be a community objection, not necessarily of course from a competing applicant. ILGA was associated with the .gay application but had not made a separate community application for .lgbt. Their standing was accepted in the objection determination as an established institution associated with a clearly delineated community as defined in the AGB. But ultimately the panel determined that since there was already an application under way for the .gay string, then the interest of the gay community were protected and did not require further protection by the protection of .lgbt. Since Afilias was the sole applicant, they prevailed once the objection by ILGA was dismissed. But the application for .gay was made by a community applicant although there were also standard applicants for this string. In a reverse twist, the standard applicants have complained about the .gay application as not representing a community, and providing submissions to the EIU in opposition of the CPE evaluation. The re-evaluation has again not succeeded in gaining priority however, as the appropriate score has still not been achieved, in a decision very recently released by the EIU.
I cite the above as an example of the inconsistencies which have arisen between standard and community applications. A common theme of the submissions on community applicants was that they had limited resources, especially when faced with standard applicants with deep pockets. But the reality may be more complicated as it is difficult for me to assess the commercial strength of any applicant. The CPE process was designed to overcome such difficulties, and the procedure was set up whereby applicants could either apply or be invited to apply for CPE, although issues of resources and funding were not actually discussed in this context. But of course applicants and those in opposition were still free to use the community objection phase as well as make submissions in opposition or in support to the EIU. In terms of unfairness, it is difficult to criticise those involved from using procedures which were established in the AGB and available to anyone who wanted to participate.

Small Numbers of Community Applicants

An issue raised by a number of submitters was the low uptake of community applicants. There appears to have been 20 CPE results published (as at 10th September 2015) although there were 84 community applications. Of course if not in contention, then CPE would not be needed. To properly consider this issue, it would be necessary to extensively survey prospective applicants to see why they chose a community application or chose not to apply, and that data is not available. It is clear that an applicant, whether standard or community, would need very substantial resources in order to both apply, and properly operate a registry. It would be logical to assume that community based applicants would have more difficulty in raising funds than a commercial applicant. Even though community-based applications could seek a lower application fee if the applicant could show it satisfied the criteria for Applicant Support, but being a community based application was not a requirement to be eligible for the lower fee. However the backend for any registry and the infrastructure would have similar costing for a community or standard application, which may have deterred some community applicants. There is no doubt there was considerable support within the ICANN community for the concept of community applicants. But commercial reality would have set in when potential applicants considered the merits and costs of such an application. The question therefore arises as to whether it was fair to raise the expectations of those who may have wanted a community application, where the cost and various procedural hurdles could readily be seen to be almost insurmountable. I am not sure that there was sufficiently clear identification of the difference between a “community” and a “not-for-profit”, or “philanthropic institution”, when the original policy was developed. There was clearly a concept that some applicants would be supported by smaller fees and procedural advantages. The transformation of this policy into practice and procedure was somewhat more complex, as has been identified in this report.
My discussions with ICANN staff about assistance provided to community applicants informed me that they went to considerable trouble to assist. There was considerable awareness that some community applicants were struggling, and ICANN staff appear to have provided appropriate levels of support. From my discussions with the EIU panel, they appear to have had a similar level of support from ICANN where needed.
I should also note however, that some applicants did comment that they found the submission of material difficult, and that change requests were not always dealt with quickly or within the expectation of the applicant. I suspect this was largely a communication issue. Other applicants did observe that they had an excellent relationship with the ICANN staff handling any such change requests or provision of further information. On balance I believe that this was handled appropriately.
More recently it was noted that out of the 18 CPE results, 11 have then gone on to further ICANN Accountability Mechanism, which is either an ombudsman complaint, reconsideration or the IRP process. It has been observed that the process resulted in “winners” and “losers”. However out of those 11 reviews only the .gay result was reconsidered and sent for re-evaluation. The writers of this paper (cited below) conclude that the process is likely to have been fair with that level of review.


One common thread of complaint was that the EIU panel was anonymous. Other objection processes such as the string similarity or community objection procedures were different, because the procedure was open, and the names of the panellists appointed to process the dispute resolution were made known. There was an opportunity to challenge appointment, and some took this opportunity. I would observe that there is always a level of suspicion created when an anonymous panel is appointed. On one hand it does avoid the possibility of lobbying the panel members, but on the other hand it can create fears that the persons on the panel were not qualified or were biased or were inappropriate to be on the panel. In a document provided by the EIU panel, approved by ICANN and placed on the ICANN website, the EIU describes the process for evaluation and the process under which the evaluation took place, which reflects the criteria in the AGB. They state that all the evaluators checked conflict of interest, undertook regular training, were highly qualified and multilingual and had expertise in a wide range of areas. So there was a process for ensuring that the evaluators were appropriately qualified persons. I also discussed this specifically with the panel who gave me the same assurances. It should also be noted that CPE is not an objection process. Rather, CPE is an evaluation process, similar to the other evaluation processes where similarly, the individual evaluators were not named. Also, with all evaluations, whether CPE or any other evaluation process, the organization was made public, just not the individual evaluators. Further, the ultimate result of the evaluation is the result of the Organization that was engaged to perform the evaluation, and not of the individual evaluators. This is different from an Expert determination resulting from an objection proceeding, which is deemed the work product of the individual or three member panel.
In addition to the EIU part of the process for evaluation, they also worked with ICANN staff. Most of those who submitted comments said that the staff were very helpful, and it is worth noting that the EIU did specifically say to me that the ICANN staff did not try to influence their decisions at all, but acted as neutral providers of information. Draft evaluations results were sent to ICANN, and staff did ask for wording changes. They frequently asked if the EIU were comfortable with the score. They were neutral but anxious that the EIU was confident with the result. They were careful about the wording, and anxious to ensure that the community would be satisfied with the result.
The EIU note specifically in this context that:-
“We need to be very clear on the relationship between the EIU and ICANN. We advise on evaluations, but we are not responsible for the final outcome—ICANN is.
The SOW states (emphasis added):
(i) the Panel Firm acts as a service provider to ICANN, assessing applications and recommending an outcome, as well as to provide (as applicable) a written explanation setting out its rationale;
(ii) ICANN will be free in its complete discretion to decide whether to follow Panel Firm’s determination and to issue a decision on that basis or not;
(iii) ICANN will be solely responsible to applicants and other interested parties for the decisions it decides to issue and the Panel Firm shall have no responsibility nor liability to ICANN for any decision issued by ICANN except to the extent the Panel Firm’s evaluation and recommendation of a relevant application constitutes wilful misconduct or is fraudulent, negligent or in breach of any of the Panel Firm obligations under this SOW;
(iv) each decision and all associated materials must be issued by ICANN in its own name only, without any reference to the Panel Firm unless agreed in writing in advance;
It should be clear in this document that we recommend/advise, but are not responsible for the final outcomes.”
This is a point which has not been considered by any other submitter. So in the end it will be up to ICANN to make a decision on this recommendation. The final outcome is, as reminded by the EIU, a decision for the ICANN board.
On reflection, it may have been better to have a more transparent process for this evaluation, by not using an anonymous panel. This will be an issue which the community will need to consider in the next round of applications for community names, when the next edition of the AGB is produced for that round. It is not possible to recommend changes to the existing applications, for the practical reason that virtually all of them have been completed. But having an anonymous panel is of course something which cannot lead to a conclusion that this made the process unfair. It is simply a recommendation for openness and transparency.


As a result of this investigation, I consider that while there were some problems which arose, such as the .gay letter issue, and I have made some criticisms of the process, such as the anonymity, I have not found issues sufficiently serious to recommend any action, other than recommendations about changes for the next round. The EIU supported by ICANN staff appear to have undertaken a very thorough and careful examination of the community applications, with sufficient feedback loops to ensure that the process was correct. There is some force in the actual result that only one CPE result has been sent for re-evaluation, although as a percentage it may be difficult to draw something out of a low number of applicants. But given the processes available to review, it is likely that the process has been conducted fairly.
There is no doubt that the concept of community-based applications was supported by the ICANN community when the new gTLD program was initiated and developed. There was however a need for a better scope of understanding of what those community-based applications were for, and what sort of persons or organisations would benefit from the use of a community based top level domain. Some consideration should have been given to the types of community which could use their own top level domain, whether these were to be charitable, community organisations or perhaps even NGOs or others. At least one submitter made the point that there was an element of public interest which they considered should have been the basis for community applications. But perhaps there should have been more discussion about how communities would actually benefit from having their own top level domain, given that any applicant would have substantial expenses but also the need to develop the technical infrastructure required for a registry, or partner with an organisation with that ability. The concept gave rise to expectations, which have to a considerable extent, not been met. I do not make this comment as a criticism of any of the parties, but it is something which can be considered if there are subsequent rounds of applications.

Chris LaHatte

September 22, 2015

Accountibility and Designing Dispute Resolution Systems for ICANN

Filed under: Uncategorized — Chris LaHatte @ 8:55 pm

One of the features of the debate on accountability has been considerable discussion about how to resolve disputes within ICANN. As the ICANN ombudsman it is my role to look at issues of unfairness within the ICANN community and to apply alternative dispute resolution techniques to any issues which are brought to me. This is of course based specifically on my bylaw and on the ombudsman framework, and deals specifically with unfairness and delay issues.
The debate has centred on whether the present other accountability structures, of reconsideration by the ICANN board and of the Independent Review Panel provide appropriate methods for the community to resolve disputes with ICANN and within the community. Regrettably there has not been much debate about some of the more basic issues which need to be resolved in designing a dispute resolution systems based on the new accountability structure.
The first thing which needs to be done is to try to identify the sources of conflict within ICANN and the community, and to understand why those problems arise. It is important to look at the structures and systems and relationships and any “conflict cultures” within the organisation. In considering these issues I acknowledge the work of Kenneth Cloke and Joan Goldsmith, who have written extensively on workplace and organisational disputes, and on management of those disputes and designing systems to improve the capacity for conflict prevention management and resolution.
My thinking on this arose after attending training on dispute resolution management design with Kenneth Cloke and Joan Goldsmith.


The first matter to consider is how conflicts arise within ICANN, and how these are managed. ICANN of course has a highly skilled and experienced legal team, with extensive litigation experience. But the point that I want to emphasise is that we need to understand how conflict arises within the community, and how it is managed. We also need to consider the various stages of entry into any dispute management system including any escalation mechanisms and final resolution systems.
Perhaps more importantly, we need to think about what sort of disputes are going to be dealt with within ICANN. There are some obvious matters where this would not be appropriate, such as employment contract disputes, criminal issues and lawsuits from outside the community. This is not of course a complete list. The office of the ombudsman has had jurisdiction over numbers of matters which are set out both in the ombudsman bylaw and in the Ombudsman Framework. But in a wider sense, issues that need to go to reconsideration by the board or independent review panels have been discussed in general terms, but there is as yet no general description of the types of issues which will be considered suitable for the new accountability mechanisms. It is important to have a framework for the type of disputes which are to be dealt with within ICANN as opposed to litigation. Many of the submitters and participants in the discussions have expressed clear views that court litigation must be avoided if at all possible. Obviously there will still be some litigation because ICANN remains a body incorporated under the law of the state of California. For some purposes there will be always a submission to those courts and to the federal courts of the United States.
So a discussion needs to take place, framing and scoping the disputes to be dealt with by these new accountability methods.


Once the discussion as to the scope and range of disputes has reached some agreed description, then a procedure needs to be designed which will be readily accessible by the community without excessive procedural hurdles and the need for legal teams to prepare any case. The ombudsman level is informal in any event and does not have any particular procedure other than a complaint made to the office of the ombudsman, which can be oral, written, by telephone or email or using the case management system complaint form. So the entry level is simple and easy. The procedure for processing the complaint is also informal.
At the reconsideration and independent review panel level, there needs to be more sophisticated procedure. For example, will there ever be cases for reconsideration where parties can make oral applications and give oral evidence? Will those decisions be subject to appeal, and what are the boundaries of an appeal? Will appeals be limited to a rehearing or can new issues be raised? What are the limits on submissions? If this goes to the independent panel proposed, similar issues arise such as the use of oral evidence at hearings, whether this should be entirely based on papers filed or some other procedure?
The final objective as to procedure should be something that avoids “gaming” by use of unduly complex procedure. Time limits should be discussed, but also with the flexibility so that when human errors arise, these are not used to strike out otherwise meritorious claims. On the other hand, there should be times including times for the issue of a final IRP decision, that enable parties to resolve disputes within a reasonable time.


At the ombudsman level, mediation is emphasised as the principal dispute resolution tool. There is no reason why this cannot be used at the reconsideration and IRP levels however. It may not be appropriate for the ombudsman to act as the mediator for those systems, given that the ombudsman may have had previous involvement with the disputes. But there are many suitable mediators available who could be appointed when needed.


I have written this blog to raise awareness rather than to make submissions. I am concerned that much of the discussion about the proposed accountability mechanisms has not considered structures, systems and relationships, and issues such as accessibility and the scope of any such accountability mechanisms.

June 10, 2015

The Community Applications and the EIU-preliminary comments

Filed under: Uncategorized — Chris LaHatte @ 5:12 pm

This is an interim report to advise the community as to progress related to this investigation. At this point I have had a number of discussions with the EIU unit, ICANN staff who have been involved with the unit and assisting with their assessment, a number of discussions with community applicants and with parties opposing, and I have received some very helpful submissions. At this time I am still making enquiries about issues but thought it useful to indicate some of the matters which have arisen.

Because of the confidential nature of the EIU panel and process, there has been a certain amount of uncertainty and unease about how this worked. So I spent time talking to the EIU unit about the way the unit operated and how they obtained information and the way in which they worked with ICANN. It is apparent they take a proactive approach, and look more widely than just the bundle of information provided by the applicant. They also look at public comments and any correspondence on the ICANN website and more general research. They told me they are open to receiving all information, and gather it from many sources to provide background for the applications. There was a comment that the information came in a cloud rather than structured by applicant/objector, and this was then analysed. There is a panel which varied in size according to the workload with a number of levels of review. They have evaluators who work independently, and the result is then reviewed by a project coordinator, then a core team so that there are a number of lengthy discussions about the process. Once a result is drafted it then goes to ICANN for feedback. Their indication to me was that ICANN made comments on wording and did discuss whether the unit was happy with the scores. But they emphasised that ICANN was neutral about the results, and particularly careful to be neutral. There was a strong emphasis on the wording but also an anxiety that the community would be happy with the result.

I have also had some very thoughtful and useful comments from the applicants and from those who opposed community applications. There were a number of criticisms of the high cost of the application together with the legal and administrative costs. Several commented that a community would not have the same financial resources as a commercial applicant. Several commented on the very low number of successful applications, with a 75% rejection rate. A number commented on the ability to game the system by prolonging the application process without justification. Several criticised of the internal procedures within ICANN as permitting undue delay. There was criticism of the overall process stating it was too legalistic and that some of the processes changed while the applications were underway. Several felt they had been affected by delays in accepting change requests. Several of the applicants felt that the process was opaque compared to the earlier legal objection and string similarity processes. They felt that keeping the identity of the panellists a secret lacked transparency. A number of submitters objected to the failure to communicate the process, and the failure to object to what several described as spurious objections. There was also concern about the delay in the procedure compared with the general applications. One submitter commented that implementation was about four times greater than expected. This was attributed to periods being extended, which submitters felt was unnecessary. I am providing these as comments, without having published my analysis on the information provided and the accuracy. Certainly the most common theme is lack of transparency and delay. So these will certainly be issues on which I will pay some attention.

I am providing this is a summary of comments, and I have not yet reached the stage of making recommendations or conclusions as a result of the information which I have gathered to date. But I consider it is important that the community knows something of what has been investigated. I should add that I have had full cooperation from the EIU, staff at ICANN and the community. I hope to have further discussions with parties at ICANN 53 in Buenos Aires and move towards a preliminary report for comment shortly thereafter.

May 28, 2015

New Ombudsman Report on Dot Amazon

Filed under: Uncategorized — Chris LaHatte @ 4:41 pm

Office of the Ombudsman
Case 14-00333
In a matter of a Complaint by Amazon EU S.a.r.l.
Report dated 28th May 2015


This investigation is about an application for a new generic top level domain string for .amazon, by Amazon EU Sa.r.l, a subsidiary of the well known Amazon company known for on line sales of a wide range of products, throughout the world. They sought the use of this string as a natural flow on from the use of the corporate name and trademark in the word Amazon. The application for this string attracted considerable opposition from several South American countries, who channeled this though the Government Advisory Committee (GAC), an advisory committee to ICANN. The GAC then provided advice to the New gTLD Program Committee (NGPC), a committee of the ICANN Board, objecting to the delegation. This advice and objection procedure was enabled by the Applicant Guidebook, created by ICANN and the ICANN Community for the purpose of stating the necessary procedure for applicants for the new strings.
The NGPC accepted the GAC advice and as a result the application for the string came to a halt. Amazon then sought a reconsideration request, as provided in the ICANN Bylaws for such decisions, numbered 14 – 27 in the ICANN system. The resulting decision from the ICANN Board Governance Committee (BGC) who have the delegated power to decide reconsideration requests, declined to do so. As is the current practice, the BGC suggested that if Amazon was unhappy with the result, then they could ask the Ombudsman to review the decision, and Amazon have chosen to do so.


The essence of the complaint is that Amazon have complained that they have been treated unfairly because there is a conflict of interest by the members of the two ICANN committees who have considered the issues and made a number of decisions. Both the NGPC and BGC committees are made up of ICANN Board members, and have some but not all members in common.
The first decision was made by the NGPC to accept GAC advice that the string for .amazon should not proceed. Amazon then used the reconsideration process to ask the ICANN Board to review that decision. The BGC then made a recommendation which was referred back to the NGPC for final action. The effect is that the application for the string was not able to proceed. Amazon however assert that there is a conflict of interest created by the fact that the NGPC and BGC committees of the board have the same ICANN board members. They say that this made the process fundamentally and inherently unfair, and submit that the process precluded any meaningful and objective review of the reconsideration request.


To undertake this investigation I have read the application for reconsideration request and related papers sent to ICANN by Amazon, the minutes of the two ICANN committees and the final reconsideration decision. I have discussed the matter with ICANN and with representatives of Amazon. I have sought comment on specific aspects including a specific request from me, to comment on the knowledge of the Applicant Guidebook. I was concerned that community, and specifically Amazon, as part of the community would have been aware of the terms of the AGB and the procedure. The AGB was issued in a number of iterations, and developed in a policy development process by the community, and the version relevant to the Amazon application, was January 2012. Subsequent to the guidebook being developed and published, the ICANN board specifically created a new committee to deal with the new generic names, which was the NGPC committee. This was created by a resolution on 10 April 2012. This committee then proceeded to deal with various aspects of the program, and in due course the decision from the GAC, which effectively halted the Amazon application.
Amazon note in their submissions to me, that by the time this committee had been created they had already filed their application for the .Amazon string.


The issue which I am required to investigate is whether there is a conflict of interest of such a nature which made the decisions unfair. The issue which flows from this is whether the members of the ICANN committees can reach their decisions having regard to their dual capacity as members of both committees. In other words does membership of the NGPC taint any decisions made subsequently as a member of the BGC? Do the openly disclosed declarations of conflict made by the members of the committees make the decision acceptable?
This is a matter where I clearly have jurisdiction. If there is a conflict of interest in a decision made by the board or committees of the board, then I have jurisdiction to make a recommendation about the procedure and the result. I do not have the power to set aside the result but only to suggest that the matter be reviewed, if the process was tainted by a conflict of interest, if one existed.


It must be assumed that the applicants for all of the new generic top level domains would have spent some time familiarising themselves with the AGB and the process. The procedure for reviewing board decisions by the reconsideration procedure is also well established, although perhaps not as well known at the start of the programme, as the present, after so many new gTLD applicants have used the procedure. The point is that when the applicants made their applications for the new names, they should have also considered the process and the procedure which would be needed, particularly when dealing with adverse decisions.
It would be well known to applicants that any decisions made by the ICANN board were subject to the accountability functions of the ombudsman, reconsideration request and independent review panel. So in terms of fairness, all of the applicants would be aware that the process for dealing with issues of procedural fairness would need to be undertaken using those accountability functions. They have signed up to the process in other words.
Amazon has however been concerned that the NGPC committee was only formed after the applications had been filed. They raise the issue that they did not know that such a committee would be formed, and therefore could not have waived any right to object to this committee and the BGC making decisions on the reconsideration process. The NGPC committee was of course set up to deal specifically with the process, but it is important to note that it is a committee of the ICANN board, which has the power to delegate decision-making in this fashion. The alternative way of dealing with the issues arising out of the new gTLD program would have been to place these before the board as a whole, but obviously this would be cumbersome. So the creation of this subcommittee is not of itself unfair or using an unfair process. So in my view there is nothing problematic in the creation of this committee after the various applications for the new names were made. It was a predictable and appropriate use of the board’s resources.
Amazon state that they could not have consented to any process that did not even exist when they filed the application and therefore could not waive any potential conflict of interest. They submit that there was never any consent, and that they specifically objected to the conflict of interest in the Request for Reconsideration with a specific reference in a letter of 3 June 2014 to the BGC, raising the issues of conflict. They sought specific comment from the BGC, but assert they do not ever receive a response from ICANN. This appears to be one of their principal concerns.
The real difficulty arises because the board is relatively small, and the committees required a minimum number to be able to properly consider the issues. If the decisions had been made by the entire board that would not have resolved any potential conflict of course. But it is also important to note the procedure for identifying potential conflicts and the requirement by board members to complete forms relating to any potential conflict. In addition, they are expected to identify any new conflicts which arise during any discussion and decision making.
It is also important to note that there is a different issue with conflict which arises during a judicial process and decisions made by a corporate board. A difficulty does arise when the board is acting in a quasi-judicial capacity, as with the reconsideration. Then the issue is whether a higher standard of conflict of interest should apply?
The key issue with any conflict of interest is disclosure of the conflict. Some conflicts will require recusal from decision making but others will just require disclosure, but the board member can still vote on the issue. As long as the parties are aware of the decision makers, and their role, and importantly, do not object at the appropriate time to the decisions being made by the board committees. The membership of the committees is an open matter, and available on the ICANN website. So by opting to use the reconsideration process, Amazon were on notice that the membership was common to both. But although they did raise this when making the application for reconsideration, nothing was done by ICANN. If they had asked for a BGC committee to be constituted of non NGPC members to reconsider, then this would have resolved any conflict. In terms of the standard test has this created a perception of bias on the part of the BGC?
I have been troubled by this issue. On one hand the members of the ICANN board are both required to be, and have been transparent in disclosing any potential conflicts of interest. But because Amazon raised the issue of the perception of conflict, without this being addressed, should this affect the fairness of the process? My jurisdiction is to examine the fairness of the process. This is not an abstract exercise, and for me to make a recommendation about the reconsideration decision, I must be able to identify something about the process which is caused a disadvantage to Amazon.
It is important to note that the scope for the BGC to reopen the decision is in very narrow focus in any event. The jurisdiction to set aside a reconsideration decision can only focus on quite specific issues which are set out in the bylaw as follows:-
Section 2. Any person or entity may submit a request for reconsideration or review of an ICANN action or inaction (“Reconsideration Request”) to the extent that he, she, or it have been adversely affected by:
a. one or more staff actions or inactions that contradict established ICANN policy(ies); or
b. one or more actions or inactions of the ICANN Board that have been taken or refused to be taken without consideration of material information, except where the party submitting the request could have submitted, but did not submit, the information for the Board’s consideration at the time of action or refusal to act; or
c. one or more actions or inactions of the ICANN Board that are taken as a result of the Board’s reliance on false or inaccurate material information.
Of course, in the course of a review of fairness, I cannot address the reasons for the decision. But it is important to note in practical terms, that the BGC simply does not have much room to move on setting aside the NGPC decision. This includes the power to reject the application. Provided the BGC adheres to the limits of its jurisdiction, and makes a decision consistent with the specific power, then issues of unfairness will be limited in scope.
It is also important to note that these are decisions of a corporate entity rather than a formally constituted tribunal or court. The ICANN board is made up of volunteers, and relies upon advice from counsel within ICANN, and with some exceptions, they are not qualified or practising lawyers. The necessary standard of conflict of interest and disclosure appears to be of a high standard compared to many other corporate entities. From considering the decisions made from time to time, and reading the minutes of the board it is apparent that the possibility of conflict of interest is frequently examined, and board members do recuse themselves on a regular basis when making decisions.
In this situation, what should the ICANN BGC committee have done when Amazon raised the issue of the perception of bias? The best way to resolve an issue of perception of bias, is to answer this with a robust response, with transparency and openness. In this case, the issue has not been addressed by ICANN. My discussions with ICANN staff have certainly made it clear that they do not regard this as an issue which affects the result. The appropriate way to resolve such a perception of bias would be to recommend a rehearing. I have considered this matter at some length because of the importance of the issue. There are two factors which need to be considered, the first being the issue of proportionality. I have already discussed the different standard for a corporate board of directors from a judicial tribunal. When this is placed in proportion, it seems to me the standard, in proportion, may not require a rehearing. The second factor in combination with proportionality, is that if there was a rehearing, could the BGC, with the constraints on its ability to examine the decision, reach a different result? I am not sure that they would be able to do so, because there is no change in the factual matrix and other issues.
As I have been considering this report, there has been a contemporaneous debate about the accountability functions within ICANN, including considerable criticism of the reconsideration process. It appears to be accepted that there are limitations with reconsideration because of the very specific jurisdiction, which only provides a narrow scope for setting aside a decision. It may be useful to consider some protections to avoid assertions of conflict of interest, if the reconsideration model is to be re-examined and modified.


As a result of this investigation, I consider that the existing structure has some issues, but that this is a matter for perhaps the current examination of accountability structures and the review of the New GTLD programme in the future. Although this comes close to the need for a recommendation for a rehearing, on the balance I cannot therefore recommend this.

Chris LaHatte

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