More wake up call for ICANN not to be silent on Conflict of Interest issues

ICANN is one of unique organizations in the world and it introduced the Multistakeholder model a governance structure which seeks to bring stakeholders together to participate in the dialogue, decision making, and implementation of solutions to common problems or goals.

According to Lawrence E. Strickling, U.S. Assistant Secretary for Communications and Information, and NTIA Administrator, “the multistakeholder process, … involves the full involvement of all stakeholders, consensus-based decision-making and operating in an open, transparent and accountable manner.”

Among ICANN failings is the continuous silence or inaction over alleged Conflict of Interest (COI) issues in it various organizational structures, that have threatened to affect stakeholders directly, including within its gTLD program. During ICANN 43 in San Jose, Costa Rica, Rod Beckstrom, prior CEO of ICANN in his Opening Speech appeared to single out the chair and vice-chair for special concern,  saying

“ICANN must be able to act for the public good while placing commercial and financial interests in the appropriate context,” Beckstrom said. “How can it do this if all top leadership is from the very domain name industry it is supposed to coordinate independently?”

He particularly noted that ICANN had spent over eight months introducing new conflicts of interest and ethics rules adding was “time to further tighten up the rules” in response to “the growing chorus of criticism about ICANN’s ethics environment”. “There is value in having community members with domain name industry experience but it is equally valuable to avoid even the perception of a conflict of interest,” he said.

In ICANN’s board meeting at that time, seven directors including the Chair Dr. Crocker and others excused themselves from a new gTLDs discussion due to conflicts. Such Conflicts have become part of ICANN’s continuously tainting reputation of not handling such issues as that of DotConnectAfrica’s allegations that two board members were conflicted and were not fit to preside over the .africa application.

Another ICANN facet, the GAC is also affected, for instance the BRS Media that runs the .fm and .am ccTLDs and also one of the four applicants for the .radio generic top-level domain in a letter to GAC chair Heather Dryden, claimed that ICANN’s Governmental Advisory Committee has a “direct conflict of interest” over the gTLD.

“We believe these activities to be a direct Conflict of Interest, by the European Broadcasting Union within the New TLD Application process.” company CEO George Bundy wrote

Just recently the ICANN’s independent objector (IO), Alain Pellet, whose office was charged with independence in evaluating the new gTLD program had complained about the .amazon gTLD based on “substantial opposition” from the Amazon region in South America.   However his objection to Amazons controversial .amazon (gTLD) application failed after exposing doubts about the objector’s independence.   Pellet had filed three separate objections against .amazon and its Chinese and Japanese-language equivalents in March 2013.

In a ruling at the International Chamber of Commerce (ICC) on January 27, panellist Luca Radicati di Brozolo rejected Pellet’s objections in a consolidated ruling, saying that there are “justifiable doubts” about his independence.

In a 109-paragraph ruling, he concluded that the links between Pellet and two major representatives of the Amazon community

“lead to justifiable doubts as to his independence in the eyes of the applicant and of the broader public”.  “Given the importance of ensuring the perception of neutrality, independence and impartiality of the office of the IO and of the entire gTLD dispute resolution process, the expert finds that the applicant’s challenge to the independence of the IO must therefore be upheld,” he said.

Amazon appears to have won its first round against its .amazon application by defeating the independent objectors ruling, however ICANN has yet to determine on the GAC objection that had suggested that .amazon be withdrawn.

It is no surprise that DCA also had responded to the ICANN IO’s complaint over its application, though the IO finally decided not to object to DCA, stating that he was “not independent” and said

Therefore, against the backdrop of this apparent incongruity, we are very mistrustful of your intentions as an Independent Objector that should be seen by everybody as an impartial actor even in these matters. Whilst we understand that the Independent Objector can lodge Objections on Limited Public Interest grounds and on Community grounds, we also understand that the Independent Objector does not act on “behalf of any particular persons or entities.” (Section 3.2.5 of the Guidebook) Unfortunately, your intended action gives DCA Trust the impression that you are unwittingly acting on behalf of the African Union Commission and/or UniForum, the organization that you believe is legitimate to manage the .Africa gTLD.

ICANN’s 2.4.3 Code of Conduct Guidelines for Panelists indicates that “the purpose of the New gTLD Program (“Program”) Code of Conduct (“Code”) is to prevent real and apparent conflicts of interest and unethical behavior by any Evaluation Panelist (“Panelist”).

Panelists shall conduct themselves as thoughtful, competent, well prepared, and impartial professionals throughout the application process. Panelists are expected to comply with equity and high ethical standards while assuring the Internet community, its constituents, and the public of objectivity, integrity, confidentiality, and credibility. Unethical actions, or even the appearance of compromise, are not acceptable.

ICANN should also abide by the same rules that it set up for the evaluators, which points that ICANN must be able to overcome any existing impression that there exists a conflict of interest issue that could adversely affect any application.

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