ICANN Accoutability Mechanisms - in Name Only
On December 14, 2021, Dot Hip Hop, LLC (DHH) filed an Urgent Reconsideration Request following ICANN staff inaction (for its over four-month delay) of its Assignment Request for the .hiphop Registry Agreement.
Not only did the ICANN Board Accountability Mechanisms Committee (BAMC) decide against considering the Reconsideration Request on an urgent basis, but on its last day of business for 2021, ICANN Org decided to retaliate against DHH for filing the Reconsideration Request in the first place, by informing DHH that it would be “pausing” any further consideration of DHH’s Assignment request pending the outcome of the Reconsideration Request by the BAMC. Its reason—the Ombudsman and BAMC need to conduct due diligence on whether ICANN staff’s inaction of considering the original assignment request violated the ICANN Bylaws.
In short, DHH filed a complaint alleging that ICANN has taken too long to evaluate an assignment request. Rather than work more diligently in completing the Assignment Request, ICANN Org made the decision to punish DHH for exercising its right to challenge ICANN Org’s inaction by pausing any further consideration of the assignment request (thereby compounding its original violation of the Bylaws).
It is worth noting here that in response to a request from the ICANN community, ICANN hired NAVEX Global’s Advisory Services team to conduct a review of ICANN’s Whistleblowing policies for employees and whether ICANN employees were protected against retaliation if and when an employee complained about potential wrongdoing by ICANN staff through the Anonymous Hotline Policy and Procedures. NAVEX was hired to compare ICANN’s Whistleblowing procedures with those of other organizations to bring them in line with best practices and offer actionable recommendations for possible improvements that would elevate the Hotline to a best practice reporting mechanism.
Although ICANN’s policies applied only to its employees, in NAVEX’s published final report on March 21, 2016, one of its key findings (which has yet to be implemented) was that: “Based on common practice, we recommend making Hotline access information accessible to all Business Partners and other appropriate third parties as defined by ICANN to report ethics or compliance matters.” At the time, ICANN staff questioned the need for such a policy. The Community questioned whether this should only apply to “business partners” meaning registries and registrars. All of this was to be considered in “Work Stream 2” by ICANN Org and the community, but that work has been delayed over the past 5 years.
But ICANN Org’s retaliation against DHH for using ICANN’s Accountability Mechanisms provides the single best example as to why a Whistleblower Policy is, in fact, needed for persons other than employees of ICANN. There are many forms of retaliation under the law. In general, however, retaliation involves three main elements. First, it requires the victim to be engaged in a protected activity or to be exercising its legal rights. Second, it requires that some form of adverse action is taken. Finally, there needs to be a causal link between the negative action and the fact that the victim was engaged in exercising its rights.
The Reconsideration Request involving Dot Hip Hop, LLC vs. ICANN Org presents a clear example of wrongful retaliation. First, it is undisputed that the victim, DHH, filed a Reconsideration Request against ICANN staff under the ICANN Bylaws (Section 4.2). The basis of the Reconsideration Request, found here essentially is that ICANN staff’s inaction for over four months on DHH’s Assignment Request violated Sections 1.1(c), 1.2(a), 1.2(b)(iii) and 1.2(b)(v) of the ICANN Bylaws.
Second, on December 22, ICANN sent notice to DHH that it was “pausing” any further action on DHH’s Assignment Request “[to] enable the Ombudsman and the Board to assess the facts and circumstances of the situation. . . while the reconsideration request is considered.” This is about as open and shut case of retaliation as there can be.
Breaking this down even further, rather than take any efforts to attempt to cure its lack of action, ICANN informed DHH that it was pausing its application for the assignment (thereby compounding the time of its inaction). In other words, DHH filed an urgent request with the aim of getting this assignment request moving. ICANN’s BAMC declined considering this on an urgent basis (which will be subject to the next article), but ICANN staff’s reaction is now to retaliate against DHH for filing the reconsideration request in the first place. And worse yet, ICANN is blaming the further inaction on the Board Committee responsible for deciding whether ICANN’s inaction violated the Bylaws.
What kind of message is ICANN sending about its Accountability Mechanisms? These are the same mechanisms that ICANN’s CEOs (both immediate past and current) used to gain its independence from US Government Control. By filing an accountability request in the hopes of having ICANN Org follow its bylaws, ICANN Org has retaliated against the filer by compounding the time of inaction. Does punishing the filer of a Reconsideration Request instill confidence in the mechanisms that are supposed to keep ICANN Org accountable to the Internet Community?
The real shame here is that for me, it is much more personal as one of the biggest advocates of ICANN’s multi-stakeholder model over the past 25 years. In the spirit of full transparency, I am also a minority owner of DHH, the entity that is positioned to operate the .hiphop gTLD. But my connection to this project is much deeper than my partial ownership. Most of the ICANN community knows me and knows my commitment to Internet Governance and multi-stakeholderism. And those who know me well know that I have run the legal, policy and business sides of domain name registries and registrars before. When I went out on my own in 2020, I vowed to only get involved in the operations of a registry or registrar again if I truly believed I could make a difference to the community. I didn’t set out to help run a TLD, but when this opportunity presented itself, I found that I could introduce new players from outside the ICANN world and at the same time serve a traditionally underserved community. And one of the partners of .hiphop, which you will hear a lot about in the future, is an organization that is dedicated to funding projects aimed at underserved communities. This partner has ties within the hiphop community and is excited about making the TLD represent the culture of Hip Hop, a culture and a community that have traditionally been virtually non-existent in the domain name community.
In support of the Multi-stakeholder model, we are bringing in members of the African American and Latino-American communities that have never heard of ICANN or what it stands for. And their first introduction to ICANN is met with bureaucratic delay and retaliation for exercising its rights. Is this the way responsible new entrants into the ICANN community deserve to be treated? Is this the true meaning of accountability?
Accountability Mechanisms were designed to keep ICANN Org accountable to the community. However, as this case painfully demonstrates, ICANN Org has decided to use them as a shield for its own protection, and as a sword against anyone who attempts to actually use them for their intended purpose.
Dear ICANN Community—don’t we deserve better?