.Africa Update: ICANN promises to create new top-level domain despite ongoing court case

By Kieren McCarthy – The Register U.K.
(The Register is a UK based highly influential and respected source of reliable news globally. www.theregister.co.uk)
DCA News Alert

Internet overseer ICANN will push ahead with a new “.africa” top-level domain, despite having twice been ordered not to because of serious questions over how it handled the case.

Earlier this month, a Los Angeles court refused [PDF] a preliminary injunction against ICANN that would prevent it from adding .africa to the internet and allowing South Africa-based ZA Central Registry (ZACR) from running it.

The decision was just the latest in a lengthy battle between DotConnectAfrica (DCA), which also applied for the name, and ICANN, which decided to disqualify DCA back in 2013 on grounds that were later shown to be highly questionable.

Twice before, DCA has prevented ICANN from “delegating” the name to the internet’s root until its case with DCA was resolved, but this time the judge decided in ICANN’s favor, accepting the argument that it would not cause harm to delegate it, and that DCA’s case is unlikely to succeed because it signed an agreement with ICANN that said it wouldn’t sue the organization.

The decision – which displays a lack of understanding of the internet registry business, making it vulnerable to challenge – is the first time that DCA has not prevailed against ICANN, despite a huge disparity in resources and information. Regardless, its legal case against ICANN will continue.

Bye-bye bylaws

Back in April 2015, ICANN was found by an independent review panel to have broken its own bylaws by refusing to allow top officials to be questioned over their role in the decision to disqualify DCA.

Three months later, we found out why. In a devastating critique of the organization and its staff, a panel of independent judges determined that ICANN had not acted fairly in both rejecting DCA’s bid and then in refusing to hear its appeals in anything but the most cursory manner.

ICANN then invited further criticism when its lawyers unilaterally decided to redact significant portions of the panel’s final report to cover up evidence of ICANN staff’s complicity with the other .africa applicant. That complicity even stretched to ICANN’s head of operations personally editing a letter to make sure it would meet with all of the organization’s criteria, sending it to the applicant, and then receiving it back from them, signed, upon which the organization approved their application.

When its efforts to conceal the staff’s actions were exposed, ICANN’s lawyers then falsely claimed the redactions had been agreed between both parties, even going so far as to repeat the falsehood to ICANN board members.

Upon further investigation, it was revealed that ICANN’s staff had also repeatedly overruled what were supposed to be independent evaluators of the .africa bid in an effort to ensure that DCA was disqualified and its preferred bidder won the rights to the name.

(Months later, ICANN’s staff were also found to have done the same with another applicant – for the dot-words .corp, .inc, .llc, .llp and .ltd – when they literally rewrote independent evaluators reports to provide the grounds for disqualification. The CEO of the company called for ICANN’s general counsel to be fired.)

Despite having lost an independent review, ICANN continued to make it impossible for DCA to be accepted as a legitimate bidder for the name, prompting DCA to take the organization to court.

Sham

In April 2016, that court sided with DCA when it agreed that ICANN had run a “sham process” subsequent to losing the independent review that was “intended to deny DCA’s application based on pretext.” It placed an injunction on ICANN that prevented it from delegating .africa until DCA’s case had made it through the system.

Despite those repeated decisions against it, ICANN continued to use its significant legal resources in an effort to get that decision overturned, and managed to have the court’s jurisdiction moved, requiring DCA to apply again for another injunction.

It was that injunction that the judge decided not to allow to stand, under the logic that it is possible for the .africa name to be redelegated at a future date. While that is theoretically possible, it demonstrates almost no understanding of how the internet registry market functions.

The judge also accepted the argument that Africans were suffering by not having the .africa name under which to register names: a contention that is misleading at best given the fact that every country has its own top-level domain, and that the market for dot-words had exploded to several thousand in the past year. There is literally nothing that the addition of the .africa name to the internet will do to expand Africans’ access to the internet addresses; it is simply a word.

Poor judgment

The judge also accepted the notion that the other bidder – ZACR – was suffering financial losses as a result of the ongoing litigation. A claim that is unverifiable since the spreadsheet on which the judge based his decision was submitted by ZACR under seal, claiming it contained commercially sensitive material. Regardless, it seems unlikely that ZACR is suffering ongoing costs with respect to the .africa name that it could not easily choose to discontinue until the case was decided.

As to the likelihood of DCA winning, the judge argues that a single paragraph within the contract signed between DCA and ICANN (and written by ICANN) that says no applicant is entitled to sue ICANN with respect to decisions made through the process, will prove sufficient to undermine the case.

That also seems unlikely given the degree to which ICANN’s staff and board have already been shown to have broken their own procedures and bylaws in order to give preference to one bidder. Under those circumstances, it is hard to imagine that the contract clause retains its authority.

Regardless, ICANN appears determined to push ahead with delegation of .africa. While it no doubt views that as a victory, the battle over the top-level domain is likely far from over.

The article was first published on The Register U.K.

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