A Moral Victory: ICANN’s response to African Union
June 14, 2012
“ICANN is not able to take actions that would go outside of the community-established and documented guideline of the program
At the end of the ICANN-42 Meeting in Dakar, the African Union (AU), supported by a group of ‘African Internet Experts’ acting under the auspices of an ‘African Ministerial Round-Table’, had submitted an official Communiqué containing 12 requests to the ICANN Board of Directors, which the ICANN Board had committed itself to providing a written response to all the requests made by the AU and the African Ministerial Round-Table.
1 –The AU’s Request and DCA’s Opposition at Dakar, Senegal:
The first request on the List tabled by the AU-supported African Ministerial Round-Table was to: “Include (.Africa, .Afrique, .Afrikia,) and its representation in any other language on the Reserved Names List in order to enjoy the level of special legislative protection, so to be managed and operated by “the structure” that is “selected andidentified,by the African Union “. Interalia below
As an initiative that always had the intention of applying to ICANN for the DotAfrica gTLD namespace, the Yes2DotAfrica Campaign had strenuously opposed the idea of reserving the DotAfrica name for the benefit of the AU which would immediately make the name unavailable during the new gTLD application round that opened on 12th January 2012.
We believed that the idea behind the request was to take the DotAfrica gTLD resource outside the ICANN new gTLD programme where it would be separately negotiated and delegated to a ‘structure’ to be ‘selected and identified’ by the African Union, which would be against the prescriptions of the approved Applicant’s Guidebook that already specifies the Top-Level Reserved Names (See Section 126.96.36.199.1 ‘Reserved Names and Other Unavailable Strings’).
Furthermore, the AU request would have necessitated a change to the Guidebook, and also posed a huge technical and financial risk to any genuine applicant(s) who have already made necessary preparations to apply for the DotAfrica gTLD, unless such an applicant hoped to be part of the ‘structure’ that is ‘selected and identified’ by the African Union.
Since the Yes2DotAfrica campaign had singularly dissociated itself from any proposal that would determine the fate of DotAfrica outside the ICANN new gTLD programme, we had engaged with ICANN Board and leaders during the Public Forum meeting and expressed our opinion on the matter, so we were very confident that ICANN would not approve the extraordinary request. (See ‘DCA’s Executive Briefing Note following its Engagement with ICANN Leaders at the ICANN-42 Public Forum Meeting at Dakar, Senegal – October 27th 2011‘) and here.
2- ICANN’s Rejection of AU’s Official Request:
The official answer that was signed by ICANN’s Board Chairman Dr. Stephen Crocker and addressed to Elham M. A. Ibrahim, AU Commissioner for Infrastructure and Energy, noted inter alia: “ICANN is not able to take actions that would go outside of the community-established and documented guideline of the program to provide the special treatment you have requested. ICANN does wish to explain, however that protections exist that will allow the African Union and its member states to play a prominent role in determining the outcome of any application for these top-level domain name strings.” (See link here for full document ).
Our reading of the ICANN’s position is that the documented guideline (Applicant’s Guidebook and the process of the current new gTLD application round) must be rigorously followed in determining the eventual fate of the DotAfrica gTLD, and no ‘special treatment’ would be granted to the AU who have asked to be allowed to enjoy a ‘special legislative protection’ to enable it take full control of DotAfrica gTLD.
3-Public Vindication of DCA’s Position on DotAfrica: (A Moral Victory)
The official ICANN response that was also copied to ICANN’s President/CEO, Rod Beckstrom and Monsieur Moustapha Guirassy, Telecommunications and ICT Minister of Senegal, would remain a strong pubic vindication of DCA’s unwavering position on the matter of DotAfrica. It further justifies DCA’s independent approach to the DotAfrica initiative, and also underscores why the Yes2DotAfirca campaign has now appropriated the ICANN decision as a moral victory and resounding encouragement to continue with the pursuit of its DotAfrica vision.
We believe that this is a major setback that would serve as a portentous omen for what lies ahead for those who had wrongly calculated that the AU’s diplomatic influence (as an inter-governmental organization) could be used to ‘callously’ to make such an extraordinary request to impose on ICANN, simply to achieve the whims of a special interest group who wanted to hijack DotAfrica and take it outside the new gTLD programme for delegation.It underscores the absolute necessity for the ‘judicious use’ of power, and for it not to be ‘justifiably abused’.
4- ICANN’s Reference for a Relief to the AU:
The Yes2DotAfrica campaign fully understands that the ICANN rejection of the AU request is not the end of this long-running battle. Actually, the ICANN response to the AU contained important clarifications referenced from the Guidebook regarding protections for geographic names, and suggested steps for the AU to use both the
- GAC Early Warning Notice, and the
- Formal objection processes to be lodged at, and administered by the international Dispute Resolution Service Provider; and further cited
- “Community Objection process, for cases where there exists substantial opposition to the gTLD application from a significant portion of the community to which the gTLD string may be explicitly or implicitly targeted.”
We already believe that this statement from ICANN’s official response to the AU shall be used in addition to the GAC Early Warning Advice mechanism to object to DCA’s gTLD application on community grounds. Indeed the Guidebook already suggests that a formal objection may be filed against any application on community grounds so we are not really surprised by ICANN’s recommendation to the AU. Even so, we remain confident that any such objection against DCA will not prevail – including their possible loss (no refund) of any advance payment fees for the costs of the dispute resolution proceeding – because of many mistakes that have already been committed by the AU advisers within the so-called ‘AU DotAfrica Task Force‘.
Part II – A Pattern of Unforgivable Mistakes
1- An Extra-Ordinary Process to decide on a registry operator
The main unforgivable mistake is that of instituting an extraordinary process to decide on a registry operator for DotAfrica in a process that was not over-sighted by ICANN, the only governance authority empowered under the new gTLD programme to delegate approved gTLD’s to registry operators. One important objective of the ICANN new gTLD programme is to ‘diversify’ the ownership of gTLDs based on open competition.
It is rather obvious that the selection of a registry operator for DotAfrica without the involvement of ICANN is not only anti-competitive – since the ‘endorsement issue’ discouraged many prospective international registries from applying for DotAfrica – but was also aimed at usurping the functions and responsibilities of ICANN in an arbitrary manner; something that would be interpreted as an attempt to frustrate the ICANN new gTLD programme objectives regarding DotAfrica. We believe that these issues will come up during the Dispute Resolution Service and should also play a role in the final decision to award the mandate for the administration and operation of the DotAfrica gTLD registry. These would be in addition to the legal questions that would evidently arise regarding ‘legal rights’ over DotAfrica.
2- The Looming Threat of Community Objection:
It is important at this juncture to also comment on the issue of ‘Community Objection’ that was referred to in the ICANN response to the AU request. DCA believes that for the ‘Community Objection’ to be valid, there must be a compelling case (with proof beyond reasonable doubt) that there is a strong relationship between the ‘community’ and the applied-for gTLD.
Evaluation questions 19 – 20 of the ICANN Applicant’s Guidebook relate to a community-based designation. The applicant is required to provide”
a) the name and full designation of the community that the applicant is committing to serve
b) a description of the community-based purpose of the applied-for gTLD, and
3- The AU RFP:
From a close reading of the AU RFP, it is evident that the AU and the ‘Structure’ that it has ‘selected and identified’ have community designs on the DotAfrica gTLD; the reason they will use to base and justify their ‘Community Objection’ for DotAfrica according to the suggested advice they have received in the ICANN official response to their very extraordinary request. Additionally, the AU RFP for the Operation of DotAfrica expressly indicates that the winning bidder should note that:
a – “this is a geographical TLD which should be run on behalf of the community”, and
b – “Collaborate with the Internet community on the project” and
c – “Lead the effort to create an active domain name community in Africa“.
4. The Selection & Identification of a ‘Structure’ to apply for DotAfrica by the AU:
This ‘structure’ seems to presently comprise of the :
- African Union representing African Governments
- UniForum as ‘Registry operator’, including ZA-Domian Names Authority, representing the Country Code for the South African Government
- African Top-Level Domains (AFTLD), representing Country Codes for African Governments
- DotAfrica Steering Committee, representing the above three (3) entities
- African Internet Community represented by the above 4 groups, less than 300 people
Instead of separating itself from the process, and simply endorsing prospective eligible applicants to prepare and submit independent applications to ICANN for DotAfrica gTLD,
the AU has now mainstreamed itself as part and parcel of a particular ‘structure’, and has signed an agreement with UniForum as registry operator It is clear that this was not a straight-forward endorsement, despite efforts to portray it as such.
5 – The illegitimate Self-Endorsement
We now believe that the AU DotAfrica Task Force was more interested in ‘selecting UniForum as registry operator’ to serve the purposes of the structure that they created for themselves.
Even if it is an endorsement, the AU cannot engage in ‘self-endorsement’ by endorsing the same structure that it is part of. Self-endorsement raises questions of legitimacy, coupled with the fact that the endorsement would have been denied to other legitimate applicants that are eligible to bid for the DotAfrica gTLD and satisfy ICANN’s eligibility requirements in a straight-forward manner based on Guidebook provisions, but now deliberately barred (or exlcuded) from bidding because of the issue of endorsement.
This selection and identification of a ‘structure’ to apply for DotAfrica is therefore a wrong and very elastic interpretation of the AU’s power to endorse the DotAfrica geographical TLD.
6. AU’s Agreement with UniForum – a Pandora’s Box:
a- Agreement to operate a Geographic gTLD registry for the use of the ‘Community’
The revelation that the AU already has an agreement with UniForum was conveyed via a tweet by Esam Abulkhirat of the African Union, but not through any official announcement. The twitter message reads: “AU commission has signed dot Africa Agreement with ZA CR officially’ Viva Africa!
This implies that it is not just an endorsement letter received by UniForum, but the implied AU Policy oversight, plus community intentions would have been indicated in that agreement to ensure that UniForum will operate the geographic gTLD registry for the use of the ‘Community‘ that the African Union has described based on the ‘structure’ they have ‘selected and identified‘.
b- Particular dictates of AU and Community over UNIFORUM
DCA believes that it is not an agreement that UniForum will be proud of, since the Policy Oversight of both the Community and the AU would have been woven into the agreement. Since the AU has already included itself within the ‘structure’, and further mainstreamed itself into that particular proposal;
hence they tried to use a formal agreement to bind UniForum to their particular dictates regarding intended Community Use and Ownership of DotAfrica gTLD.
c- Subject to an ‘open’ objection process
all these issues to come to the fore and could open up the Pandora’s Box for the AU and UniForum
d- Violation of ICANN new gTLD registry agreement
We already think that the ‘relationship’ will prove to be very problematic and unsustainable since it would invariably tie the hands of UniForum in such a way that it would not be able to operate the registry according to the ICANN new gTLD registry agreement; or be forced not to abide by its agreement with the AU and its possible ‘community restrictions’. Whichever way, UniForum will find itself in an impossible dilemma – proverbially caught between the rock and a hard place!
e- AU presiding over Community objection without having a de facto right or de jure ownership
It is therefore obvious that the eventual fate of DotAfrica gTLD will be determined by the outcome of an expected ‘Community Objection’ to be lodged by the AU (with the full cooperation of the members of its ‘structure’) and other abstruse legal questions and determinations to be made over ‘rights’. The fact that ICANN did not approve the AU’s request for special legislative protections over the DotAfrica name already implies that:
that make up ‘Africa’; the AU member states.
f. DCA’s testimony of ethical and conflict of interest issues
Though it is premature to comment on DCA’s defense strategy at the Dispute Resolution Service Provider if a ‘Community Objection’ were filed against its DotAfrica gTLD application, but suffice it to say that it would be based on the same ethical and conflict of interest issues that we have been voicing all along, hoping that we can make an honest case and be heard. DCA remains confident that truth and justice will eventually prevail over DotAfrica.
“Internet freedom is in the international crosshairs of a large group of nations, including many of the world’s most undemocratic governments, seeking to give themselves control over Internet policy. Their target is the creation of new international legal rules that would allow them to legitimately impose censorship and monitor users’ online activities”.