On Feb. 7, 2014 Dr. Stephen Crocker, the Chair of the ICANN Board of Directors, wrote to Asia Green IT System (AGIT), a Turkish company which applied for .Islam and .Halal, conveying ICANN’s latest position on these two applications. The letter is deeply flawed, and shows how ICANN’s handling of the .Islam and .Halal applications is at once an egregious assault on the new gTLD program rules, and a betrayal of whatever trust Muslims around the world might have had in ICANN. ICANN will be well-advised to back track on the ill-considered letter, and get the .Islam and .Halal strings back on the road to delegation.

The ICANN letter to AGIT (who I am consulting for) opens with an acknowledgement of the AGIT’s Dec. 30, 2013 letter to ICANN, and promptly dives into a quick and incomplete account of how the GAC handled the .Islam and .Halal applications. The ICANN letter includes a reference to AGIT’s proposed multi-stakeholder approach (MSA) to the governance of the two TLDs, and cites what it terms “substantial” opposition to the TLDs. The letter then asks AGIT to resolve conflicts between its proposed MSA and the concerns of opponents, mainly the Organization of Islamic Cooperation (OIC). As such, the ICANN letter concludes, the New gTLD Program Committee (NGPC) of the ICANN Board will hold off further consideration of the .Islam and .Halal TLDs until AGIT resolves these conflicts.

The ICANN NGPC and Board had a stark choice to make when they met at various times earlier in this month: either approve the .Islam and .Halal TLD applications, or nix them. As I argued before, ICANN should have approved the applications. Instead, ICANN stymied the applications by kicking the can down the road. By asking AGIT to seek to resolve its “conflicts” with the OIC, ICANN has done a grave injustice to AGIT and the global Muslim population.

Ignoring the facts

The ICANN approach to injustice is based on three legs, the first of which is to ignore the facts. ICANN’s claim that there is a “substantial body of opposition” urging it not to delegate the .Islam and .Halal strings is oblivious of ICANN’s own Independent Objector findings, and the Expert determinations on objections against both .Islam and .Halal. In addition, only 5 countries and the GCC have explicitly opposed the strings.

ICANN also chose to ignore the fact that although the OIC claims that its resolution against the .Islam and .Halal application was passed unanimously, Indonesia supports the .Halal application, Mali supports both strings, and both Iran and Lebanon have written to support the applications and an MSA approach to the management of the strings. Precisely what AGIT has all along been advocating for.

ICANN also chose to ignore the fact that both strings have received the endorsement of the ECO Cultural Institute, an affiliate of the Economic Cooperation Organization (ECO), an inter-governmental organization of 7 Asian and 3 Eurasian countries (including Turkey, Iran, and Pakistan), all OIC members, and with a combined population of over 416 million. Similarly, the Islamic Chamber Research and Information Center (ICRIC) an OIC affiliate with 52 members from as many OIC Member States, and Halal World Institute an ICRIC affiliate, both support the .Islam and .Halal strings, further belying both the ICANN claim that opposition against these strings is substantial, and the OIC façade of a unanimous opposition to them.

In choosing to base its decision regarding the .Islam and .Halal strings on the position of the OIC, ICANN has chosen to ignore the fact the OIC does not, and cannot speak for the hundreds of millions of Muslims in non-OIC countries. India, for example, has more Muslims (177 million) than 39 OIC Member States with the least number of Muslims.

Besides, the countries making the loudest noises against the .Islam and .Halal applications are numerically insignificant with regards to the global population of Muslims. Iran, which supports the .Islam and .Halal strings has a population that is 1.8 times that of the combined population of the 6 GCC countries.

ICANN’s assertion that the body of opposition against the .Islam and .Halal strings is substantial also fails to consider the fact that 54 non-governmental Islamic organizations from 10 countries in Asia, Europe, the Middle East and South America support the strings. ICANN either does not understand what multi-stakeholderism means, or has in the case of the .Islam and .Halal strings, chosen to bury its head in the sand.

Ignoring the rules

The second leg on which the ICANN approach to injustice stands is to ignore rules. According to the Applicant Guidebook (Module 3, pp. 3.3), the new gTLD program has two objection procedures, namely, through GAC Advice, or the formal objection procedure. With regards to GAC Advice, the Applicant Guidebook states that the GAC has three options: i) advise ICANN that the GAC has consensus that an application should not proceed; ii) advise ICANN that there are concerns about an application; and iii) advise ICANN that an application should not proceed unless remedial measures are taken.

Only the second of the above three options for GAC Advice apply to the .Islam and .Halal strings. In its Beijing Communiqué of April 2013, the GAC acknowledged the concerns of some of its members about these strings, and said it was the view of those members that the applications should not proceed. However, this statement does not constitute formal GAC Advice because a consensus was not achieved.

Despite this, the ICANN Board Chair, following a November 4, 2013 letter from the OIC Secretary General wrote to the GAC Chair requesting for additional GAC input on the matter. Although no formal GAC Advice was provided, ICANN went out of its way to coax additional input from the GAC. Not surprisingly, the GAC Chair wrote back, reminding the ICANN Board that the GAC had considered the matter closed since their Beijing Communiqué. Thus, ICANN continued to provide a sympathetic ear to the OIC’s continued opposition to the strings long after the GAC considered the matter closed, and all objections against the strings had failed. This clearly runs against the grain and spirit of the Applicant Guidebook.

Moreover, the ICANN letter seems to have no basis in a decision of the full ICANN Board, or the NGPC. The public record of the Feb. 5 meeting of the NGPC, and the Feb. 7 meeting of the ICANN board do not indicate that they discussed either string in particular. If anything, the wholesale endorsement of the GAC Communiqués from Beijing to Buenos Aires means the ICANN board also should have considered the matter of opposition to the two strings closed, paving the way for them to proceed to delegation. This is re-enforced by the fact that the list of 136 “problematic” (ICANN’s word and quotation marks) strings does not include .Islam or .Halal. ICANN owes it to AGIT, and the rest of the world to provide information on when and where the alleged NGPC decisions on the .Islam and .Halal strings were made.

Tossing the applicant to the wolves

The third and final leg on which ICANN’s injustice against AGIT is based is to toss the applicant to the wolves. By insisting that AGIT resolves conflicts between AGIT’s proposed multi-stakeholder governance of the strings and the demands of those (mainly the OIC) opposed to them, ICANN is abdicating its prerogative of deciding whether or not the applications proceed. This is a dereliction of duty on the part of ICANN, and a breach of its responsibility to ensure that the .Islam and .Halal strings are, like all applications, treated according to the rules of the Applicant Guide.

AGIT is not applying to the OIC for the strings, and as such, the OIC should not be accorded veto powers over the strings, as ICANN effectively has done in its February 7 letter to AGIT. Asking AGIT to try to resolve its conflicts with the OIC is wrong because the OIC:

1. failed to apply for .Islam and .Halal, when it should have if it thought them so important
2. failed to get any significant response from OIC Member States when it called on them to file objections against the strings
3. failed to file any objection against any of the strings
4. failed to secure unanimity on the strings among its Members States, given that some of them have written letters in support of the strings
5. failed to obtain a GAC consensus on their opposition to the strings

The Consequences

ICANN’s decision on the .Islam and .Halal applications is a disservice to Muslims around the world. This is not a matter of just one TLD here and another there, but follows the withdrawal of the .Ummah application (which I was involved in) after ICANN’s insistence on a fundamentalist enforcement of what many considered draconian rules.

When I informed a friend last year of our withdrawal of the .Ummah application, he replied that ” ... most if not all matters relevant to the Islamic Ummah are viewed negatively by the current so-called powers ...”. Although the treatment being meted out to the .Islam and .Halal strings is different from what our .Ummah application experienced, the effect is the same: a serious erosion of whatever trust and confidence many Muslims have of ICANN.

The situation is made worse by the fact that it was an all-non-Muslim ICANN board that took the decision (if that is indeed what happened) to stall the .Islam and .Halal TLDs by ignoring the facts, and bending the rules. Can you imagine what would happen if a .Talmud or .Christian application was illegally denied or delayed by (if you can imagine it) an all-Muslim ICANN board?

All this should also be seen in the context of calls for reform of ICANN and Internet governance, as well as the Net Mundial meeting coming up in Brazil. The treatment meted out so far to the .Islam and .Halal applications is the kind of insensitivity that harms, rather than helps, ICANN’s interests. At a time when practically the whole world is clamoring for a more equitable and inclusive ICANN and Internet governance structure, ICANN should abide by its rules, and not flout them.

Next Steps

But all is not lost. ICANN can, and should correct its faux pas and allow the .Islam and .Halal strings to proceed to delegation. The suggestion that AGIT should talk to the OIC and opponents of the strings is ridiculous, and would help legitimize an illegal request from the OIC. ICANN’s present approach also rewards the OIC for its non-compliance with the new gTLD rules, and punishes AGIT for abiding by them.

For AGIT, the options at its disposal are to use ICANN’s internal processes to seek redress, or to seek justice outside of ICANN. AGIT can first file a Request for Reconsideration of the NGPC decision. The ICANN board will be well advised to do their homework, reconsider the evidence, and come to their senses.

In the event (unlikely, I hope) that AGIT does not achieve a favorable outcome of the Reconsideration process, AGIT can submit the matter to ICANN’s Independent Review Process. If the matter is not resolved by any of these two processes, AGIT can sue ICANN. I hope it does not come to a law suit, but if it would take the law courts to make ICANN follow its own rules, then so be it; in its own interest, and that of over one billion Muslims the world over.