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ICANN’s Accountability 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?

By Jeff Neuman, Founder & CEO, JJN Solutions

He has been instrumental in providing policy assistance and advice in the fields of internet governance, intellectual property protection and domain name policy since the mid-1990s. Jeff has served in key business, policy and legal roles in the domain name industry for more than 20 years. The views expressed herein reflect my own beliefs.

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Comments

Why do I care (and why I hope you may want to care) Jeff Neuman  –  Dec 30, 2021 2:28 PM

On one of the industry lists, someone essentially asked me why the ordinary end user should care about this issue.  And that question led me to this response which I wanted to put out there for everyone.

“There are two things that are most important in my life.  My family/friends are, and will always be, my number one priority and the definition of my life. 

Number two is my love and passion for the arts and need to provide a means of self-expression especially for the traditionally disadvantaged or underrepresented community.  In my free time, I am an investor (and producer) of musical theater and other entertainment.  I spend most of my disposable income helping others make art, theater or music.  I have produced/invested in shows that have only been conducted in local theaters to musicals that have premiered on Broadway or the West End.  I serve on the Board of a Local Theater Called The Nextstop Theatre in Herndon, Virginia.

I am a staunch supporter of equal rights for all, whatever gender, race, sexual orientation, ethnicity, etc. a person is or whatever disabilities that person has.  I have a lot of family and friends that have been subject to awful treatment, and have seriously contemplating drastic actions…but all of them could have been or have been helped by the arts, Music, Theater, etc. because it provides for them an outlet for expression, love and hope.

What does this have to do with domain names?

In my professional life, I have run registries, registrars, represented end users, brand owners, registrants, etc. in the domain name industry.  When I went out on my own and started JJN Solutions, LLC, I never intended to become an owner or a central part of another registry or registrar again.  I have already been there and done that. 

But .hiphop for me was different.  When I met the partners and heard what they had to offer and were planning, I realized I had to be a part of it.  I cannot reveal all of our plans or information about the other partners (but I am told that will come very soon), but one of them specializes in investing in underserved communities and helping those that normally would never have access to funds get funded.  Its mission is to uplift those that have been disenfranchised and to provide opportunities for those that have never had them before.  And now they can do so with respect to something that intersects with my passion for the arts, theater and music.

Will we succeed or will this be just another TLD? Who knows? I wish I could read the future. I don’t know, but I am willing to try if there is even a small chance. Right now .hiphop is owned by a no longer existing portfolio registry operator that has treated .hiphop no different than any of its other TLDs, including .Blackfriday, .tattoo, .photo or .juegos.

Now .hiphop can go to an organization that truly cares about trying to make the TLD succeed and in figuring out a way to incorporate the TLD into the traditionally disenfranchised culture. My ownership interest is really small in Dot Hip Hop, LLC compared to that of the other partners.  But if I can be involved in this new movement, than perhaps I can do my part in trying to make this TLD better for registrants that want to use .hiphop as their means of expression.

Perhaps this is too idealistic and corny and perhaps you think I am full of it. But I know many of you all personally and for those that know me, you know this is who I am.

And it is this part of me that feels awful for the way ICANN is treating the perspective new owners that have already passed all of the Due Diligence and technical evaluations. The assignment is getting hung up on some poorly chosen marketing statements by the prior owner. And in an attempt to put all that behind us we have actually BURNED/DESTROYED the NFTs in question. We just want to run the TLD.

Thanks for reading this whole thing.

Auction question Andrew Allemann  –  Dec 31, 2021 12:21 PM

Jeff,

I’m a bit confused and hope you can clear something up. UNR said all 23 of its domains sold in the auction, yet you’ve commented that this transaction was outside of the auction. Did you buy it from the group that was the winning bidder in the auction, or did the sale at UNR fall through?

Auction Response Jeff Neuman  –  Dec 31, 2021 1:17 PM

Andrew,

If UNR stated in a press release that all 23 of the strings sold in an auction, then that was incorrect.  The .hiphop TLD was negotiated directly with UNR outside of the auction process, and I believe well after the auctions for the 22 other strings were completed (though I am not 100% sure of that).

We have no idea when the .hiphop TLD was pulled from the auction process.  I dont know if it was pulled before the auction process started or whether it was pulled because no one bid on it.  We never asked and it never mattered to us.

And we have intentionally not asked about the 22 other strings and what happened to them at auction because it didnt apply to us.  We never even saw the marketing UNR did around the auctions because again it never applied to us.

All of the information about the UNR auctions I learned from ICANN’s questions to us and general public comment well after we filed out Assignment Request.  And we preferred it that way.  We wanted to ensure that our application was considered separate and apart from the other 22.  The less we knew about them, the better from our perspective.

All we know about is our one transaction which was negotiated by me outside of any auction process..

I hope that helps.

Andrew Allemann  –  Jan 2, 2022 5:19 PM

Thanks for clarifying. UNR told me all of the domains sold in the auction, so I have to assume that a transaction for .hiphop fell through.

Greg Thomas  –  Jan 13, 2022 3:07 PM

Jeff:

I can’t say that I’m surprised by the issues that you’re raising here — you may recall that I’ve been pointing out that ICANN’s “accountability” mechanisms are nothing more than a sham for some time now.  It is unfortunate that ICANN has devolved to the point of being pettily punitive in response to complaints that it doesn’t like hearing. My complaint to ICANN’s complaints officer describing ICANN’s blatant violation of its bylaws by acting as an illegitimate and prohibited registrar for purposes of holding “policy-reserved” domain names for profiteering auctions has yet to be answered — despite being told by Complaints Officer Krista Papac on August 5, 2021 that a response would be provided within “a couple of weeks.”  Repeated inquiries have been met by silence and neither the stonewalling in my case nor the hostility you describe are acceptable.  But keep pushing and be of strong courage — a high price will be paid ultimately for this chosen bad-faith approach. 

All the best,
Greg

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