[Gnso-igo-ingo-crp] GAC advice and the IGO PDP

[George Kirikos]

Hi folks,

I hope everyone is enjoying the start of the weekend. Late last night,
ICANN released a decision in the Independent Review of the .africa
matter. See:

https://www.icann.org/news/announcement-2-2015-07-10-en
https://www.icann.org/en/system/files/files/final-declaration-09jul15-en.pdf
http://domainincite.com/18944-new-gtld-program-thrown-into-chaos-as-icann-loses-africa-case

Parts of the decision are redacted, which raises questions of its own
regarding ICANN transparency.

However, the panel had much to say about GAC advice.

1. It ruled that GAC is a constituent body of ICANN (paragraph 101, page 43).

2. ICANN's own witness, Heather Dryden (former GAC chair), according
to the panel, testified that the "GAC did not act with transparency or
in a manner designed to insure fairness" (paragraph 102, pages 43-44).
Rather, Ms. Dryden testified that "we talk about creative ambiguity.
We leave things unclear so we don't have conflict" (paragraph 102,
page 44)

3. Most damningly, the panel said in paragraph 104 (pages 44-45) that
"Ms. Dryden also stated that the GAC made its decision without
providing any rationale and primarily based on politics and not on
potential violations of national laws and sensitivities." This appears
to be quite similar to the "advice" that the GAC has provided to ICANN
and to this very PDP (via its "answers")

4. In paragraph 110 (pages 46-47), Ms. Dryden admitted that the GAC
isn't using sound and reasoned technical or legal analysis to come up
with its advice, but is instead influenced by politics "And that's the
nature of -- of the political process." (with much redacted after that
answer)

5. Ms. Dryden also testified (still in paragraph 110, page 52) that
GAC advice is issued with no rationale:

"THE WITNESS:
Problematic, violate national law -- there are a lot of laws -- and
sensitivities does strike me as being quite broad.
[...]
ARBITRATOR KESSEDJIAN:
Okay. So we are left with what? No rules?
THE WITNESS:
No rationale with the consensus objections. That's the -- the effect."

6. This was not consistent with ICANN's bylaws, e.g. paragraph 113
(page 53), "In light of the clear “Transparency” obligation provisions
found in ICANN’s Bylaws, the Panel would have expected the ICANN Board
to, at a minimum, investigate the matter further before rejecting DCA
Trust’s application."

How does the IRP decision affect this PDP? I believe no deference
should be given to any of the answers or positions provided by the
GAC, unless accompanied by clear and convincing facts and rationale,
along with evidence that there's been substantive deliberations to
arrive at a position. The GAC has not been transparent with how it
reaches its positions, nor has it elaborated on its reasoning to
assist this PDP.

In particular, its 2 page letter of April 29, 2015 does not come close
to the standard that is demanded by ICANN bylaws, and thus should be
given no deference.

In my opinion, the IGOs have (to date) hesitated to participate in
this PDP, perhaps in the misguided belief that they could rely instead
on their ability to influence the GAC behind closed doors. This IRP
decision should be considered a harsh rebuke to that approach. If the
IGOs really want to affect the outcome of this PDP, they should
actively engage with us by providing facts and analysis, rather than
using a "political" approach.

In conclusion, this PDP should not be influenced by politics (points
#3 and #4 above), but should instead be built on a foundation of a
careful analysis of facts and laws.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/