The case study that could kill ICANN

Tomorrow, the new gTLD program will launch. And not before time.

Amid the celebrations from an industry that has waited years for this moment, and a Board and management team congratulating itself on having resisted fierce pressure to scale back its flagship program, it is likely that a two-page letter will go unnoticed.

If history is anything to go by, the letter will never make it past the organization's general counsel. It won't appear on ICANN's website, and its message will fall on deaf ears, disregarded as so many criticisms of the organization are by a staff that wallows in its lack of accountability.

And yet the letter, from the Chairman of the .JOBS Charter Compliance Coalition John Bell, brings with it a difficult and unpleasant truth that, unnoticed, could bring the organization down in just a few short years.

Letter sent earlier today to ICANN outlining the latest issues in the sorry saga of dot-jobs

The letter demonstrates that, despite the fine words and defiant promises made this month – and for many months before - and regardless of a wealth of rules, procedures and policies, ICANN is fundamentally unable, or unwilling, to effectively steward the namespace it has been put in charge of.

Despite repeated and blatant abuse of its rules, despite active community support and information-gathering, and despite repeated efforts through its own rules and procedures to get ICANN to act, the organization has consistently failed to deal with a clear-cut compliance case for more than 18 months.

It has missed deadlines, skirted flaws in its own processes (and refused to recognize those flaws even when pointed out), ignored repeated warnings, consciously refused to act to resolve the issue, spent six months doing a job that takes one day, twice tried to hide its own mistakes, and at the very height of absurdity, refused to address a direct question in a Congressional hearing while sat next to the very person who it itself had accused of "backroom deals".

"ICANN frequently proclaims its dedication to contractual compliance and asserts that the new gTLD program contains multiple stakeholder protection mechanisms," the letter from Bell states, but "based on ICANN's mismanagement of the current dot-jobs TLD dispute, the Internet community is rightly concerned that ICANN's public statements will once again prove to be empty words."

The letter then catalogs a series of recent public statements by CEO Rod Beckstrom, ICANN's legal team, and its senior vice-president Kurt Pritz, all confidently asserting the organization's commitment to compliance.

And then it tears them to pieces.

The makings of a problem

The dot-jobs top-level domain was approved in the second round of TLD expansion of 2004 and went live in 2005. It was a group of extensions that had very mild success (some would say failure) for reasons that no one has ever fully analyzed. As things stand, there are currently around 45,000 dot-jobs domains.

Despite an explicit commitment to making the dot-jobs extension solely the preserve of human resource officers, starting some time in 2009, the company behind it, Employ Media, realized that they would sell many more domains if they were no longer under these restrictions and broke out in a broader field where domains could be purchased and used to cater for regions or industries, such as "sanfrancisco.jobs" or "secretarial.jobs".

And so, ultimately, Employ Media's policy group forced through a change that would allow it to ask ICANN to change its charter. It fed that change into a part of the ICANN machinery that is rarely used, and mostly only for small, technical issues. Before it could be approved by ICANN, however, it was noticed by the industry of companies that exist to provide the broader, more generic jobs market.

In a process that usually sees no more than six comments, ICANN received 247, many of them multi-page documents. Many of the documents made a series of serious accusations about the policy process that was followed, and many claimed they would be negatively impacted by the change. In total, 86 percent of the comments were against the proposal.

Despite receiving more than 50 times the normal number of comments, despite the hundreds of pages of documentation, and a significant majority opposed to the plan, and despite the serious allegations made in the many of the responses, ICANN staff failed to check or verify any of the information, failed to notice that many of the pro comments had come from members of the policy board that had approved the change (and had not recognized themselves as such, breaking ICANN's rules), and wrote a cursory three-page summary giving equal weight to the two sides of the dispute. It recommended that the Board approve the change at its meeting just a few days later.

That was organizational failure number one.

The coalition of companies that opposed the change then used ICANN's Reconsideration Committee to have the Board's decision reviewed. They felt that since that Board had only seen the three-page public comment summary and the staff recommendation to move ahead, that they had not had on sufficient information on which to make a proper determination.

And so followed a six-month process comprising 23 separate actions and hundreds more pages of documents. At the end of it, to the coalition's surprise, the committee (made up entirely of Board members) refused to acknowledge the Board's error and claimed it "did not fail to consider material information available at the time of the Action" – despite the clear evidence otherwise.

That was organizational failure number two.

The Reconsideration Committee itself subsequently received significant criticism in an independent review of ICANN's accountability processes and was featured in two recommendations. One called for an independent review of the Committee and the reconsideration process (it was thought that having only Board review their own decisions was not a very effective mechanism. Coincidentally, as it turns out, the Board has found that it was right 100 percent of the time). The second recommendation stated that "to improve transparency, [the Reconsideration process] should adopt a standard timeline and format for Reconsideration Requests and Board reconsideration outcomes that clearly identifies the status of deliberations and then, once decisions are made, articulates the rationale used to form those decisions" (our emphasis).

With all the information from the Reconsideration process in the Board's possession, even though it was unwilling to acknowledge fault, the Board directed "the President and CEO, and General Counsel and Secretary, to ensure that ICANN's Contractual Compliance Department closely monitor Employ Media's compliance with its Charter".

Staff duly did what they were told and a few months later the compliance department produced a breach notice against Employ Media that was damning and can be summarized in the sentence: "ICANN is concerned that Employ Media and SHRM are not operating and managing the .JOBS TLD in a manner consistent with the spirit and intent of the .JOBS Charter."

It ordered Employ Media to stop. Employ Media decided to go to arbitration.

Once the issue was outside Board purview and in a closed room, suddenly the compliance process ground to a halt again. Organizational failures three and four followed swiftly afterwards.

For reasons that remain unclear, ICANN failed to request an injunction to close or freeze a website at the centre of the compliance concerns – universe.jobs. And so while the arbitration continues – and it was started in May 2011 – the website continues to expand, despite ICANN's compliance team having found it to be clearly in breach.

ICANN produced a weighty response to the Employ Media's arbitration request. And the process moved to naming the three-person panel to hear the case. ICANN responded on 22 July 2011 – nearly six months ago. It has yet to name a third person in the arbitration.

After the .JOBS Coalition reportedly make a huge fuss, calling up ICANN's General Counsel John Jeffrey repeatedly to request what was happening, a tiny note appeared on the relevant ICANN webpage under an asterisk. It reads:

*Status note: ICANN and Employ Media are currently awaiting the confirmation of a third arbitrator by the ICC International Court of Arbitration.

We understand that that process is entirely within ICANN's control and ICANN continues to refuse to provide any reason for the six-month delay in deciding a third panelist.

There are five more organizational failures.

The next one came as part of the documents provided by ICANN. It turned out that Employ Media has already been found guilty of breaching its agreement years earlier and had been warned about it by ICANN's Senior Vice President Kurt Pritz – who oversees registries and registrars but who was at that time also in charge of the compliance department.

That breach was never made public, nor was it mentioned or alluded to in the initial process, or the public comment summary. In short, ICANN either deliberately withheld the information or just plain forgot about a breach of agreement with one of the 22 registries it oversees.

The sixth failure came when, shortly after filing its request for arbitration, Employ Media used another technical, and rarely used, ICANN process to move closer to its goal of opening up the dot-jobs domain.

It requested, through ICANN's IANA staff, that the description of the dot-jobs extensions be changed in the IANA database from "Reserved for human resource managers" to "Reserved to serve needs of the international human resource management". ICANN approved the change.

The seventh failure came when ICANN covered up the reason why it had made the change. The .JOBS Coalition noticed the change and used ICANN's documentary disclosure policy to request the relevant records outlining the change.

ICANN duly released them. With every single detail blacked out. In an accompanying explanation for why it was keeping every single word secret, ICANN claimed legal privilege. And it refused to provide an explanation for the change.

A screengrab from the entirely redacted response

The eighth failure came when the .JOBS Coalition wrote a long letter decrying the continual efforts to withhold any and all information about the situation, the failure to move forward with arbitration, and the failure to reveal Employ Media's previous breach.

The letter concluded: "Given the launch of the new gTLD initiative in which ICANN will be responsible for the oversight of hundreds of new gTLDs, the deficient manner in which ICANN has prosecuted a clear case of non-compliance raises serious doubts as to the credibility of ICANN's governance methods."

It asked for the letter to be published on ICANN's website. It was sent on 7 December 2011. As of 11 January 2012, it has yet to appear. The most recent letter posted went up today, dated 11 January 2012.

And finally, the ninth organizational failure of ICANN over this simple compliance issue concerned the appearance of Senior VP Kurt Pritz at a Congressional Hearing over the new gTLD program on 14 December 2011. Sat two seats away from Pritz was Chairman of Employ Media, Thomas Embrescia, also giving evidence.

As the letter sent today by the .JOBS Coalition notes:

In his prepared testimony at a December 14, 2011 hearing before the Unites States House Subcommittee on Communications and Technology, Employ Media's Chairman Thomas Embrescia voiced his support for the new gTLD program and indicated that he would be an 'interested party' in the expansion round when ICANN eventually launches the gTLD program.

Incredibly, Mr. Embrescia also testified that ‘Could there be bad operators? Could there be people that have some problems? I'm confident that ICANN's multi stakeholder model can serve that purpose. And so I'm here today to support that expansion, as an existing operator…' Given his leadership of a rogue registry operator which ICANN has failed to regulate despite its egregious breach of the .JOBS registry agreement, the Coalition finds it extremely ironic that Mr. Embrescia testified regarding his confidence in ICANN's ability to hold ‘bad operators' accountable.

Thomas Embrescia at the Congressional hearing on new gTLDs

But it got worse. Representative Donna Christensen, who had a copy of the .JOBS Coalition's 7 December letter asked Pritz directly: "There are ready examples of ICANN's inability to implement internal policy. For example, ICANN is currently in arbitration with Mr. Embrescia's organization, Employ Media. The arbitration in the job space has been stalled because of ICANN's inability to meet arbitration deadlines, so how will ICANN ensure that these mistakes and delays won't happen in the gTLD expansion?"

What was Pritz's response, following an 18-month process, having been the man in charge when ICANN previous warning Employ Media of a breach of its contract, and staring at the inclusion of more than 500 new extensions to the existing 22 in just a year's time?

He said nothing.

Culture clash

Today, in a response to Assistant Commerce Secretary, Larry Strickling, ICANN's CEO Rod Beckstrom, promised that ICANN was going to improve its compliance.

Strickling had joined the Federal Trade Commission and ICANN's own independent review team on Whois in raising serious concerns about the organization ability to effective manage compliance with rules covering the fundamental building blocks of the domain name system.

Beckstrom told Strickling: "ICANN is actively engaged in enhancing the ‘culture of compliance' around ICANN's key contractual relationships."

ICANN's previous head of compliance, David Giza was asked to leave when he went public about the lack of resources his department was being given and alluded to interference from the broader members of his part of the organization who happen to maintain day-to-day relationship with registries and registrars.

Currently ICANN has three open positions in its compliance department. The department is now longer under the auspices of the department that runs the registry and registrar relationships.

CEO Beckstrom refused last year to grant the compliance department its own vice presidential role and instead put the department under the control of the legal department and its general counsel John Jeffrey.

So compliance now sits under the same legal department that is in charge of the arbitration process and refuses to explain why it has spent six months choosing a third arbitrator; the same legal department that redacted every single word of Employ Media's IANA request; and the same legal department that has not requested an injunction to prevent ‘universe.jobs' from operating.

What this means

What the two-page letter that no one will read tomorrow says is that ICANN is organizationally misconfigured to deal with the demands of 22, let alone 1,022 Internet registries.

It also demonstrates that the first instinct of the organization is to hide from this fact, even to the extent that it will willfully ignore serious flaws in its systems, and flagrant breaches of contract.

That is why the dot-jobs case study could kill ICANN.