17 July 2015

ICANN dot AFRICA IRP: WHO Redacted WHAT In the Final Declaration?

UPDATE June 16, 2016New gTLD AFRICA Litigation: Defendant ZACR Dismissed as a Party.

UPDATE August 14, 2015: see DotConnectAfrica Trust Response to John Jeffrey's ICANN Legal Blog Posting: "... DCA Trust remains convinced that the entire IRP outcome should remain transparent, since no third-parties would be harmed by doing so ... we think that ICANN continues to violate and trample upon DCA Trust's rights as a participant under the new gTLD Program ..."

UPDATE August 1, 2015:.AFRICA IRP Declaration – Clearing Up Some Facts - ICANN - July 31, 2015: One can read the full blog post at the foregoing link by John Jeffrey, ICANN's General Counsel & Secretary, but here are the salient points (excerpts) going forward:
  1. "In retrospect, we could have, and should have, noted on the posted document and on website that it contained redactions and explained the reasons for the redactions."
  2. "The most recent version of the Declaration that we are publishing is a result of our efforts to remove those redactions. There are still some redactions and we have indicated the reasons why they still exist in the revised version."
  3. "This [IRP] decision does not remove the ZA Central Registry from the New gTLD Program, nor is there any part of the Declaration that calls for that result. The impact on ZA Central Registry is that ICANN "will refrain from delegating .AFRICA" pending the outcome of the evaluation process on DCA's application."
  4. "As called for in the [ICANN] Board resolution, ICANN has "resume[d] the evaluation of DCA's application for .AFRICA. The evaluations will be performed in accordance with processes laid out in the Applicant Guidebook."
  5. "To summarize, ICANN's actions in redacting parts of the IRP Declaration at the outset were motivated by our obligation to the community to post the document quickly and the competing, yet mandatory obligation, to respect confidential information while being as transparent as possible." (emphasis added)
----------End of August 1, 2015, Update--------
"20. The IRP Panel may, in its discretion, grant a party's request to keep certain information confidential, such as trade secrets."--ICANN Bylaws, Art. IV, Sec. 3 
"Well I have only seen the redacted version.   I had assumed that the panel had redacted information that was provided to them under confidentiality provisions. I have since learnt it was redacted as part of the staff process for posting.   I am expecting the staff to provide a public explanation shortly as to the process that is being followed here."--Bruce Tonkin, ICANN Board Member (July 16, 2015, emphasis added)

On the verge of the next CCWG-Accountability face-to-face meeting in Paris, controversy and confusion abound about WHO, WHAT, WHEN, HOW and WHY was the DCA Trust IRP Final Declaration published by ICANN on its website so heavily redacted? Even an ICANN Board member (see above) expressed surprise at yesterday's revelation that it was not the IRP Panel, but ICANN staff (or ICANN's attorney) who had redacted any and everything possibly deemed "confidential" without any accompanying disclosure by ICANN, its officers, or staff, to the public reading the "published" Final Declaration that it was not the IRP Panel who had done the "editing and deleting." Unfortunately for ICANN, its officers and staff, a former ICANN staff member,  Kieren McCarthy, obtained an "unredacted" copy of the Final Declaration which became the subject of two articles he wrote for The Register: see Unredacted: ICANN's hidden role in fierce battle over .Africa rights • The Register and Having been slammed and embarrassed, ICANN tells the world: We've done nowt wrong • The Register. Note: see July 26th UPDATE in the last paragraph below.

Finally, ICANN staff attorney Samantha Eisner posted the "public explanation" yesterday on the CCWG-Accountability mail list:

Dear CCWG,
As noted by Bruce [Tonkin], here is a discussion of the redaction process for the IRP declaration. Best, Sam [Samantha Eisner, ICANN staff attorney]

"The Bylaws governing the Independent Review Process allow for the IRP Panel to agree that certain information can be held as confidential. (Bylaws, Art. IV, Section 3.20.) As is a normal part of ICANN’s Independent Review Process (IRP), ICANN and DotConnectAfrica Trust (DCA) entered into a confidentiality agreement during the IRP. The IRP Panel approved and agreed to that confidentiality agreement. Pursuant to the agreement, the parties exchanged information that was to be maintained as confidential for purposes of the IRP. The IRP Panel’s order confirming that agreement states: Documents exchanged by the Parties may not be used for any purpose other than participating in the IRP; (2) documents exchanged by the Parties may not be publicly posted or disclosed in any manner; (3) reference to such documents or information from such documents in the Parties’ written submissions must be redacted prior to public posting. The above agreement, however, does not in any way hinder the Panel’s ability in this IRP to refer to or cite any document and information it finds relevant and/or necessary for its determinations and declarations. The Parties themselves will ensure that any confidential information or document referred to or cited by the Panel in its determinations and declarations are appropriately redacted where necessary. (Procedural Order No. 4, Paragraph 2, at https://www.icann.org/en/system/files/files/procedural-order-4-25sep14-en.pdf.) ICANN is complying with the terms of that confidentiality agreement. In addition, because our transparency obligations dictated that we post the Declaration as quickly as possible (which we did the next day following receipt), all non-public information provided by either party under the confidentiality agreement was initially redacted by ICANN’s Counsel so that ICANN could publish it. ICANN’s counsel immediately began diligently reviewing all ICANN materials exchanged in the proceeding to ensure that we publicly share as much information as we can quickly as possible. ICANN will post a revised Declaration and transcript reflecting the removed redactions. We have requested that information previously marked as confidential from DCA and other parties who are impacted be released publicly to complete the public record. Those parties impacted are not obligated to make those documents public. At the conclusion of that process, ICANN will again publish a further revised Declaration and transcript. Information contained in the materials produced in the IRP that is currently redacted include some of each of the following types of documents: 1) confidential internal GAC emails and information, 2) DCA’s documents, 3) ICANN confidential correspondence with third parties (including other applicants), and 4) ICANN internal correspondence. As has been the case throughout the New gTLD Program, correspondence or documentation regarding application specific information has been typically treated as confidential. This includes all letters of support or non-objection submitted with applications or in response to clarifying questions from the GNP to the applicants. Accordingly, all such information relating to ZACR’s application for .AFRICA was appropriately identified and subject to confidentiality in the IRP, and therefore initially redacted in the final IRP Declaration. As noted above, we are evaluating the confidential treatment of this information in this matter, and may release some, or all, such information currently redacted." (emphasis added)

The problem is that the above disclosure should have been made at the time ICANN staff published its own "redacted" and "self-edited" version 1.0, rather than leaving everyone with the misleading impression that the IRP Panel had itself decided to "redact" sections so marked in the "edited" version ICANN staff published. 

Who now believes ICANN would have made the above "confession" but for Kieren McCarthy obtaining and disclosing the "unredacted" contents? UPDATE (July 26, 2015): Kieren McCarthy has written a 3rd article that answers that question: ICANN further implicated in .Africa controversy • The Register"... on 15 July at 0700 PT, we published our story outlining what was contained in the unredacted version of the panel's report. Six hours after our story hit the web, ICANN's lawyers sent a two-paragraph letter to DCA saying it wished to review the redactions it has made to the final report. "ICANN now wishes to un-redact these materials and requests your agreement to do so, which ICANN will do so long as any other affected parties also agree," it read. The next day, ICANN's Eisner seemed to hint that the redaction-review process had started much earlier ..." (emphasis added).


Caveat Emptor!

No comments:

Domain Mondo posts: