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Board Activities and Meetings

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Minutes | Board Accountability Mechanisms Committee (BAMC) Meeting 5 June 2018

Board Accountability Mechanisms Committee (BAMC) Attendees: Becky Burr, Sarah Deutsch, Chris Disspain (Chair), León Sanchez, and Mike Silber

Other Board Member Attendees: Cherine Chalaby and Avri Doria

ICANN Organization Attendees: Akram Atallah (President, Global Domains Division), Michelle Bright (Director, Board Operations), Franco Carrasco (Board Operations Specialist), Samantha Eisner (Deputy General Counsel), John Jeffrey (General Counsel and Secretary), Aaron Jimenez (Board Operations Senior Coordinator), Vinciane Koenigsfeld (Director, Board Operations), Elizabeth Le (Associate General Counsel), Lisa Saulino (Board Operations Senior Coordinator), and Amy Stathos (Deputy General Counsel)

The following is a summary of discussions, actions taken, and actions identified:

  1. Reconsideration Request 18-1 – Becky Burr abstained from the discussion, noting potential conflicts. The Committee received a briefing on Reconsideration Request 18-1, which was submitted by DotMusic Limited (DML), seeking reconsideration of ICANN organization's response to the DML's request for documents (DotMusic DIDP Request), pursuant to ICANN's Documentary Information Disclosure Policy (DIDP), relating to the Community Priority Evaluation (CPE) process review (CPE Process Review). DML claims that, in declining to produce certain requested documents, ICANN org violated the DIDP and its Commitments established in the Bylaws concerning accountability, transparency, and openness. Pursuant to Article 4, Section 4.2(l) of the Bylaws, ICANN org transmitted Request 18-1 to the Ombudsman for consideration, and the Ombudsman recused himself. After discussion, the BAMC concluded that ICANN org adhered to established policies and procedures in its response to the DotMusic DIDP Request, and therefore reconsideration is not warranted. In particular, the BAMC determined that the ICANN org provided links to all the responsive, publicly available documents in the DIDP Response. The BAMC further noted that for the requested materials that were in ICANN org's possession and not already publicly available, ICANN org explained that those documents would not be produced because they were subject to certain Defined Conditions of Nondisclosure identified in the DIDP Response. The BAMC further determined that ICANN org followed the DIDP process by evaluating the documents that were subject to the Nondisclosure Conditions determined that there are no circumstances for which the public interest in disclosing the information outweighs the harm that may be caused by the requested disclosure. The BAMC approved a recommendation to the Board that Request 18-1 should be denied.

    • Action: ICANN org to prepare relevant materials for Board consideration of Request 18-1, which should include any rebuttal submitted by DML to the BAMC's recommendation.

  2. Reconsideration Request 18-2 – Becky Burr abstained from the discussion, noting potential conflicts. The Committee received a briefing on Reconsideration Request 18-2, which was submitted by dotgay LLC, seeking reconsideration of ICANN organization's response to the Requestor's request for documents (dotgay DIDP Request), pursuant to ICANN's DIDP, relating to the CPE Process Review. Specifically, dotgay LLC claims that, in declining to produce certain requested documents, ICANN org violated the DIDP and its Commitments established in the Bylaws concerning accountability, transparency, and openness. Pursuant to Article 4, Section 4.2(l) of the Bylaws, ICANN org transmitted Request 18-2 to the Ombudsman for consideration, and the Ombudsman recused himself. After discussion, the BAMC concluded that ICANN org adhered to established policies and procedures in its response to the dotgay DIDP Request, and therefore reconsideration is not warranted. In particular, the BAMC determined that the ICANN org provided links to all the responsive, publicly available documents in the DIDP Response. The BAMC further noted that for the requested materials that were in ICANN org's possession and not already publicly available, ICANN org explained that those documents would not be produced because they were subject to certain Defined Conditions of Nondisclosure identified in the DIDP Response. The BAMC further determined that ICANN org followed the DIDP process by evaluating the documents that were subject to the Nondisclosure Conditions determined that there are no circumstances for which the public interest in disclosing the information outweighs the harm that may be caused by the requested disclosure. The BAMC approved a recommendation to the Board that Request 18-2 should be denied.

    • Action: ICANN org to prepare relevant materials for Board consideration of Request 18-2, which should include any rebuttal submitted by dotgay LLC to the BAMC's recommendation.

  3. Reconsideration Request 18-3 - The Committee received a briefing on Reconsideration Request 18-3, which was submitted by Astutium Limited (Astutium), seeking reconsideration of ICANN organization's decision to issue a Termination Notice of the Astutium's 2013 Registrar Accreditation Agreement (RAA) with ICANN org. Specifically, Astutium alleges that, in deciding to issue the Termination Notice, ICANN org: (i) relied on faulty data and misunderstandings; and (ii) failed to adhere to applicable policies and procedures. Astutium also alleges that ICANN org published defamatory statements on its website that impacts Astutium's business reputation. The Requestor asks that ICANN organization "cancel" the termination. The BAMC was informed that on 17 December 2017, ICANN org's Contractual Compliance team received a complaint concerning claimed WHOIS inaccuracies regarding a domain name (Complaint) that is registered with the Astutium. After validating the Complaint to ensure that it was within the scope of the RAA and consensus policies, the Contractual Compliance team attempted to work with Astutium to resolve the issues raised in the Complaint, but Astutium failed to cure the deficiencies. As a result, the Contractual Compliance team issued the Termination Notice. Pursuant to Article 4, Section 4.2(l) of the Bylaws, ICANN org transmitted Request 18-3 to the Ombudsman for consideration. The Ombudsman issued his substantive evaluation of Request 18-3 on 5 May 2018. The Ombudsman concluded that Astutium has not established a basis for reconsideration and therefore Request 18-3 should be denied. (Ombudsman Evaluation.) Upon discussion, the BAMC determined that the Contractual Compliance team: (i) complied with established policy(ies) when it issued the Termination Notice; (ii) did not rely on faulty data or misunderstandings when it issued the Termination Notice; and (iii) did not publish any defamatory statements about Astutium on ICANN org's website. Accordingly, the BAMC approved a recommendation to the Board that Request 18-3 be denied.

      Action: ICANN org to prepare relevant materials for Board consideration of Request 18-3, which should include any rebuttal submitted by dotgay LLC to the BAMC's recommendation.

  4. Reconsideration Request 18-7 – The Committee received a briefing on Reconsideration Request 18-7, which was submitted Afilias Domains No. 3 Limited (Afilias), seeking reconsideration of ICANN organization's response to the Afilias' DIDP Request for documents relating to the .WEB contention set (DIDP Request). Afilias claims that, in declining to produce certain requested documents, ICANN org violated its Commitments established in the Bylaws concerning accountability, transparency, and openness. Pursuant to Article 4, Section 4.2(k) of the Bylaws, the BAMC reviews each reconsideration request upon its receipt to determine if it is sufficiently stated. Upon discussion, the BAMC determined that Request 18-7 is not sufficient stated because the Request does not demonstrate that Afilias is materially or adversely affected by an action or inaction of ICANN org. Under the Reconsideration process, the Bylaws provide that "ICANN shall have in place a process by which any person or entity materially affected by an action or inaction of the ICANN Board or Staff may request … the review or reconsideration of that action or inaction by the Board." (Art. 4, Sec. 4.2(a), ICANN Bylaws.) The Bylaws also provide that the Requestor may submit a Reconsideration Request "to the extent that the Requestor has been adversely affected by "Board or Staff action or inaction." (Id. at Sec. 4.2(c).) The BAMC determined that although Afilias states that it is challenging ICANN org's DIDP Response, Afilias made clear that in reality, it is challenging ICANN org's forthcoming response to the amended DIDP Request. The BAMC took note of the fact that Afilias acknowledges in Request 18-7 that while the amended DIDP Request is pending, and "to the extent Afilias can reach an agreement with ICANN pursuant to the DIDP Reply, this request for reconsideration may become moot in full or in part." The Requestor submitted Request 18-7 only to "preserve its rights to contest the DIDP Response." Accordingly, given that at the time the Requestor submitted Request 18-7, ICANN org had not yet responded to the amended DIDP Request, the BAMC concluded that Afilias has not demonstrated that it has been materially or adversely affected by the DIDP Response. Accordingly, the BAMC summarily dismissed Request 18-7. The BAMC further noted in its summary dismissal of Request 18-7 that the Reconsideration process is not intended to be a mechanism for parties to simply file a Reconsideration Request to preserve their right to contest a future action or inaction that may or may not materially affect the parties. To do so would undermine with the purpose of the Reconsideration process.

  5. Litigation Update – The BAMC received a litigation update.

Published on 11 July 2018

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