Minutes | Board Accountability Mechanisms Committee (BAMC) Meeting 16 November 2018

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

Other Board Member Attendees: Avri Doria

BAMC Member Apologies: Sarah Deutsch

ICANN Organization Attendees: Michelle Bright (Director, Board Operations), John Jeffrey (General Counsel and Secretary), Vinciane Koenigsfeld (Director, Board Operations), Elizabeth Le (Associate General Counsel), Wendy Profit (Senior Manager, Board Operations), Lisa Saulino (Board Operations Senior Coordinator), and Amy Stathos (Deputy General Counsel)

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

1. Reconsideration Request 18-9 – Becky Burr abstained from consideration of this item, noting potential conflicts. The Committee received a briefing on Reconsideration Request 18-9, which was submitted by DotKids Foundation (Requestor). Request 18-9 seeks reconsideration of ICANN org's response to the Requestor's request for financial support to engage in the string contention resolution process for the .KID/.KIDS contention set. The Requestor claims that ICANN's rejection of the Requestor's request for financial support violated the , Final Report of the Joint SO/AC New gTLD Applicant Support Working Group (JAS Final Report) and ICANN org's core value to "ascertain the global public interest." Pursuant to Article 4, Section 4.2(l) of the Bylaws, ICANN org transmitted Request 18-9 to the Ombudsman for consideration, and the Ombudsman recused himself. After discussion, the BAMC determined that ICANN org adhered to established policies and procedures in responding to the Requestor's request for financial assistance for engaging in the string contention resolution process; and ICANN org did not violate its core values established in the Bylaws concerning the global public interest. The BAMC noted that while the Final JAS Report made several recommendations, the only JAS recommendations that the Board approved are those set forth in the Process and Criteria documents, which in turn defined the scope and requirements of the Applicant Support Program (ASP). The BAMC discussed that in its 8 December 2011 resolution adopting the Process and Criteria documents, the Board noted that "[t]his process does not follow all JAS recommendations." Instead, the Board, in its discretion, found it feasible and resolved to approve financial assistance in the form of a "fee reduction to $47,000" for qualifying Applicant Support candidates. As the BAMC discussed, all other JAS WG recommendations were considered and not adopted by the Board. The BAMC determined that, because the ASP, as implemented, does not provide for financial assistance for the contention resolution process, ICANN org did not contravene any established policy or procedure when it denied the Requestor's request for such support.

   • Action: ICANN org to notify the Requestor of the BAMC's Recommendation and allow the Requestor the opportunity to file a rebuttal in accordance with the Bylaws.

2. Reconsideration Request 16-11 -  The Committee received a briefing on Reconsideration Request 16-11, which was submitted by Travel Reservations SRL, Famous Four Media Limited (and its subsidiary applicant dot Hotel Limited), Fegistry LLC, Minds + Machines Group Limited, Spring McCook, LLC, and Radix FZC (and its subsidiary applicant dot Hotel Inc.), seeking reconsideration of ICANN Board Resolutions 2016.08.09.14 and 2016.08.09.15 (2016 Resolutions), which directed ICANN organization to move forward with the processing of the prevailing community application for .HOTEL (HTLD's Application) submitted by Hotel Top-Level Domain S.a.r.l (HTLD). The Requestors and HTLD submitted applications for .HOTEL and were placed in the same contention set. As a community-based application, HTLD participated and prevailed in Community Priority Evaluation (CPE), meaning HTLD's Application prevailed over all other .HOTEL applications.

   The Committee discussed that the Requestors challenged the results of the HTLD CPE through various accountability mechanisms including Reconsideration Requests and the Independent Review Process (IRP). While the IRP was pending, ICANN org discovered that the privacy settings for the new gTLD applicant and GDD portals had been misconfigured, which resulted in authorized users of the portals being able to see information belonging to other authorized users without the permission (Portal Configuration). Some of the data accessed belonged to some of the Requestors relating to their .HOTEL applications. The IRP Claimants added a claim in the IRP that HTLD's Application should be rejected because the individual that purportedly exploited the privacy configuration was at one time associated with HTLD. The IRP Claimants argue that HTLD gained some unfair advantage in CPE as a result of the data accessed in the Portal Configuration.

   The IRP Panel determined ICANN to the prevailing party in the IRP, but did not make a finding on the claim relating to the Portal Configuration because it was raised well after the IRP process had commenced and the Board was still considering the matter. The Board subsequently accepted the IRP Panel findings and directed ICANN org to complete the investigation of the issues alleged by the IRP Claimants regarding the Portal Configuration.

   Pursuant to the Board's directive, ICANN org completed an investigation which did not uncover any evidence that the information associated with some of the Requestors' .HOTEL applications was used to support the HTLD application or that it was somehow enabled HTLD to prevail in CPE. Based upon the results of the investigation the Board concluded that HTLD's Application should not be cancelled and directed ICANN org to move forward with the processing of that Application. The Requestors then submitted Request 16-11 challenging the Board's decision, which was placed on hold pending completion of the CPE process review. 

   After discussion, the BAMC determined that reconsideration is not warranted because the Board considered all material information, did not disregard any material information, and did not rely on false or inaccurate material information when it adopted the 2016 Resolutions. Moreover, the BAMC found that there is no evidence supporting the Requestors' claim that the Board failed to consider the purported "unfair advantage" HTLD obtained as a result of the Portal Configuration. The BAMC also found that the there is no evidence supporting the Requestors' claim that the Board discriminated against the Requestors accepting the CPE results on HTLD's Application. There is no evidence that the Board's adoption of the 2016 Resolutions were based on false information or that the Board failed to consider material information in doing so, and the BAMC recommended that the Board deny Request 16-11.

   • Action: ICANN org to prepare relevant materials for Board consideration.

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

Published on 14 December 2018