A Complaint about ICANN’s New Complaints Office

ICA has long been on record that it was an inappropriate usurpation of the GNSO’s policymaking role for ICANN Global Domain Division (GDD) staff to be urging legacy gTLD registry operators to adopt Uniform Rapid Suspension (URS) in the course of renewal negotiations for their registry agreements (RAs). That’s because the URS was adopted as an “implementation detail” for new gTLDs, and an ongoing Policy Development Process (PDP) Working Group (WG) is obligated by its Charter to recommend whether the URS and other new gTLDs should become Consensus Policy applicable to legacy gTLDs. In other words, URS at legacy gTLDs is a policy issue for which GDD should not be pursuing its own agenda. We have been joined in that position by both the Business Constituency (BC) and the Non-Commercial Stakeholder Group (NCSG), and all of us previously filed Reconsideration Requests on this matter that were rejected by the ICANN Board.

Recently, in separate conversations with senior ICANN executives, both I and a member of the NCSG were encouraged to use the new complaints procedure that ICANN will shortly be establishing at the initiative of CEO Goran Marby. We were urged to pursue it for the specific purpose of reexamining the previous GDD actions that resulted in URS via contract at .Pro, .Cat,, .Travel, .XXX — and potentially .Mobi (final action pending).. When I inquired how the new complaint process would operate and what relief might be available I was told those details were still being worked out.

Frankly, because the Complaints Officer will report to the General Counsel, who has a fiduciary duty to protect the interests of corporate ICANN, there is some natural skepticism about the final disposition of any initial finding by the Complaints Officer that could create legal liability or financial liability for ICANN. But given assurances by those ICANN executives that this new process would be relevant and responsive to those prior URS complaints, we were willing to wait and see who was appointed as the new Complaints Officer and how the process would work. We presumed that the hire for this new post would be an ICANN outsider, in order to eliminate any prior relationships or internal culture acclimatization that might create a perception or reality of bias; and that the individual would have a strong background in handling corporate accountability and effectively resolving complaints arising from within and outside an organization.

That announcement was made today –

The Internet Corporation for Assigned Names and Numbers (ICANN) today announced that Krista Papac, Director of Registry Services and Engagement for ICANN’s Global Domains Division, has been named as ICANN’s Complaints Officer.

We have serious concerns about this choice — and they have nothing to do with Ms. Papac, for whom we have the highest personal and professional regard.

But how can any individual who has worked for years within ICANN’s GDD be expected to cast prior experience and relationships aside to thoroughly and dispassionately investigate a complaint brought against GDD actions generally, or those of a specific member of the GDD staff?

More specifically, in regard to ICA’s longstanding complaint about imposition of URS through the RA renewal process, Ms. Papac was the principal GDD staff contact for all five of the RAs which we have objected to. So how can she be expected to objectively deal with a complaint about ICANN actions for which she had primary responsibility? In effect, we’d be asking her to investigate her own official actions.

 Again, ICA is awaiting full information about the new complaints process and the available relief it may afford before deciding whether to test it. But given Ms. Papac’s primary responsibility for the very official actions we’d be complaining about, it seems like we would be compelled to ask her to recuse herself from handling the complaint. Whether she would, and who ICANN might then select to handle the complaint, are unanswered questions to be resolved down the road.

Regardless of the answers, today’s development reiterates the need for the Work Stream II Accountability process to recommend modifications that significantly enhance the powers of an independent ICANN Ombudsman reporting directly to the Board.

It seemed clear to us that ICANN should have sought a disinterested person with a strong and demonstrated background in effective corporate responsibility to handle this important new post. That it instead selected an ICANN insider seems like a major unforced error. And that’s our complaint of the day.

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