In previous blogs I have lamented ICANN’s apparent lack of interest in the position of children and young people, despite them being such a substantial constituency of internet users in all parts of the world. Neither does ICANN appear to be seized of the  significance of minors having distinct and important legal rights not enjoyed by or shared with adults.

It is no comfort to know ICANN is not alone in this regard in the constellation of bodies which form what might loosely be called the firmament of internet governance.

New Top Level Domains

In  January 2012 ICANN announced they were going to encourage the domain name system to expand and break free from the “tyranny” of .com, .net and .org. A thousand flowers would be allowed to bloom. An open invitation was issued to anyone and everyone to put forward ideas for new generic top level domains.

The problem is ICANN did not even consider whether this bold step might  have implications for children and young people. Yet they knew or ought to have known that applications were going to be made  for domains which, eventually, would result in web sites being created that were specifically intended to appeal directly to children and young people or would be likely to attract them in substantial numbers.

Anyone who was minded to submit a proposal for a new domain name was pointed towards an Applicant Guidebook.  There is nothing in it which even remotely suggests ICANN accepts it has a duty of care to children. On the contrary ICANN confirmed to me that all applications for all  new domains would be treated identically. Proposals that were obviously child related would be appraised in exactly the same way as applications that were obviously related to such things as pharmacies, banks, insurance and so on.

In England if a general administrative rule is applied inflexibly in such a way as to produce an unjust result for particular groups or classes of individuals the rule itself can often be challenged. I think the present facts constitute just such a case but, sadly, English jurisprudence is not relevant.

Here come the .kids

In the end three entities applied  to establish a new domain that would be called “.kids”. These were Google, Amazon and the .kids Foundation.

Under ICANN’s rules, at the end of the  appraisal process if you have two or more applicants still standing the matter is resolved by an auction. In other words money decides the outcome. Google and Amazon have plenty. The .kids Foundation doesn’t.

However, there is a provision within ICANN’s rules to allow for community-based applications to be made and, if successful, these would “trump” (pardon my use of that word  just now) regular commercial applications. The .kids Foundation was accepted as being eligible to make a community-based  application but in the end the application itself was turned down because it was decided they had not met the criteria. This means an auction will follow and the .kids Foundation will lose.

Having looked at them I am firmly of the view that the criteria the .kids application was judged against showed no understanding whatsoever of the particularities of children’s or young people’s engagement with the internet or of children’s rights but maybe that’s the subject of another blog.

What interested me though was, given ICANN’s historic disinterest in children and young people, on what basis or how would they make any kind of a determination on the .kids Foundation application anyway?

Enter the Economist Intelligence Unit

The short answer is, they didn’t. ICANN sub-contracted the adjudication process to the Economist Intelligence Unit. (EIU)

Knowing what a smart bunch you are I’m guessing your next question is going to be: so what expertise does the EIU have to adjudicate on a matter of this type? I mean when you think about children’s rights, children’s organizations, children online or children anything the EIU is not going to be the first outfit to pop into your well-informed mind. They might be the last but they definitely won’t be the first.

The basis on which ICANN contracted with the EIU to  carry out the evaluation process is set out in commendable detail. Here is an extract from an EIU document.

The  evaluation  process  respects  the  principles  of  fairness,  transparency,  avoidance  of potential conflicts of interest…..

Emboldened by this assurance I asked the EIU the following question:

Are you able to say if any of the EIU staff who assisted with the decision-making process (in the matter of .kids) had any background in matters connected with children’s and young people’s use of the internet or in working with children’s organizations?

The answer was

We generally don’t respond to this type of question. Please contact ICANN.

I also asked if Google or Amazon were customers of the EIU (see above).

Here the answer was

We are not allowed to discuss our clientele.

Answer came there none

I followed the EIU’s advice and contacted ICANN. After a bit of to-ing and fro-ing over a couple of weeks answer came there none, hence this blog.

EIU and ICANN are both at fault

So here’s where I’m at right now: ICANN behaved according to form  – no excuse but no surprise either – but the EIU should have declined to adjudicate in the matter of .kids, either because the criteria they were being asked to use were palpably inappropriate and needed changing or because they (the EIU) lacked the expertise, or both.

Mind you, without the expertise in the first place how could the EIU have known the criteria  they were being asked to use were rubbish? In which case the EIU should simply have refused to enter the space at all saying it was outwith their operational competence. Alternatively ICANN should have satisfied itself that the EIU had the necessary expertise before entrusting it with the task and if they were not satisfied the EIU had the expertise they should have insisted they acquired it. My guess is both organizations are therefore equally and grievously at fault.

We are not the only ones with a beef

Having read a recent article in The Register I learn I am not alone in criticising the way both ICANN and the EIU have handled community applications. According to the recently departed ICANN Ombudsman the application for .gay has been similarly banjaxed. Interestingly,the Ombudsman also says the ICANN Board are not obliged to follow the advice proferred by the EIU. I can imagine why the Board might be nervous about departing from  the EIU’s advice but if the whole process was messed up to begin with that should be the least of their concerns. They ought to be courageous and focus on making the right decision.

A postscript:  Doubtless there are a great many already established websites  in pre-existing domains which appeal directly to children and  young people. Perhaps there are questions to be asked about them also, but that ought not to deflect or detract from raising concerns about  the ownership, management and operation of a whole domain with such an exclusive, predominant or overwhelming focus on minors.