Friday, 15 April 2005

What I want from ICANN on ".travel"

I've gotten some feedback -- both in conversations with ICANN insiders and experienced ICANN-watchers at CFP in Seattle, and in online comments by present and former ICANN board members -- suggesting that my request for independent review of ICANN's decision on a ".travel" top-level Internet domain (TLD) has been widely misunderstood.

The focus of attention seems to have been on my articles on my Web site and blog (starting more than three years ago, so it's odd that they are only now getting noticed), that ICANN staff had promised .travel to IATA as early as 2001.

That deal with IATA (and its current front groups) helps explain ICANN's actions on ".travel" over the years, but it's really the fifth and least important level of my criticisms of ICANN's actions, four steps removed from the most important of my current requests.

My requests were made in great haste, since I didn't know the issue would even be on the agenda for ICANN's meeting in Mar del Plata until that agenda was posted the day before the meeting opened, and less than a week before the Board's decision-making session.

So here's an overview and restatement to clarify what I'm asking for from ICANN, and why, in order of urgency:

First, ICANN has not yet considered or acted upon my request that ICANN itself stay its own actions pending the recommendation of the independent review panel (IRP) on my request for a stay. This is overwhelmingly the most time-critical issue. I fear that any day, if it hasn't happened already, ICANN may sign contracts or take other actions that will be difficult or impossible later to undue or stay, even if the IRP recommends a stay. I plead with ICANN to consider and act promptly on my request for a stay by ICANN. Delay in considering or acting on this request will effectively constitute a "pocket veto" of my request for a stay, deny me any meaningful right of independent review, and deny the IRP any meaningful authority to recommend a stay, as it is guaranteed by ICANN's bylaws.

Second, my request for independent review and stay of ICANN's decision on "travel" pending independent review has not yet been referred to an IRP. Getting ICANN to make this referral, as mandated by its own bylaws, would be my priority once ICANN's action is stayed in the meantime. This is particularly significant because the USA Department of Commerce (DOC) relied on ICANN's promises to provide for independent review when the DOC approved its Memorandum of Understanding (MOU) with ICANN. Failure to refer my request to an IRP is a material breach by ICANN of its MOU with the DOC, and should be cause for the revocation of that MOU.

Third, the process of evaluation, consideration, and "approval" of the ".travel" agreement was not conducted with "the maximum extent feasible" of openness and transparency (as is required by ICANN's bylaws), in numerous respects including: (a) lack of notice of meetings of the ".travel" review panel and other meetings of ICANN and its constituent bodies concerning ".travel", (b) failure to allow observing or auditing of these meetings by journalists or stakeholders, ( c ) failure to release documents and records I have requested, including those considered at ICANN meetings and relied on by ICANN and its constituent bodies, (d) failure to allow me to participate in the Mar del Plata press conference, or to respond to the questions I would have asked, if I had been allowed to participate, (e) lack of 7-day notice of the Board agenda for the Mar del Plata meeting, (f) lack of 21-day advance posting of the proposed policy decisions on ".travel", and (g) lack of any posting of the reasons why these policies were proposed.

This violation of ICANN's bylaw requiring that "ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner", is the sole basis of my request for independent review of the ".travel" decision-making process.

It's important to note that I have not asked the IRP to consider any substantive arguments against approval of a ".travel" agreement, or the reasons why ICANN may have violated its rules. Under ICANN's bylaws, the IRP would have no jurisdiction to consider such questions: an IRP "shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws." My request for independent review raises only one question: Did ICANN follow its own rules requiring it to "operate to the maximum extent feasible in an open and transparent manner". If and when ICANN refers my request to an IRP, this will be the sole question for the IRP.

Fourth, I have made several substantive objections to ".travel", primarily because (a) it excludes individual travellers as stakeholders in the Internet travel namespace, (b) it gives producers and sellers of travel services (the "travel industry") the power to determine the "legitimacy" of consumer advocates, travel journalists, and other NGO's (if other NGO's concerned with travel are eligible at all, which isn't clear) and thus to exclude critics of that industry, ( c ) there is no actual consensus, and little actual support, for the proposal from any major group of actual stakeholders, particularly either from travellers who use the Internet for posting travel stories and photos, or from Internet travel technology companies.

These substantive objections to the ".travel" agreement are independent of the process by which it was "approved" by ICANN, and are independent of whether that decision was the fulfillment of a long-ago back-room promise. If and when my request is referred to an IRP, and if and when ICANN acts on recommendations of that IRP, I hope that ICANN will start the open and transparent bottom-up consensus development process it should have begun years ago. My substantive objections -- and others that might be raised once more information about the proposals becomes public -- could be considered in that process. But that is a long way off, and is not the issue now before ICANN or the DOC.

Fifth, I have reported on unanswered questions about ICANN's process. These questions are unanswered because I was unable to participate in and observe ICANN's process directly. These questions can best be answered by getting ICANN to make the record of its meetings, documents, etc. available to scrutiny by independent journalists such as myself, as well as stakeholders, and to begin an open and transparent bottom-up consensus-development process. That would mean making public the documents, meetings, and records I have requested; responding to the questions I was prevented by ICANN from asking at the Mar del Plata press conference; opening ICANN's process to permit me and other journalists to observe and report on this issue; and permitting stakeholders to participate in the "consensus development" process -- which may raise additional objections once the full record of ICANN's decision-making process is disclosed and can be fully reported and investigated by myself and other journalists and stakeholders.

No one from ICANN (other than the ombudsman) has ever responded to any of my queries about .travel, or contacted me about my allegations. Current ICANN Board member Joi Ito says of my reports:

There have been some severe allegations about foul play inside of ICANN with regards to the .travel sTLD allocation. Staff, counsel and the board have reviewed these allegations.

I'm pleased that some at ICANN are finally taking an interest in my questions about a possible ".travel" deal between ICANN staff and IATA. I believe that ICANN should have paid more attention when I first raised this issue, and should have allowed a public process through which it could have been considered (or might never have arisen) -- as I am now asking the IRP to recommend, or will ask the IRP if my request is referred.

But some people seem to have taken my questions as personal attacks on ICANN Board members, which they have never been meant to be.

Despite my best reportorial efforts, I haven't been able to get enough information from ICANN to tell what role which members of the Board may have played in the staff's dealings with IATA and ".travel". Most ICANN Board "meetings" have been conference calls closed to the press and the public, and I haven't been able to get answers to my questions to ICANN about what the Board knew, and when they knew it.

I have no reason to doubt former ICANN Board member Karl Auerbach when he says that even he, as a Board member, didn't know what the staff was up to on ".travel", but got the impression that something might have gone on behind the scenes:

I was on ICANN's Board of Directors in 2001. During my term I do not remember that there ever was any discussion of .travel during that time. Of course, ICANN does have its inner sanctum - the Executive Committee of the Board - to which I was not privy. Nor were the acts of "staff" particularly visible to the board. In other words, what I am saying is that I don't think there was any such "secret deal" at the Board Level.... I do not have any information to rule out conclusively any understanding by other elements of ICANN.

Nevertheless I had a general impression, based on more of a feeling than on concrete events and facts, that if any new TLD was going to be approved by ICANN, it would be .travel - In other words, although I could not point to it, I did have a sense that the skids for launching .travel were well lubricated.

I hope that eventually ICANN will allow us to find out what happened on "travel". But we're not there yet. Right now, the question is whether ICANN will actually allow any meaningful independent review of whether it has followed its own decision-making rules -- before it has taken irrevocable action to put that decision into effect.

Link | Posted by Edward on Friday, 15 April 2005, 06:37 ( 6:37 AM) | TrackBack (2)
Comments

It sounds like each ".travel" domain must be approved by IATA, is that right? I have not seen anything on Network Solutions yet, so I think it's safe to say ".travel" is not available at this time or must it be registered with Tralliance Corporation? I guess there is a lot I still do not know.

Jack

Posted by: Jack Kennard, 21 April 2005, 12:49 (12:49 PM)
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