Wednesday, 18 May 2005

Continuing the discussion with ICANN on ".travel"

I'm not sure what to say to someone (in this case, IANN's General Counsel and corporate secretary, John O. Jeffrey), who claims not to understand how excluding a journalist from a press conference and ignoring their questions, while permitting other journalists to attend and responding to their questions on the record, "personally materially affects" the excluded journalist (in this case, myself) and falls short of "the maximum extent feasible" of openness and transparency. But since he asked, I've tried to explain, as follows:

From: "Edward Hasbrouck" edward@hasbrouck.org
Organization: The Practical Nomad
To: "John Jeffrey" jeffrey@icann.org
Date: Tue, 17 May 2005 17:39:00 -0700
Subject: Re: Pending requests for independent review and stay

Thank you for your e-mail of 12 May 2005 "to formally acknowledge receipt of your messages, and to let you know that your comments have been received and considered by ICANN's Board and staff."

Since your message to me is not yet posted on the ICANN Web site, I have posted it in full at http://hasbrouck.org/blog/archives/000582.html . My requests to ICANN, and other articles explaining the background to them, are linked from http://hasbrouck.org/icann/ . My specific requests related to my request for independent review are at:

http://hasbrouck.org/blog/archives/000554.html
http://hasbrouck.org/blog/archives/000553.html
http://forum.icann.org/lists/stld-rfp-travel/msg00033.html

In general, you seem to confuse three things about the terms "open" and "transparent", as used in ICANN's bylaws:

First, you seem to imply that the Bylaws are satisfied as long as ICANN provides some opportunities for public input. That ignores the plain meaning of the words "maximum extent feasible". The question for ICANN, for you as a corporate officer, and now for the Independent Review Panel (IRP) is not whether "some" opportunities for public input were provided, but whether any or all of the actions that were requested, but that ICANN decided not to take, (a) were feasible and (b) would have resulted in greater transparency and openness

I think it unlikely that the IRP will find, on review of all of the documents and records that would have been responsive to my requests, that no portion of any of those documents or records could feasibly have been provided to me or to the public. I think it more unlikely that the IRP will find that ICANN could not feasibly have provided even a list of the documents and records responsive to my requests. I think it most unlikely that the IRP will find that it would not have been feasible to respond to any of my requests for access -- even to inform me of a decision to deny my requests in their entirety -- until more than a year after my first such request, which was made 30 April 2004 [and] first answered by ICANN (although only partially) in your message of 12 May 2005.

And I presume the IRP will find that it would have been both "feasible" and "fair" to allow me [as] a journalist to participate in, or to audit, the press conference held by ICANN in Mar del Plata on 5 April 2005, as I had specifically requested. On its face, the argument that "fairness" required ICANN to exclude a disfavored journalist such as myself, and my questions, from its press conference, appears absurd.

Second, you seem to equate "open" with "transparent". These terms, and the concepts they describe, are related. But they are not the same. In the absence of a requirement that ICANN decision-making also be transparent, "open" could perhaps be read as "open to input" (by the public to ICANN, in one direction only). But "transparent" clearly implies "not hidden" and "capable of being observed". No amount of openness of ICANN decision-making to public input could render a wholly or partially closed process compliant with ICANN's bylaws.

Third, you seem to presume the authority of ICANN, notwithstanding the bylaw requiring the maximum extent feasible of transparency, to make promises of confidentiality to third parties submitting information to ICANN.

You cannot "bootstrap" the legitimacy of a secret decision making process by arguing that fairness required that information be kept secret, after promises of secrecy had been made to third parties. No such promise of secrecy could permissibly have been made by ICANN, unless it would not have been feasible to conduct decision making without such promises.

Under the present ICANN bylaws, it is not sufficient to legitimize promises of confidentiality to argue that closed decision making, or decision making informed by information that could be obtained under promise of confidentiality, would result in different decisions, or would be in your opinion preferable, to open and transparent decision making.

If you wish to make such arguments, I suggest you make them as part of a proposal to the Internet community to modify ICANN's bylaws. I doubt that a bottom-up consensus would develop in support of such an amendment to ICANN's bylaws to reduce its commitment to openness and transparency. But in the meantime, your obligation as an officer and agent of ICANN, and ICANN's obligation both under its bylaws and under its contractual commitment to the USA Department of Commerce, is to the maximum extent feasible of openness and transparency -- without exception for privacy or confidentiality.

The plain language of ICANN's bylaws requires ICANN to operate in a fishbowl, and to accommodate requests for access to the maximum extent feasible. No third party should have any reasonable expectation of privacy in information submitted voluntarily to ICANN. If any officer or agent of ICANN has purported to make a promise of confidentiality with respect to such information, they have done so without authority under ICANN's bylaws, and their purported promise is null and void.

If it is necessary, in fairness to such a third party, to honor such a "promise" (invalid but sincerely believed and relied on by the third party), then ICANN needs to start over with the process of developing consensus on the issue in question, thorough a process that does not rely impermissibly on information submitted under "promise" of confidentiality.

You assert that the requirement for notice and a public forum on proposed ICANN policies "applies only to actions that will create binding new generally-applicable ICANN "policies", not to operational actions such as the approval or amendment of bilateral contracts." And you note that "ICANN gave you this same answer when you raised this same issue in your request for reconsideration submitted in 2001 opposing the delegation of .AERO."

The fact that ICANN made the same claim previously did not make it correct then, and does not make it correct now. Keep in mind that I was unable to obtain independent review of ICANN's "decision" on my previous reconsideration request -- which I desired, to which I was entitled under the ICANN bylaws then in effect, and which I would have requested had it ever been available -- because ICANN never fulfilled its obligation under those bylaws to appoint an independent review panel.

Because ICANN (or any entity) can "delegate" only that authority which it possesses, ICANN cannot evade the requirement that it operate openly and transparently, or its other procedural rules, by delegating authority to entities that do not follow those rules. Any delegation of authority by ICANN is subject to the limitations on ICANN's own authority (both ICANN's bylaws and ICANN's contractual obligations to the USA Department of Commerce), including the requirements for the maximum extent feasible of openness and transparency.

ICANN itself has explicitly and repeatedly described the ongoing process of decision-making on new TLD's (including decisions on .travel and .aero) as a "proof of concept", i.e. as part of a policy-development process and not purely "operational".

With respect to the late posting of the agenda for ICANN's meeting in Mar del Plata, you say that "it is not clear how this could have prejudiced you." This suggests to me that you are not clear on the value of openness and transparency, and specifically its importance for journalism. Without knowing what was to be discussed, my reporting was prejudiced both by my inability to attend and report on the meeting in person, and by my inability to conduct research and interviews, in advance of the meeting, with knowledge of the topics to be discussed.

You say that "we question whether you personally have been "materially affected" by ICANN's decision to delegate either .AERO or .TRAVEL.," and you ask that I "describe why you believe that you were personally "materially affected" by the delegation of .TRAVEL?"

It's not clear who you mean by the plural "we", since I have as yet received no response to my request for notice of any meeting by any ICANN body to consider my requests. I would be materially affected both as a ".travel" stakeholder and as an Internet travel journalist by ICANN's decisions to authorize the delegation of decision making on ".travel" policies, and by the lack of openness and transparency in the process by which those decisions were made:

(1) Any violation of openness and transparency by ICANN is "per se" harmful to the entirety of the Internet community, without the need to demonstrate specific harm. It is impossible to know in what ways decision-making might be influenced by openness and transparency, or the deficiency thereof.

(2) As a journalist, my ability to report on ".travel" decision making was and continues to be materially affected by my inability to attend, observe or audit the relevant meetings, to review relevant documents and records (which have been reviewed and/or [created] by ICANN in the course of its decision making), to identify ICANN decision makers or participants in meetings, or to know as far in advance as is known to ICANN itself what topics and policies are to be considered at ICANN meetings. And my process of investigation and reporting would have been different if I had received timely notice from ICANN that my request of 20 April 2004, or any of my subsequent requests, had been denied.

(3) My ability to do my job, as an investigative journalist whose reporting has centered on the use of the Internet by travellers and for travel-related purposes, was directly and materially affected by my exclusion, despite my explicit request, from ICANN's press conference in Mar del Plata on 5 April 2005, and ICANN's continuing failure to respond to the questions that I would have asked at that press conference.

It is particularly damaging to me professionally and competitively, and to my reputation as the journalist who has covered travel-related TLD issues in the most detail, that I was excluded from the press conference while other journalists were permitted to participate, and their questions were responded to by ICANN officers including the Chairman of the Board.

[4] As an Internet user, traveller, and consumer advocate for travellers, I am a stakeholder in ".travel" decision making. (In the portions of its application that have been made public, Tralliance Corp. argued that consumers of travel services would be the beneficiaries of ".travel", thus explicitly recognizing our interest in ICANN's decision on this application, whether or not we intend to try to register ".travel" domain names.) While I was able to submit comments based on the extremely limited and partial record which ICANN chose to make public, it is impossible for me to know what additional issues I would have wanted to raise in my comments if I had access to all of the documents, records, and meeting[s] that I had requested.

[5] As a member of the Internet community entitled to participate in ICANN's "consensus-development process", I have an interest in knowing by what process ICANN makes decisions, which was and is impaired by my inability to observe or audit those meetings, to review records of them, or even to know when they were held and who participated in them.

You say that, "We understand that you have indicated a desire to seek independent review of the ICANN Board's decision to approve the delegation of .TRAVEL." You appear to have misunderstood the plain language of my request. I have not "indicated a desire to seek" independent review. I have made a formal request for independent review and for stay pending independent review. ICANN is required by its own bylaws to refer this request to an IRP, and to allow the IRP authority to make a meaningful recommendation concerning a stay.

This is not a discretionary obligation. ICANN's continuing failure to refer my outstanding request to an IRP, and ICANN's failure (as evidenced by its signing of a contract for ".travel" with Tralliance Corp. on 5 May 2005, by which time my request had been outstanding and unanswered for almost a month) to respect the authority of the IRP to recommend a stay, is an ongoing material violation of ICANN's own bylaws and ICANN's contractual commitment to the USA Department of Commerce.

To the extent that you are party to these decisions (which I do not know and cannot know, because of the lack of transparency of ICANN's decision making process), it is a violation of your obligations as an officer of the corporation. I appeal to you as an officer of the corporation to bring its conduct into compliance with its bylaws and contractual obligations.

Finally, you ask that I "please confirm that you understand that the party not prevailing in an independent review proceeding is ordinarily responsible for bearing all the costs of the independent review provider, including the fees and expenses of the arbitrators."

You can best enable me to understand the policies and procedures for independent review by providing me with a complete copy ICANN's policies and procedures (if any) for independent review, and with a copy of any ICANN contract(s) with independent review provider(s). Please do so as soon as is feasible.

In the meantime, please (1) refer my request to an IRP, or to the person or body within ICANN responsible for making that mandatory referral, (2) stay any action by ICANN on the disputed matters pending receipt of the recommendation of the IRP concerning a stay, and [3] advise me of the date, time, place, manner, and available means for attending, observing, or auditing any meeting of ICANN or any constituent body to consider my request [or] independent review policies, as soon as such a meeting is planned or scheduled.

ICANN may be obliged (as a result of its own prior inaction and failure to have in place the policies and procedures for independent review required by its bylaws and promised in its contract with the USA Department of Commerce) to develop policies and procedures for independent review while my request and others are pending. For this reason, it is especially important for that policy development process to be conducted with the maximum extent feasible of openness and transparency. Otherwise, it will be impossible to tell whether the independent review policies and procedures may have been crafted to influence the outcome of the specific pending requests for independent review.

You invite me to "provide any response in writing if you have any questions or comments regarding the above, or if you feel that we have failed to respond to your previously addressed concerns."

You have failed to respond meaningfully to my requests. Some of them, such as my request for a stay, you have not even acknowledged. Given that I have requested that certain ICANN decisions be referred to an IRP, and that they be stayed pending the recommendation of the IRP concerning a stay (your message never mentioned my request for a stay), the minimum response required by ICANN's bylaws is to refer my request to an IRP, and stay action by ICANN pending the recommendation of the IRP concerning a stay, so that the IRP is afforded the "authority" guaranteed it by ICANN's bylaws to make a meaningful recommendation concerning a stay.

Sincerely,

Edward Hasbrouck

Link | Posted by Edward on Wednesday, 18 May 2005, 07:59 ( 7:59 AM) | TrackBack (3)
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