Wednesday, 18 May 2005

Addition of ".travel" TLD to Internet root name servers

The final decision on whether to add ".travel" to the Internet's root domain name servers will be (or perhaps already has been) made by the National Telecommunications and Information Administration (NTIA), a division of the USA Department of Commerce (DOC).

The role of the NTIA and DOC in Internet governance pleases almost no one: most interested parties would prefer either that authority for Internet governance be transferred to an international organization, or that it be privatized and turned over to an unregulated "private" (i.e. commercial) entity.

As it stands, however, NTIA/DOC still has, for largely historical reasons, ultimate authority over the root name servers. Under a zero-cost contract ("Memorandum of Understanding"), NTIA/DOC has delegated substantial decision-making authority to ICANN, a non-profit "public benefit" California corporation. But ICANN can only make recommendations to NTIA/DOC for the addition of new top-level domains (TLD's) to the root name servers. NTIA/DOC must at least formally rubber-stamp ICANN's requests for new TLD's before they can be added to the root servers.

Since ICANN has failed to stay its action on ".travel" pending my request for independent review of its decision, I have appealed to NTIA/DOC to stay its action on any request to add ".travel" to the root, as follows:

From: Edward Hasbrouck edward@hasbrouck.org
To: mgallagher@ntia.doc.gov
Subject: addition of ".travel" TLD to Internet root domain name servers
Cc: jeffrey@icann.org, press@icann.org, twomey@icann.org, vinton.g.cerf@mci.com, committee@alac.icann.org
Date: Wed, 18 May 2005 13:50:19 -0700

I am writing to you as the signatory for the government of the USA (in your capacity as Assistant Secretary of Commerce for Communications and Information) to the most recent Amendment 6, signed by both parties on 16 September 2003, to the "Memorandum of Understanding" (MOU) between the USA Department of Commerce and the Internet Corporation for Assigned Names and Numbers (ICANN), as posted on the DOC/NTIA Web site at:

http://www.ntia.doc.gov/ntiahome/domainname/agreements/amendment6_09162003.htm

If some other officer of DOC/NTIA is responsible for oversight and enforcement of the MOU with ICANN, please tell me who that is, and forward this message to them.

I wish to bring to your attention that ICANN has failed to fulfil its commitments to NTIA/DOC under the MOU, as most recently amended, and the representations by ICANN which NTIA/DOC relied on in approving the MOU, and to request that you take action to enforce compliance by ICANN with the MOU and/or to terminate the MOU for breach of contract by ICANN.

Specifically, Amendment 6 of the MOU provides as follows:

"II. C. ICANN. ICANN agrees to perform the following activities.... 4. Continue to develop, to test, and to implement accountability mechanisms to address claims by members of the Internet community that they have been adversely affected by decisions in conflict with ICANN's by-laws, contractual obligations, or otherwise treated unfairly in the context of ICANN processes."

ICANN's own bylaws provide that "ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws. 2. Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. 3. Requests for such independent review shall be referred to an Independent Review Panel ("IRP"), which 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.... 8. The IRP shall have the authority to:... c. recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP."

More than two and a half years after the signing of Amendment 6 to the MOU, ICANN still does [not] actually have in place -- so far as I can tell after attempting to avail myself of it -- such a mechanism and process.

I have made such a request which ICANN has not, in fact, referred to an IRP. ICANN has not allowed the IRP to make a meaningful recomendation concerning a stay; instead, ICANN has taken affirmative action to put the contested decision into effect, while my request for independent review and stay is pending, thereby depriving the IRP (should my request eventually be referred to an IRP) of its authority to recommend a stay.

On 8 April 2005 -- relying on documents and records which were not made available to journalists and stakeholder who had requested them, following a long series of meetings which were closed to public observation or auditing, the identity of the participants in which including the supposedly independent "evaluators" of the proposals were kept secret, and which in numerous other respects violated ICANN's assurances to NTIA/DOC and ICANN's own bylaw that "ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness" -- ICANN's Board of Directors voted to approve an agreement with Tralliance Corp. for a ".travel" sponsored top- level domain (sTLD).

That same day, while the meeting of ICANN's Board of Directors was still in session, I requested that this decision by ICANN be referred to an IRP, and be stayed pending independent review.

My request for independent review was not acknowledged or responded to in any way by ICANN (other than by ICANN's Ombudsman) until more than a month later, when I received a response from ICANN's General Counsel and corporate secretary dated 12 May 2005, which I have posted at:

http://hasbrouck.org/blog/archives/000582.html

That response from ICANN noted that I had raised the same issue of transparency and access to meetings to consider new TLD applications in my request for reconsideration of ICANN's decision on ".aero" in 2001. I have never been able to have that decision independently reviewed, because ICANN never appointed the independent review board required by the ICANN bylaws in effect as of the time of that decision. So these issues have, by ICANN's own admission, been outstanding, without possibility of obtaining the independent review to which I am entitled by ICANN's bylaws, for more than four [error in original: should be "three"]and one-half years. This is a continuing material breach by ICANN of the MOU.

ICANN has neither acknowledged nor (so far as I know) acted upon, in any way, my request for a stay pending independent review. Obviously, promptness is critical to a stay.

Instead, ICANN signed 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. This affirmative action to deny the IRP the authority -- even if my request is subsequently referred to an IRP -- guaranteed to it by ICANN's bylaws to make a meaningful recommendation concerning a stay, is a material breach both of ICANN's contractual commitments to NTIA/DOC in the MOU, and of ICANN's own bylaws.

Amendment 6 of the MOU also provides as follows:

"II. C. ICANN. ICANN agrees to perform the following activities....8. Define and implement a predictable strategy for selecting new TLDs using straightforward, transparent, and objective procedures that preserve the stability of the Internet (strategy development to be completed by September 30, 2004 and implementation to commence by December 31, 2004).

Those deadlines have long passed. But to date, ICANN has neither defined nor implemented a predictable strategy for selecting new TLD's, nor one that uses transparent procedures.

ICANN's process of selecting new TLD's has not, to date, used transparent procedures. This lack of transparancy is the basis of my pending request for independent review and stay.

And ICANN's response to my request for independent review of the ".travel" decision explicitly defends the continuing non-transparency of ICANN's process of selecting new TLD's.

Among the questions which I have sought to ask, but which I have been prevented from asking by ICANN's improper lack of transparency, and which ICANN has not answered, are those concerning the financial stability of the would-be ".travel" registry operator and sponsor.

The current ".travel" application is "sponsored" by the Travel Partnership Corp. (TTPC). According to the latest TTPC annual report , TTPC was insolvent as of 31 December 2004.

The registry for ".travel" is proposed to be operated by Tralliance Corp., which was acquired on 9 May 2005 (immediately after signing the ".travel" agreeement with ICANN) by TheGlobe.com. According to the latest Form 10-Q filed by TheGlobe.com with the SEC on 12 May 2005, "The Company continues to incur substantial consolidated net losses and management believes the Company will continue to be unprofitable for the foreseeable future. These conditions raise significant doubt about the Company's ability to continue as a going concern."

According to the same SEC filing by TheGlobe.com, operating expenses of Tralliance Corp. (which has no apparent source of income, and will have none until after it incurs the costs of setting up ".travel" and can begin collecting registry fees) had been funded by loans from TheGlobe.com.

Given the serious unanswered questions concerning the liquidity and financial stability of all of the entities proposing to operate or set policy for ".travel" (Tralliance, its parent TheGlobe.com, and TTPC) , I believe that there is cause for concern -- which ICANN has to date refused to consider in any open or transparent process, if at all -- that addition of ".travel" to the root server in these circumstances might risk the stability of the Internet, to some as yet unknown degree.

I do not know whether ICANN has made, or when or if it may make, a request or recommendation to NTIA/DOC for the addition of ".travel" to the root Internet domain name servers.

I ask that you inform me if such a request or recommendation is made. And I ask that, in considering any such request or recommendation, you take into consideration that it is the subject of an outstanding request for independent review and a request for a stay pending independent review.

Accordingly, I request that you and DOC/NTIA (1) stay any action to approve the addition of ".travel" to the root servers at least until ICANN refers my request to an IRP, and the IRP makes its recommendation concerning my request for a stay, and (2) take appropriate action to sanction ICANN for material breach of the MOU, to compel compliance by ICANN with its contractual obligations under the MOU, and/or to terminate the MOU for long- standing and continuing material breach of contract by ICANN.

My outstanding request for independent review and stay, and related background documents, are linked from my Web site at:

http://hasbrouck.org/icann/
http://hasbrouck.org/blog/archives/cat_internet_domain_names.html

Should you wish to discuss this matter further, you can reach me by e-mail or by phone in San Francisco at +1-415-824-0214.

Sincerely,

Edward Hasbrouck

Link | Posted by Edward on Wednesday, 18 May 2005, 15:10 ( 3:10 PM) | TrackBack (1)
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