Sunday, 11 December 2005
ICANN procedures for independent review
My involvement with ICANN (the governing body of the Internet, although ICANN doesn't like to speak of itself as "governing" because that might suggest that it should be held to the same standards of democracy, public accountability, etc. as a government agency, or even that its power should be transferred to some sort of actual government entity) has gone through several stages over the last 5 years, and is now about a very different, and more fundamental, set of issues than were at stake in my initial reporting on this story.
My coverage of ICANN began with my attempt to report on what seemed a relatively straightforward story at the intersection of my interests in travel, the Internet, and consumer advocacy: the creation under ICANN's supervision of top-level Internet domain names (TLD's) restricted to the travel industry: ".aero" (for air transportation) and "travel" (originally proposed by the airline cartel IATA, but eventually approved for a wider range of the travel "industry", although still to the exclusion of travellers).
The issues for travellers, and the public interest, remain as significant (if subtle, because almost no one is actually using ".aero" or ".travel" yet) as ever. While keeping top-level domains artificially scarce to enhance their value to the handful of companies given the franchise to control them, ICANN is allocating a huge proportion of this limited Internet "namespace" for the exclusive use of the industry that sells travel-related services -- and is equating that "industry" with the entire concept of "travel". What should be a public commons is being captured by corporate interests, travel is being reduced to the purchase of services, and travellers and the rest of the public are being reduced to "consumers". ".Aero" and "travel" are the first industry-specific TLD's, making travel the test case of the corporate enclosure of this virtual commons.
ICANN's own consultants hired to evaluate the applications for TLD's agreed with me that neither airlines nor the travel "industry" adequately represent the interests of consumers and travellers. They recommended against ".travel", for this same reason, both when it was first proposed by IATA in 2000, and again when it was proposed in 2004 by the Tralliance Corp., an insolvent front corporation which turned out to have both a secret side agreement with IATA and another secret agreement to be acquired by TheGlobe.com/Voiceglo.com contingent on obtaining the franchise to control ".travel". TheGlobe.com/Voiceglo.com is itself a financially shaky company controlled by Edward Cespedes and Michael Egan, the principal owners of Florida-based tour operator Certified Vacations .
But in trying to investigate who was really behind the ".travel" proposals, and to report on ICANN's consideration of their applications, I came up against a pattern of cronyism, back-room deals, and above all of secrecy and arbitrariness in both the substance and the process of making decisions -- in fundamental violation of the high-sounding commitment in its Bylaws 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."
So what began as an attempt to "get the story" as a journalist, and to advocate for the interests of travellers and consumers, gradually became, of unfortunate necessity, first an attempt to hold ICANN to its purported principles of transparency and then, when that was denied, an attempt to hold ICANN accountable under its purported provisions for independent oversight.
Unfortunately, governance of the Internet by ICANN is the poster child for the efforts of the government of the USA not just to privatize and outsource to corporations the provision of government services (delivering the mail, sweeping the streets, etc.) but to privatize governance itself -- that is, to outsource to corporations the making of policy decisions -- and to impose that model of corporatized private governance on the world, regardless of any objections by other governments or global civil society.
To point out, as I have, that ICANN is arbitrary and secretive, is to call into question whether corporations can do a better job of the process of governing than the traditional institutions of democratic government (elections, courts, etc.). That's a heresy that religious devotees of "market forces" as divinely inspired, and believers in the inherent superiority of privatization, are constitutionally incapable of imagining, much less admitting. If they did, that would cast doubt on whether the "ICANN model" of delegating decision-making to private corporations should be extended to other areas where public policies are currently set by legislation or government regulations.
As a private California corporation, ICANN exercises government-style global power over the Internet, without admitting to being subject to any of the laws that protect the rights of the press and the public when we are dealing with actual government agencies.
In ICANN's Alice-In-Wonderland world of privatized governance, open meeting laws, freedom of information or "sunshine" laws, and laws guaranteeing administrative due process are replaced by corporate Bylaws on "transparency" and "accountability". And if your rights under those Bylaws are violated, as mine have been, your only possibility of redress is through -- you guessed it -- private arbitration by another corporation, not the courts.
At the most fundamental level my dispute with ICANN over access to meetings, documents, and records has become the test case of the meaning of "due process" and "judicial review" in the context of privatized government-by-corporation. What rights, if any, do the public and the press have to access to information about the process of decision making? And what, if any, accountability do corporations have to independent oversight when they are exercising the authority to determine public policy? As privatization "progresses" from delivery of services to the decision-making functions of government, these are crucial questions for the retention of any semblance of democracy and justice.
ICANN has agreed to submit to "independent" arbitration of whether they followed their own transparency Bylaws in their (non)responses to my attempts to report on ".travel". But it remains to be seen if I will be offered genuinely independent arbitration, or only a corporate kangeroo court designed by ICANN to ensure that the arbitrators of their choice rule in their favor or that the arbitration process is so expensive that I can't afford to risk having to pay for it if I lose -- which, of course, is what is required for corporate "justice".
(I invite and will welcome contributions in any amount towards the possible costs of the independent review. PayPal takes a cut out of any donations made through their system, so if you send me a check in U.S. Dollars on a bank in the USA, I'll be able to put more of it to use than if you donate through PayPal.)
Under its Bylaws, ICANN is supposed to have procedures in place for the arbitration, and to have chosen the arbitration corporation in advance. They haven't. Instead, they are trying to ignore their own decision making policies, pick their own arbitrator (with whom they may already have a secret side agreement they haven't yet showed me) eight months after I asked for arbitration, make up the rules for the arbitration as they go along, and impose them unilaterally and retroactively.
My message today to Mr. John Jeffrey (General Counsel and Corporate Secretary) et al. at ICANN is as follows:
Link | Posted by Edward on Sunday, 11 December 2005, 13:07 ( 1:07 PM) | TrackBack (7)
From: "Edward Hasbrouck" firstname.lastname@example.org
To: email@example.com , firstname.lastname@example.org , [ICANN Board of Directors members]
Subject: Procedures for independent review
Date sent: Sun, 11 Dec 2005 13:04:44 -0800
Copies to: email@example.com , firstname.lastname@example.org , email@example.com
Thank you for the e-mail message Mr. Jeffrey sent me during the ICANN Board of Directors meeting in Vancouver last Sunday, 4 December 2005, in which you agree that, "If you do intend to go forward with an IRP complaint, we will refer your complaint to an Independent Review Panel."
There is a link labelled, Message from John Jeffrey to Edward Hasbrouck -- ICANN -- 4 December 2005 -- .travel IRP Request on the Correspondence page of ICANN's Web site, but that link does not retrieve any file.
Since you haven't posted your message to me on the ICANN Web site, I have posted it on my Web site at:
I regret that you chose to reply to me by e-mail, even though we were in the same room. And I regret that ICANN's Board of Directors did not consider my request during their Vancouver meeting. Since we were all in the same place (in my case, entirely at my own personal expense, including lost wages), I believe that a face-to-face meeting could have, and still could, greatly expedite your fulfillment of the commitment you have now made to refer my request to an independent review panel -- the first step towards which would be the development of ICANN procedures for independent review, and the appointment of an independent review provider (IRP).
Much of your message consists of a statement of the substantive objections which, apparently, you intend to make to the IRP if one is ever appointed.
While I appreciate your providing me with a preview of your arguments to the IRP, I ask that you not let your preparation of arguments for the eventual independent review distract you from, or delay you in, fulfilling your current and more time-critical obligations under ICANN's Bylaws and contracts to consider and act on my request for a stay pending independent review, to develop policies and procedures for independent review, to appoint an IRP, and to refer my outstanding request to that IRP. Once these more immediate tasks are complete, you will have an opportunity to prepare and present your arguments to the IRP.
You say that, "We disagree with your assessment that you have been 'materially affected' by an action of the ICANN Board." If you continue to believe this -- particularly after reviewing the itemization of some of the ways I have been "materially affected" by ICANN's failure to comply with its transparency Bylaw, which I provided to you, at your request, in my e-mail message of 17 May 2005 -- that is an argument you can make to the IRP.
Like my first request for independent review and stay on 8 April 2005, my e-mail message to you of 17 May 2005 , reiterating my outstanding requests for independent review and stay and responding to your questions about my motives for my requests, was and is required to be posted on ICANN's Web site, as soon as you received it, in accordance with Article IV, Section 3.13 of ICANN's Bylaws. Neither of these petitions for independent review have yet been posted on ICANN's Web site, but I have posted them on my own Web site at:
Moving from the issues that will eventually be before the IRP, to those that are now before ICANN, you say that, "ICANN's agreement to have your concerns reviewed by an arbitrator will not bring a halt to ICANN's work or .TRAVEL's implementation. ICANN's Bylaws do provide that an Independent Review Panel may 'recommend that the Board stay any action,' but the Bylaws do not provide that any individual request for independent review by itself creates an automatic stay."
You mis-state the Bylaws. ICANN's Bylaws do not provide that the IRP "may" recommend a stay. Article IV, section 3.8 of the Bylaws provides that the IRP "shall have the authority to" recommend a stay. ICANN has not respected that authority.
Each of the following constitutes an ongoing affirmative act by ICANN, each of which is in violation of ICANN's bylaws, to deprive any IRP which may eventually be appointed of any meaningful "authority" to make a meaningful recommendation concerning a stay pending independent review:
(1) ICANN's continuing failure to fulfill its obligation under its Bylaws to refer my request to an independent review panel, more than 8 months after my request of 8 April 2005;
(2) ICANN's continuing failure to "have in place a ... process" for independent review, almost 3 years after the adoption on 15 December 2002 of amendments to the Bylaws requiring this;
(3) ICANN's continuing failure to have appointed an IRP, also almost 3 years after the requirement for this was added to the Bylaws; and
(4) ICANN's continuing failure to consider at any meeting of ICANN or any constituent body thereof, or to act on, my request for a stay by ICANN pending the recommendation of the IRP concerning a stay.
Time is obviously of the essence with respect to a stay. Your continuing delay constitutes a continuing and impermissible de facto denial by ICANN of the IRP's authority to recommend a stay.
I reiterate my outstanding request that ICANN stay its decision on ".travel" pending receipt of the recommendation of the IRP concerning a stay. I reiterate my request that this be considered by ICANN's Board of Directors as soon as possible, and I ask you in your capacity as Secretary to the Corporation and the Board to forward this request to each of the members of the Board -- particularly including those newly elected members who may not yet, since ICANN has not posted them on its Web site as it is required to have done, be aware of this request, or that it has not yet been considered by any ICANN body. And I continue to request that ALAC ask the Board to consider and act on this request.
You request that I "acknowledge that ICANN's Bylaws provide that 'The party not prevailing shall ordinarily be responsible for bearing all costs of the IRP Provider.'"
While this may appear at first glance to be a reasonable request, it is both unauthorized and inappropriate. Independent review of actions by ICANN is available only in cases where it is asserted that ICANN has taken a decision or action inconsistent with its Articles of Incorporation or Bylaws. In many such cases, there is likely to be a difference of opinion between ICANN and the person requesting the independent review as to what ICANN's Bylaws say, and/or what they mean. Requiring, as a precondition to ICANN's fulfillment of its obligation to refer the request to an IRP, that the requester satisfy ICANN that, in ICANN's opinion, the requester agrees with ICANN's interpretation of the content or meaning of the Bylaws, would clearly frustrate many legitimate requests for independent review.
However, to avoid anything which ICANN might be tempted to use as a pretext for further delay in referring my request to an IRP, I voluntarily acknowledge -- without prejudice to my right or the right of anyone else to make other requests for independent review without making such an acknowledgment -- that, according to ICANN's Web site, the ICANN Bylaws as they were in effect at the time I made my request for independent review on 8 April 2005, provided that, "The party not prevailing shall ordinarily be responsible for bearing all costs of the IRP Provider."
My request for independent review was made by e-mail to firstname.lastname@example.org (the address posted on the ICANN Web site for public submissions to the ICANN meeting then in progress in Argentina), ICANN's President and CEO, Chairman of the Board of Directors, Corporate Secretary, and all those members of the Board of Directors for whom I could find e-mail addresses from the ICANN Web site, while the Board of Directors meeting of 8 April 2005 was still in session. Amendments to the Bylaws were adopted earlier during that same meeting. So far as I can tell, those amendments were effective immediately. So the version of ICANN's Bylaws applicable to these requests is that which came into effect 8 April 2005, as represented by ICANN on its Web site at:
You say that, "we must be assured that you will be willing and able to post the appropriate payments (approximately US$3250 for the filing fees portion of the IRP costs) before commencement of any action, and that you will be prepared to pay all the costs of the IRP provider in the event that you do not prevail in this action."
While you speak of what you believe to be required "before commencement of any action", this action commenced 8 April 2005 with your receipt of my formal request for independent review.
While you use the imperative "must", there is no publicly disclosed resolution of ICANN's Board of Directors, nor any publicly disclosed decision of any ICANN body, that imposes any such preconditions to independent review in terms of "filing fees" or the disclosure of personal financial information.
Even assuming (which I do not concede) that any such preconditions could be imposed consistently with the Bylaws, any policies to impose such fees or financial conditions, require such disclosure of personal financial information by those making requests for independent review, put in place procedures for independent review, or appoint an IRP, would clearly be "policies that are being considered by the Board for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges", as defined in Article III, Section 6, of the Bylaws , and subject to the requirements of that Section.
Since the adoption of the present provisions of the Bylaws on independent review 15 December 2002, no such policies related to independent review have been proposed or adopted in accordance with the requirements of that Section of the Bylaws.
You ask me to "please provide us with your formal IRP request". I have copied it again at the end of this message. But as you know, this request was first provided to you 8 April 2005.
You say that, "we will forward your request to the International Centre for Dispute Resolution which ICANN has designated to provide independent review services in accordance with the Bylaws." But as I have noted above, ICANN has made no such designation, at least not through any publicly-disclosed decision or through the decision-making procedures required by the Bylaws.
The only mention I can find on the ICANN Web site of any "decision" related to the International Centre for Dispute Resolution (ICDR) is Board of Directors Resolution 04.33 of 19 April 2004, at:
This Resolution 04.33 neither puts in place procedures for independent review, nor appoints an IRP. And it was not adopted in accordance with any of the requirements of Article 3, Section 6, of the Bylaws , that would have applied to it if it was considered to have constituted such a policy.
Procedures for independent review, and the appointment of an IRP, substantially affect anyone who might ever want to make a request for independent review, and are subject to Article 3, Section 6 .
Neither (1) any proposal for Resolution 04.33, (2) the proposal from [ICDR] on which it was based, (3) any proposed contract between ICANN and [ICDR], (4) any policies, fees, or charges they might have contained, nor (5) any statement of reasons why they were being proposed, was ever published on the ICANN Web site.
There was no 21-day notice of the proposal, no forum for public comment on the proposal, and no request for the opinion of the Government Advisory Committee, even though oversight policies and procedures clearly affect "public policy concerns". (For example, the authority of governments, under their national laws, to delegate decision-making authority to ICANN or to participate in ICANN processes may depend on whether ICANN procedures satisfy the requirements of those national laws for administrative due process, public access, oversight, accountability, and so forth.)
Resolution 04.33 was "adopted" at a closed Board "meeting" by telephone, from which journalists, stakeholders, and any other would-be observers (except those, whose identities remain secret, whom ICANN may have chosen to permit to participate in or to audit the teleconference) were excluded. More than a year and a half later, no minutes of this "meeting" have been made public (in violation of ICANN's bylaws), and no transcript or audio recording of this "meeting" has been made public.
Assuming (which I do not concede) that Resolution 04.33 was validly adopted -- even under the rules applicable to a non-policy resolution that did not impose charges or fees -- that resolution merely authorized, but did not require, the "engagement" of the IDRP to provide unspecified services in accordance with a proposal by IDRP which has never been publicly disclosed.
It is impossible for me to determine whether any contract such as was authorized was ever entered into between ICANN and [ICDR], or what the terms of that contract may be. I reiterate my request for a complete copy of any and all ICANN policies and procedures for independent review (if any), as well as any contract(s) between ICANN and any provider(s) of independent review services.
I cannot decide, for example, whether to elect a one-member panel of arbitrators or a three-member panel until the procedures are in place, and I can determine the effect of that election on the potential cost of the IRP. Similarly, I cannot decide whether to request a purely declaratory opinion, or to request the award of nominal or actual damages (for the reduced value of licenses in my copyrighted journalistic works resulting from ICANN's violations of its Bylaws on transparency) until the procedures for independent review are in place, and I can tell whether the potential costs of the IRP may be less if I request nominal or actual damages than if I request a non-monetary recommendation.
Resolution 04.34 , adopted at the same time as Resolution 04.33, specifically authorizes ICANN staff to continue negotiating with other providers of independent review services, thus indicating that the contract authorized by Resolution 04.33, if it was ever entered into, could not have been an exclusive contract or have constituted the required "appointment" of an IRP.
More than a year and a half after the "adoption" of Resolution 04.33, no procedures for independent review have been posted on the ICANN Web site, as would have been required under Article IV, Section 3.13 as soon as they were available -- further confirming that ICANN did not consider itself to have in place such procedures, or to have appointed the IRP.
You may have "appointed" an IRP in your own mind, and you may be accustomed to imposing your will as ICANN's law. But that's not the decision-making process for policies, charges, or fees that is required by ICANN's Bylaws. I insist that you follow your own rules, and bring your actions as officers and Directors, and the actions of the Corporation, into compliance with its Bylaws and its contractual commitments to transparency and oversight.
You can't just make the procedures, charges, or fees up as you go along, or impose them unilaterally or retroactively.
ICANN did not, in fact, "have in place" any duly-adopted procedures for independent review at the time I made my request, and does not now. ICANN had not, and still has not, in fact, duly "appointed" an IRP. And ICANN had not, and has not, posted such duly-adopted procedures for independent review, or "all petitions, claims, and declarations", on the ICANN Web site.
The next step for ICANN -- after consideration of and action on my request for a stay -- in referring my request to an IRP, as you are obligated by your Bylaws to do and as you have now agreed to do, is to begin a maximally open and transparent process of developing policies and procedures for independent review, and selecting and appointing an IRP, in accordance with the Bylaws. I urge you to schedule and give notice of a meeting for the purpose of beginning this process as soon as possible.
"Additionally,", you say, "we are interested in whether you have engaged Tralliance directly regarding your grievances." As I have explained repeatedly to you, and on my Web site, my grievance is with ICANN, and concerns ICANN's failure to act in accordance with ICANN's Bylaws. The Tralliance division of TheGlobe.com/Voiceglo.com is not a party to this grievance.
I have explained this distinction repeatedly, including in my comments to the public forum before the Board of Directors in Vancouver on 4 December 2005, in my e-mail message to you of 17 May 2005, and in my blog at:
So far as I can tell, if Tralliance/TheGlobe.com/Voiceglo.com have an "interest" in my request for independent review of ICANN's actions, it is an interest in having my request referred to an IRP as soon as possible, so that the uncertainty -- as to whether the IRP will recommend that ICANN's decision on ".travel" be upheld or be voided -- will be resolved as soon as possible. I have done my best to advance that mutual interest of myself and of Tralliance/TheGlobe.com/Voiceglo.com in prompt review.
I have done everything in my power to minimize any unavoidable side effects on Tralliance/TheGlobe.com/Voiceglo.com or anyone else who, like those corporations, is not a party to this request. I gave advance notice of my intention to make this request if ICANN proceeded with this decision:
I made my request as promptly as humanly possible after ICANN's decision, while the meeting of ICANN's Board of Directors was still in session, so as to permit the referral of my request to an IRP (if procedures for doing so had been in place, which they weren't as a result of ICANN's prior and continuing inaction) during that same meeting.
I have been trying diligently to get ICANN to act on my request as promptly as possible, and to minimize the delay and the resultant uncertainly for Tralliance/TheGlobe.com/Voiceglo.com and anyone else with an interest in the decision that is subject to my request for independent review and stay.
On the other hand, both ICANN and Tralliance/TheGlobe.com/Voiceglo.com have taken deliberate unnecessary actions that have materially contributed to their own financial risk and liability in relation to my requests for independent review and stay.
ICANN's continuing failure to have in place procedures for independent review or to have appointed an IRP, and ICANN's continuing delay in acting on my requests, have greatly prolonged the uncertainty for Tralliance/TheGlobe.com/Voiceglo.com, and compounded ICANN's potential liability to Tralliance/TheGlobe.com/Voiceglo.com (and perhaps other parties) should the IRP find that ICANN's decision on ".travel" is void as not having been made in accordance with ICANN's Bylaws.
ICANN's continuing failure to post my requests for independent review on the ICANN Web site, or to mention them in any of their statements concerning the decision subject to my request for independent review, has deprived third parties of the notice to which they were entitled under ICANN's Bylaws that a request for independent review was pending, greatly increasing ICANN's potential liability if third parties have relied on ICANN's Web site in determining whether such a request had been made.
Tralliance/TheGlobe.com/Voiceglo.com has contributed to its potential liability by choosing not to disclose to its shareholders my pending request for independent review, and the uncertainty as to whether ICANN's decision on ".travel" will be upheld or voided as a result of the independent review.
In addition, Mr. Ron Andruff, CEO of the Tralliance division of TheGlobe.com/Voiceglo.com, told me at the ICANN meeting in Vancouver that his company has chosen not to make any contingency plans or preparations for the possibility that ICANN's decision on "travel" might be stayed or voided as a result of the independent review which I have requested.
Mr. Andruff told me that this was because, speaking of ICANN and independent review, "They're never going to allow that to happen."
I hope that your future actions -- unlike your actions to date -- will begin to demonstrate that Mr. Andruff's confidence in your unwillingness to do what you are legally required to do was misplaced.
Finally, as I noted to you in my e-mail message of 17 May 2005:
"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."
Accordingly, I remind you of my outstanding request that you 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 requests for independent review and stay pending independent review, or independent review policies, as soon as such a meeting is planned or scheduled.
I hope to hear from you, without further delay, regarding the scheduling of a meeting to consider my request for a stay by ICANN pending receipt of the recommendation of the IRP concerning a stay, and to begin the process of developing ICANN policies and procedures for independent review and the selection and appointment of an IRP to consider my request and the other outstanding request(s) for independent review of ICANN actions.
Please let me know as soon as possible if you are still confused or uncertain as to what actions by you I have been, and am, requesting.
------- Forwarded message follows -------
From: "Edward Hasbrouck" email@example.com
Subject: Request for independent review
Copies to: [ICANN Board of Directors members], firstname.lastname@example.org , email@example.com
Date sent: Fri, 08 Apr 2005 05:56:02 -0800
I request that this message be entered into the record of today's Board meeting and posted on the ICANN Web site.
I again request, for the reasons stated in my comments to yesterday's public forum , that today's resolution of the ICANN Board of Directors to approve a ".travel" agreement be referred to an independent review panel (IRP) in accordance with Article 4, section 3 of the Bylaws.
I again request that the Board, President, and staff stay any action on a ".travel" agreement until such time as the Board reviews and acts upon the opinion of the IRP, and while this request for a recommendation from the IRP for a stay is pending. If the Board does not stay its decision, that will deprive the IRP of any meaningful "authority" (as the IRP is given under the Bylaws) to make any meaningful recommendation for a stay.
I reserve the right to make additional written submissions to the IRP once the policies and procedures for independent review have been determined.
And I again request notice, as far in advance and in as much detail as is known, of the time, place, and manner of any meetings to be held by ICANN or any of its constituent bodies, and for copies of any documents to be considered by them, related to ".travel", to my requests, or to policies for independent review of ICANN actions.
------- End of forwarded message -------