Sunday, 5 February 2006

Tilting at ICANN's windmills

This week I've filed comments with ICANN on the reasons why ICANN's agreement with SITA for the .aero top-level domain should not be renewed because SITA has broken its contract with ICANN, and the need for better oversight and enforcement provisions in future TLD agreements, to prevent similar breaches of contract by other TLD sponsors.

I've also responded to ICANN's most recent letter to me in which ICANN's Corporate Secreatary and General Counsel John O. Jeffrey reneged on his promise to act on my request for independent review of ICANN's failure to comply with its own rules on openness and transparency:

From: "Edward Hasbrouck" edward@hasbrouck.org
To: john.jeffrey@icann.org , vint@google.com
Subject: Request for ICANN Board action on independent review
Date sent: Sun, 05 Feb 2006 11:31:12 -0800
Copies to: [ICANN Board of Directors members], twomey@icann.org , committee@alac.icann.org

Mr. Jeffrey's message to me of 17 January 2006 appears contradictory:

http://hasbrouck.org/icann/E-mail_to_Edward_Hasbrouck_17_January_2006.pdf

You refer to "ICANN's standing agreement to have your concerns reviewed by an arbitrator". But you also say that my request for independent review -- received by you [8] April 2006, 10 months ago today -- "does not meet the guidelines required by the ICDR procedures and consequently cannot be considered a formal IRP sufficient to forward to the ICDR."

There are at least three problems with your argument:

First, the "sufficiency" of a request for independent review should be determined solely by the independent review panel, not by ICANN. ICANN's obligation under its Bylaws to refer such a request to an IRP is not discretionary or conditional on ICANN's opinion of its "sufficiency".

Second, I said in my original request for independent review that, "I reserve the right to make additional written submissions to the IRP once the policies and procedures for independent review have been determined." I remain willing to comply with any applicable and duly-adopted policies for independent review.

In order to be able to satisfy any such procedural requirements, I have repeatedly requested copies of any ICANN policies and procedures for independent review, including any agreement(s) between ICANN and any provider(s) of independent review services.

You have ignored these requests, which I reiterate.

Third, you refer to "the policies of the International Centre for Dispute resolution, which ICANN has designated to provide independent review services in accordance with its Bylaws."

But you ignore the portion of my message to you of 11 December 2005 in which I explain in detail that, despite my diligent search of the ICANN Web site, and my repeated unanswered requests to you for copies of any IRP agreement(s), I have been unable to find any record that ICANN has, in fact, "designated" the ICDR -- or anyone else -- as the IRP, or adopted any policies or procedures for independent review, "in accordance with its Bylaws".

ICANN's Web page on independent review policies states, correctly, "New bylaws went into effect on 15 December 2002 that call for a different independent review procedure." But that Web page contains no indication that ICANN has designated an IRP or adopted any policies or procedures for independent review:

http://www.icann.org/committees/indreview/

To the best of my knowledge and belief, after diligent research and repeated, unanswered, requests to ICANN for any agreements(s) between ICANN and independent review provider(s), ICANN has not designated an IRP or adopted any policies or procedures for independent review, in accordance with the procedures required by ICANN's Bylaws for making such policy decisions.

If ICANN's Board of Directors believes that they have designated the ICDR (and/or anyone else) as the IRP, or adopted the ICDR's policies (and/or any other policies) as ICANN's policies and procedures for independent review, please identify to me:

  1. The URL at which notice of the proposed decision to designate an IRP and/or adopt policies for independent review, and notice of the reasons why these decisions were being proposed, was posted on the ICANN Web site, as required by Article III, Section 6.1.a of the Bylaws.

  2. The 21-day or longer period during which that notice was available to the public prior to action by the Board on the proposals, as required by Article III, Section 6.1.a of the Bylaws.

  3. The manner in which "a reasonable opportunity for parties to comment on the adoption of the proposed policies, to see the comments of others, and to reply to those comments, prior to any action by the Board" was provided, as required by Article III, Section 6.1.b of the Bylaws.

  4. The manner in which ICANN "request[ed] the opinion of the Governmental Advisory Committee and [took] duly into account any advice timely presented by the Governmental Advisory Committee" concerning these proposals, as required by Article III, Section 6.1.c of the Bylaws.

  5. Whether "an in-person public forum" was held prior to any final Board action, or why it was not "practically feasible and consistent with the relevant policy development process" to do so, as required by Article III, Section 6.2 of the Bylaws.

  6. The URL of the minutes including "the reasons for any action taken, the vote of each Director voting on the action, and the separate statement of any Director desiring publication of such a statement", as required by Article III, Section 6.3 of the Bylaws.

  7. The URL at which that designation and/or those policies are, and were at the time of my request on [8] April 2005, posted on the ICANN Web site as required by Article IV, Section 3.13 of the Bylaws.

Most of the rest of your message of 17 January 2006 is devoted to your claims that my request for independent review does not pertain to an action of ICANN's Board of Directors, and that actions by ICANN other than decisions made directly by the Board are not subject to independent review.

These claims are both incorrect and irrelevant.

Incorrect, because the Board of Directors is legally responsible for the actions of the corporation, including those of its officers, employees, subsidiary bodies, and other agents.

Irrelevant, because my request unambiguously and directly concerns an action by ICANN's Board: "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 appreciate your efforts to advise me, in advance, of what arguments you intend to make to the IRP, if you ever refer my request to an IRP. But I would prefer that you, and ICANN, first satisfy your obligation to refer my request to an IRP.

The next necessary and required step toward fulfilling ICANN's obligations under its Bylaws -- and toward fulfilling your asserted "standing agreement to have your concerns reviewed by an arbitrator", if you are sincere in such an offer -- is to schedule a maximally open and transparent meeting of the Board of Director to consider my request for a stay pending independent review, and to initiate the process of designating an IRP and developing policies and procedures for independent review.

I also note that, according to a message to the ALAC mailing list , "a discussion is going on in the Board at this time" concerning my request and/or independent review policy:

http://forum.icann.org/lists/alac/msg01531.html

I have received no notice of any such discussion by ICANN's Board, and can find no record of it on the ICANN Web site.

I remind you of my request of [8] April 2005, which you have ignored, for "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."

And I reiterate that, as I said in my message to you 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."

If there has been any discussion by the Board of my request for independent or of policies for independent review -- whether in person, by telephone, by e-mail, or otherwise -- I request copies of any records of that discussion in ICANN's possession or control, including any minutes, transcripts, audio recordings, or e-mail messages, in accordance with ICANN's obligation under Article III, section 1 of its Bylaws to "operate to the maximum extent feasible in an open and transparent manner".

I also request that this message be forwarded to each member of the Board of Directors, so that they will know that you, Messrs. Jeffrey and Cerf, have broken the promises you made to me so publicly at the Vancouver ICANN meeting, and that you have not, in fact, been willing to take the necessary actions to be able to refer my request to an independent review panel in accordance with the procedural requirements of ICANN's Bylaws.

This matter remains in the hands of ICANN's Board of Directors, as it has been since you and they received my request [8] April 2005. I request that the Board exercise its authority, and its legal and fiduciary responsibility, to act on this matter and to bring ICANN's actions -- including those of its officers and staff -- into compliance with ICANN Bylaws.

I look forward to a maximally open and transparent meeting of the Board to consider my request for a stay pending independent review, and to initiate the process of designating an independent review provider and developing policies and procedures for independent review.

Sincerely,

Edward Hasbrouck

A footnote: According to ICANN's Web site , comments on SITA's proposal to renew the .aero sponsorship agreement "must be submitted ... by 4 February 2006". No time of day or time zone for the deadline was specified, which presumably implies that the deadline would be midnight local time at the place of sending, place of receipt, or ICANN's headquarters. In my case all 3 were in the same time zone, since my comments were sent from San Francisco, received by ICANN in Marina del Rey, and posted on ICANN's Web site before the close of the business day on 4 February 2005, local time. But ICANN has docketed them as received 5 February 2006, UTC/GMT. I don't yet know if ICANN will try to use this -- despite their failure to have specified a time of day or time zone for the deadline -- as an exuse not to consider my comments.

[Addendum, 6 February 2005: In the copy of my message above, I've corrected the date of my original request for independent review, which was 8 April 2005, not 5 April 2005. I've also corrected the reference in item 5 in the list, which should be to Article III, Section 6.2 of ICANN's Bylaws.]

Link | Posted by Edward on Sunday, 5 February 2006, 11:39 (11:39 AM) | TrackBack (1)
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