Monday, 24 April 2006

"Independent Review Provider" has never heard of ICANN

The saga continues: The arbitration company ICANN claims to have designated to provide "independent review" of whether ICANN's decisions are consistent with ICANN's Bylaws says they've never heard of ICANN. And in order to make a request to them for arbitration, I'd have to provide them with a contract which, if it exists at all, ICANN has refused to provide me, in spite of a year of explicit requests:

From: "Edward Hasbrouck" edward@hasbrouck.org
To: Vint Cerf vint@google.com , john.jeffrey@icann.org , [ICANN Board of Directors members], jkneuer@ntia.doc.gov
Subject: IRP designation and IRP procedures
Date sent: Mon, 24 Apr 2006 00:11:39 -0700
Copies to: twomey@icann.org , cgutierrez@doc.gov , committee@alac.icann.org , forum@alac.icann.org

Members of the Board of Directors, Chairperson Cerf, and Corporate Secretary Jeffrey:

Since there is still no designated e-mail address for ICANN's Board of Directors as a whole, I request that Secretary Jeffrey forward this message to each member of the Board of Directors.

I am writing to you in light of (1) your continuing failure to take any action on my outstanding requests for independent review and stay pending independent review, (2) your continuing failure to take any publicly visible step toward a policy development process to designate an independent review provider or put in place procedures for independent review of ICANN decisions, (3) your continuing failure to respond to my requests for information concerning the independent review process, including the specific questions concerning those procedures in my messages to you of 5 February 2006 and 7 February 2006 , and (4) Dr. Cerf's remarks regarding my request during your public forum in Wellington on 30 March 2006.

I'm not sure why you won't respond to my requests, but will respond to the public about my requests. I believe that, if ICANN is to bring itself into compliance with its Bylaws and its contractual commitments to the USA Department of Commerce, you will eventually need to schedule a meeting where we can discuss this directly. I urge you to do so as soon as possible, rather than to continue your avoidance, obfuscation, and delay.

In his comments to the public forum, Dr. Cerf began by grossly mischaracterizing my request as, "A LETTER FROM EDWARD HASBROUCK, WHICH REPEATS MOST OF HIS CONCERNS ABOUT DOT TRAVEL AND THE INDEPENDENT REVIEW PROCESS."

As you know, my message to the public forum did not, in fact, repeat any of my substantive concerns about .travel. My message did not even mention them. As you know, my message was concerned solely with my requests for independent review and stay pending independent review. If it repeated some of my questions, that was only because I had received no response whatsoever from ICANN to my previous e-mail message posing those questions on 7 February 2006. And as you know, my request for independent review is concerned solely with the (lack of) openness and transparency in the procedures followed by ICANN's in making its decision on .travel. It is not, and could not be, based on anything related to my substantive concerns about .travel.

It is difficult to interpret this public mischaracterization of my message as anything other than a deliberate, bad-faith attempt to mislead the audience in Wellington, and watching the Webcast of the public forum, as to what issues I was raising.

Dr. Cerf continued:

"MR. HASBROUCK CONTINUES TO BE CONFUSED , I THINK, OR AT LEAST APPEARS NOT TO BELIEVE THAT THE ICANN BOARD HAS, INDEED, DESIGNATED THE INTERNATIONAL CENTER FOR DISPUTE RESOLUTION AS ITS INDEPENDENT REVIEW PROCESS OPERATOR.

"ON 19 APRIL 2004, UNDER BOARD RESOLUTION 4.33, THE BOARD DID IN FACT NAME [ICDR] ITS IRP OPERATOR."

I'm not "confused". Neither, I think, are you. As you know, and as I pointed out to you in my message of 11 December 2005 analyzing ICANN Resolution 04-33, that resolution does not name ICDR as ICANN's IRP operator. That resolution merely authorizes (but does not require) a contract with ICDR to provide services (unspecified) in accordance with a (secret) proposal.

http://hasbrouck.org/blog/archives/000964.html#ICDR

The resolution does not mandate such a contract. You have declined to state, and it is impossible for me to know, whether any such contract was in fact concluded, or if so, what it says. Nothing in the resolution indicates that the contract, if there is one, would be exclusive or constitute the designation of ICDR as the (singular) IRP provider. Indeed, the language of Resolution 04-34 , "adopted" (I do not concede that the closed teleconference on 4 April 2004, without the required notice or transparency, constituted a valid meeting) at the same time, strongly suggests that any contract entered into pursuant to Resolution 04-33 might not have been exclusive. Finally, there is no mention in Resolution 04-33 of IRP procedures, which ICANN Bylaws require to be approved by the ICANN Board and posted on the ICANN Web site.

"SO IF MR. HASBROUCK IS CONCERNED THAT WE HAVEN'T OFFICIALLY DONE THAT, THAT'S THE CITATION THAT SHOULD PUT THAT UNCERTAINTY TO REST."

Since you were fully aware of my questions concerning Resolution 04-33 , and were fully aware that ICANN has neither acknowledged nor made any attempt to respond to them, you had no basis for any good-faith belief that mere citation of that resolution would "put to rest" those concerns. Your claim to that effect to the Wellington public forum appears to have been a further bad-faith attempt to deceive people at the meeting, and the public, concerning the degree of your (un)willingness to provide any justification for your continued inaction on my requests.

"FINALLY, WHAT I'D LIKE TO STRONGLY RECOMMEND IN RESPONSE TO MR. HASBROUCK'S E-MAIL IS THAT HE DEAL DIRECTLY WITH THE INTERNATIONAL CENTER FOR DISPUTE RESOLUTION.

"THE METHOD FOR INITIATING AN INDEPENDENT REVIEW IS, IN FACT, TO DEAL WITH -- DIRECTLY WITH THE OPERATOR OF THE INDEPENDENT REVIEW PROCESS."

In fact, as you know, ICANN's Bylaws require that ICANN must refer requests for independent review to the IRP provider. The requester herself or himself could not make the request directly to the IRP provider (even if ICANN validly had designated an IRP provider and approved procedures for independent review, which it has not).

MY UNDERSTANDING IS THAT GENERAL COUNSEL HAS SUPPLIED TO MR. HASBROUCK POINTERS TO THE [ICDR]. BUT IF FOR SOME REASON THOSE AREN'T AVAILABLE TO HIM OR THEY'VE BEEN LOST, I'M SURE THAT GENERAL COUNSEL CAN SUPPLY THAT AGAIN....

Mr. Jeffrey has supplied no response to my specific questions concerning ICDR in my e-mail message to him and you of 11 December 2005, my questions concerning IRP procedures in my e-mail to him and you of 5 February 2006, or any of my previous requests for any agreements(s) between ICANN and any provider(s) of IRP services:

In may be that Mr. Jeffrey "can" supply more information concerning any agreement(s) that may exist between ICANN and ICDR, or ICANN's contacts at ICDR. But Mr. Jeffrey has not, in fact, been willing to supply me with any such information. If Mr. Jeffrey is in fact able to do so -- as you now claim -- and has refused to do so by choice rather than by inability, that only exacerbates his culpability for this deliberate nonfeasance as an officer and staff person of ICANN.

If Mr. Jeffrey is now willing to supply this information, my unanswered questions concerning the IRP provider and the procedures for independent review are at:

http://hasbrouck.org/blog/archives/001007.html#procedures

There is, of course, a specific manner in which ICANN is required to "supply" the public with information concerning the procedures for independent review: Once those procedures have been approved by the ICANN Board of Directors under Article 4, Section 3.5 of your Bylaws, you are required by Article IV, Section 3.13 to post them on the ICANN Web site . You have not done so.

As you know, the only "pointer" to the ICDR that Mr. Jeffrey has supplied to me is the URL of the ICDR home page .

There is no mention whatsoever at that URL of ICANN or of procedures for independent review of decisions by ICANN. I have searched the ICDR Web site diligently, and I have found no mention on that Web site of independent review of ICANN decisions, the designation of ICDR to provide such review, any agreement(s) between ICDR and ICANN, or any procedures identified as applicable to independent review of ICANN decisions.

There are several sets of rules and procedures for different types of arbitration listed on the ICDR Web site. After careful review of each of them, it does not appear to me that any of them could, without substantial modification, satisfy the requirements of ICANN's Bylaws for independent review.

Among other defects, the various ICDR rules and procedures all appear to be designed for arbitration of disputes between parties to contracts. But ICANN's Bylaws provide that "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." Independent review is not limited to parties to contracts with ICANN, and a set of rules and procedures applicable only to disputes between parties to contracts could not satisfy the requirements of ICANN's Bylaws.

Although I was not required to do so, I have, as Dr. Cerf "recommended", contacted the ICDR for their reaction to what I have been told by Dr. Cerf and Mr. Jeffrey. On 14 April 2006, I called the phone number on the ICDR home page, +1-212-484-4181.

The person who answered the phone declined to give their name, but said that, "No, we have no contract with ICANN". They also said that, "When you submit a request to us, you have to also submit a contract" providing for arbitration by ICDR -- which, of course, I would be unable to do, since I have no contract with ICANN or ICDR, and ICANN has refused to provide me with its contract(s), if any, with ICDR or with any other provider(s) of IRP services. "Without a contract, we cannot initiate the process", the person at ICDR said. They said that ICDR has two different sets of procedures for different types of arbitration, and they couldn't tell which, if either, might be applicable to independent review of decisions by ICANN.

I told them that I had been referred to ICDR by ICANN, and that ICANN had told me ICANN has designated ICDR to provide independent review of ICANN decisions. They told me that they knew nothing about this, and suggested that I contact ICANN.

When I asked ICDR if they could suggest any other possible source of information as to how to initiate a request for ICDR to arrange an independent review of an ICANN decision, they referred me to their "corporate office" at 1-800-778-7879. At that number, I was connected to the USA national customer service center of the American Arbitration Association (AAA). The AAA seemed to be trying sincerely to be helpful, but equally sincerely puzzled. They referred me back to ICDR, suggesting that I ask for Mr. Thomas Ventrone, Vice President of ICDR.

So I called ICDR again and asked for Mr. Ventrone. When I did so, I was directed instead to Mr. Tom Simotas, Case Intake Supervisor for ICDR. He assured me that he was the person responsible for determining how to handle requests to ICDR for arbitration, and he seemed to be trying to help. But he was puzzled:

Does ICDR have any procedures applicable to independent review of decisions by ICANN? "Not at the moment."

Has ICDR been designated to provide independent review of decisions by ICANN? "Not that I know of."

Does ICDR have any agreement with ICANN? "Not that I'm familiar with. I've never heard of ICANN."

Does ICDR have any procedures that would permit someone to request arbitration without being a party to a contract? "The text of the arbitration clause of the contract must be submitted with the request for arbitration."

If you were to receive a request for independent review of a decision by ICANN, what would you do with it. "Nothing. We couldn't do anything with it."

Can you suggest any way that I could find out how to initiate a request for independent review of a decision by ICANN? "You'd have to ask ICANN about that."

Do you know why ICANN referred me to you? "I don't know."

In only one respect was the response I received from ICDR consistent with the claims made to me by ICANN: Mr. Jeffrey had also said, in his letter to me of 17 January 2006 , that a request under ICDR procedures (he didn't specify which of the several sets of ICDR procedures) must include "a reference to the arbitration clause or agreement that is invoked."

In my e-mail of 17 May 2005 , I requested that ICANN "provid[e] 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)." To date, you have not done so -- in spite of your own claim, confirmed by ICDR, that it would be necessary to provide a copy of such an agreement with ICDR in order for ICDR to be able to act on any request.

Interpreted in the most favorable light, your statements amount to a claim that in order to initiate a request for independent review, I must first provide a copy of a document which is under ICANN's exclusive knowledge and control, and which you have refused to provide me, in spite of repeated explicit requests.

If you believe in good faith that, as you have claimed, ICANN has designated the ICDR as its exclusive IRP provider, and that (as ICDR has confirmed), any request under ICDR's standard procedures would require the maker of the request to provide a copy of the arbitration agreement before ICDR could act, your refusal to provide me with that document completely precludes any possibility for me to pursue a request for independent review according to the procedures you have recommended.

As such, it is an inexcusable act of wilful nonfeasance in your capacity as officers, staff, and directors of ICANN, which completely frustrates any possibility of independent review.

You have no authority under ICANN's Bylaws to pick and choose who will be allowed to initiate a request for independent review, by picking and choosing to whom you will disclose the agreement which must be provided in order to initiate such a request.

I again demand that you provide me, forthwith, with a copy of any agreement(s) or purported agreement(s) between ICANN and any provider(s) of independent review services, and with a full explanation of why you did not provide these documents in response to any of my previous requests.

And I demand of each member of the Board of Directors that you either compel the officers and staff of the corporation to comply with the Bylaws, or replace them with officers and staff who will do so.

The ICANN Board of Directors "meeting" of 19 April 2004 was conducted in secret by closed teleconference (in violation of ICANN's Bylaws), and to date no minutes of that "meeting" have been published on ICANN's Web site (in violation of your Bylaws). The proposal by ICDR referred to in Resolution 04-33 was and remains secret (in violation of your Bylaws), as is the contract (if any) entered into pursuant to that resolution. Even the fact of whether any such contract was entered into remains secret.

As a result of this secrecy, it is impossible to know what the Board of Directors thought you were doing when you "approved" Resolution 04-33, or what, if any, advice you received from staff and counsel. But I believe that you are intelligent people, and I presume that by now you have realized that in acting on that resolution, you did not comply with the procedural requirements of ICANN's Bylaws for such a policy decision.

Had you published the proposals, and the reasons for them, for the requisite period of public comment, or conducted the bottom-up consensus-based policy development process you claim to follow (but rarely follow in practice), members of the public undoubtedly would have pointed out the discrepancies between any of ICDR's sets of standard procedures and the requirements of ICANN's Bylaws.

Your "adoption" of Resolution 04-33, in spite of its substantive and procedural defects, is symptomatic of chronic flaws in ICANN's decision-making process:

  • lack of concern for noncompliance with ICANN's Bylaws or ICANN's contracts with the USA government,
  • excessive reliance by members of the Board of Directors on recommendations of staff and counsel,
  • failure of the Board to exercise its own due diligence,
  • policy-making through secret contract negotiations rather than through public meetings or deliberations,
  • failure to make proposals public before they are adopted, and
  • lack of public notice or opportunities for public comment.

I hope that this will be a lesson to you for policy making in other areas.

It's time for you to stop ignoring me, stop stalling me, stop trying to put me off or send me down dead ends. Admit that you made a mistake, and that you need to schedule a public meeting, with proper notice, as soon as possible, to consider how to begin the process of designating an IRP provider, developing procedures for independent review, dealing with my requests for independent review and stay pending independent review, and dealing with the other outstanding requests for independent review.

I appeal to each of you individually as members of ICANN's Board of Directors, officers, and staff to take prompt action to bring the corporation, its officers, and its staff into compliance with its Bylaws and its contractual commitments.

And I again call to the attention of the Secretary of State of California, and the USA Department of Commerce, that ICANN does not, in fact, have in place oversight procedures for independent review of its decisions, as required by its Bylaws and its Memorandum of Understanding (MOU) with the Department of Commerce. Accordingly, I request that they initiate appropriate proceedings to bring ICANN into compliance with its obligations, to revoke its corporate charter from the state of California, and/or to terminate the MOU for breach of contract by ICANN

Sincerely,

Edward Hasbrouck

[Addendum, 24 April 2006: Response from John Jeffrey, ICANN's General Counsel & Secretary: "We will immediately check on the response that you report to have received from ICDR. As previously outlined to you in a number of different communications, the ICANN Board has designated the ICDR as the IRP provider. We will do everything that we can to facilitate your submission of an IRP to the ICDR. We are currently discussing with ICDR the creation of a web form for direct submission of the IRP requests to avoid any such confusion in the future."]

Link | Posted by Edward on Monday, 24 April 2006, 00:13 (12:13 AM) | TrackBack (0)
Comments

Curiouser and curiouser, Alice!

I guess someone should be out there tilting at
windmills...

But surely you can't be the only one?

If ICANN is so unresponsive and recalcitrant, then
where is the angry swarm of other complaintants? Has
everyone else given up and resigned to the status quo,
as dictated to them by ICANN?

So ICANN swat away a few minor irritants, while either
A) selling out to the big-money interests, or B) doing
nothing for so long that other countries get fed up, and
start running their own root. (Wouldn't THAT be fun!)

Anyway, sooner or later people are going to realize that
the small number of TLDs is an artifically-created
shortage. When that occurs, they will naturally act to
correct it. To the extent that ICANN attempts to impede
that progress, they will be worked around and made
irrelevant. This might happen in as little as a couple
of years, or it might take another decade. But it will
happen.

Posted by: Anon Y. Mouse, 25 April 2006, 00:27 (12:27 AM)
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