Friday, 6 October 2006
ICANN again ducks questions on independent review
Lack of transparency and accountability is ICANN's Achilles heel.
The more public and governmental scrutiny of ICANN focuses on transparency and accountability, the harder it is for ICANN to explain why they haven't acted on the request I made in April 2005 for an independent review, as provided for in ICANN's bylaws, of whether the process by which ICANN decided to authorize a ".travel" top-level Internet domain complied with ICANN's own bylaws on transparency.
Statements by ICANN over the last two weeks suggest that ICANN might finally be willing to allow some sort of review, if and only if I'm willing to abandon my original request, and make a new request under new rules, thereby (A) letting them make up the rules as they go along, secretly, unilaterally, and retroactively, and (B) letting them off the hook for not having bothered to comply with any of the procedural rules that are supposed to govern their decision-making on policy matters like the selection of the arbitration provider and the adoption of independent review procedures.
But acquiescing to this would defeat the principles that led me to file my request in the first place: I want ICANN to follow its own rules, particularly with respect to procedural due process. And it would be pointed to (wrongly, but plausibly for the casual observer) as evidence that they have cleaned up their act and held themselves accountable.
Quite simply, I'm not willing to participate in a whitewash of ICANN's past violations of its own rules. ICANN remains obligated to act on my original request, and to demonstrate that any decision to designate an independent review provider or approve procedures for the review has been made in accordance with both the procedural and substantive requirements of ICANN's bylaws. That's what I'm entitled to under those bylaws, that's what I've asked for, and that -- and nothing less -- is what I insist on. I will not waive or forfeit my rights.
Two weeks ago ICANN's President, Paul Twomey, came under questioning from the U.S. Congress as to whether ICANN has in place provisions for appellate or quasi-appellate review of its decisions sufficient to justify the termination of the USA government's controversial (and often misused) oversight power over ICANN's compliance with its procedural rules. Twomey told the House of Representatives that "we do have an established system for review", but that "We have had no party take an appeal to the final stage, the arbitrator, to conclusion." Not, of course, that I haven't tried.
Last Friday, 29 September, ICANN held an invitation-only telephone press conference to announce their new contract with the USA government. They didn't announce the press conference publicly (in violation of their bylaws on transparency and their promises to include me in such events), but word got out and I was able to participate.
I asked Twomey what the basis was for his claim to Congress that the independent review process is "established", in spite of the fact that no action has been taken on my request (or, though I didn't ask about them, any of the other pending requests for independent review of ICANN decisions).
"I can't answer specifically to that question.... I'll come back to you, quite specifically, ... in writing on that", Towmey told me. "I will insure that it's fully communicated to you."
I'm still waiting, as I've been waiting for the last year and a half, and as I'm still waiting for answers to my other unanswered questions about independent review and about my separate requests for reconsideration of the closing of another ICANN meeting and for notice of ICANN press announcements and events.
ICANN never intended to allow an independent review of their procedures, they don't pay much attention to compliance with any of their bylaws, their lawyers' work is often sloppy, and the members of ICANN's Board of Directors rarely question the advice they get from the staff.
So ICANN never carried out the policy development process -- for which, as for any decision setting policies or imposing fees, ICANN's bylaws require specific procedures including public notice, opportunity for public comment, consultation with ICANN's Government Advisory Committee, a public, publicly announced meeting of the Board of Directors, and posting of the minutes of the meeting and the adopted procedures on the ICANN Web site --- to implement the provisions of their bylaws requiring ICANN to designate an independent review provider and approve procedures for independent review.
The only thing ICANN did do to "implement" the independent review bylaw was a half-baked resolution passed at one of the Board of Directors' secret phone conferences for which no minutes have ever been posted, that wouldn't pass muster on even a cursory comparison with either the procedural rules in ICANN's bylaws for a policy development process, or the substantive requirements in those bylaws for independent review. Someone on ICANN's staff, or one of their overpaid outside lawyers, threw it together without ever thinking about how a process for resolving commercial disputes between parties to contracts (the standard international arbitration procedures) would actually work as a format for quasi-judicial psuedo-appelate review of ICANN decision-making procedures. Since there was never any public comment, no one had a chance to point this out, and the Board of Directors rubber-stamped the staff recommendation without bothering to compare it with the bylaws.
For a long time after I made my request, ICANN tried to ignore me completely. ICANN's Board of Directors has yet to consider my request, or has done so only at a closed meeting or through some other secret means such as a non-public e-mail list. I've asked for all ICANN records, and notice of any ICANN meetings, related to my request -- and would be entitled to them, under ICANN's bylaws, to "the maximum extenst feasible" -- but I've gotten nothing in response.
Eventually -- probably sometime after I went to ICANN's meeting in Vancouver in December 2005 to confront them publicly with their failure to follow their own rules, and maybe not until after the show of support for my request during the public forum at their meeting in Wellington in April 2006 -- they realized that wasn't going to work.
So ICANN shifted to a fallback position based on the earlier Board of Directors resolution at a secret meeting, and the contract which was (they now claim, although it remains secret) executed between ICANN and an arbitration provider on the putative authority of that resolution.
ICANN is now trying to pretend that they have had procedures in place all along, which I could have used, and that they are earnestly trying to help me out of my "confusion" about how to jump through their ever-changing hoops -- even while they continue to ignore the request I've already filed, the questions I've already asked, and of course the rules in their own bylaws.
Only my "confusion", not ICANN's stonewalling, they would have you believe, has kept my request (which ICANN doesn't even admit that I have actually filed) from being acted on.
Chairman of the Board Vint Cerf's took this disingenuous line during the press call Friday: "I would have thought that an independent review would need to be initiated by the party seeking it, which probbaly means that you need to do something." As if there was anything more I could have done to get ICANN to act on my request.
Following the press call, Kevin Murphy of ComputerWire took the bait, and contacted "ICDR", the division of the American Arbitration Association that ICANN claims to have designated to conduct any independent review. I presume there's been some behind-the-scenes coaching by ICANN (i.e improper ex parte communication with the arbitration provider during the pendency of the arbitration, if ICDR really has been so designated), since the same organization that told me they'd never heard of ICANN told Murphy that it "serves as Independent Panel Review organization" for ICANN. Needless to say, I've received no notice from ICDR, or from ICANN, of this about-face.
As ICANN no doubt hoped, Murphy didn't try to follow through on a request, or look closely enough to see what it would entail or if it would be possible. As linked from Murphy's blog , the forms he was told to use require you to be a party to a contract with an arbitration clause (I'm not, and ICANN's bylaws don't require me to be) and submit a copy of said contract. The only contract that could possibly be invoked would be ICANN's contract (if any) with ICDR, but ICANN hasn't released that contract. Even if I wanted to make a new request following ICANN and ICDR's newly made-up rules, I couldn't.
ICANN's real problem, as I'm sure that they have realized by now, is that they don't actually have any valid independent review procedures in place . But having committed themselves publicly, and in testimony under oath to Congress, to the claim that such procedures are already "established" and available to anyone with a complaint against ICANN, there is no face-saving way for them to admit that ICANN needs to start over from square one with a public policy-developmeent process to designate the reviewer and adopt review procedures before they will be able to act propoerly on my, or any other, request for independent review.
On Friday afternoon, 29 September, obviously as a result of my questions during the press conference earlier in the day, a new accountability page went up on the ICANN Web site, purporting to "explain" how to file an independent review request. But all it has is a link to the ICDR home page, not the actual procedures for independent review (as required by ICANN's bylaws) or copies of the requests for indpendent review (as also required). ICDR's home page has links to procedures for several different types of arbitration, none of which are identified as applying to ICANN and none of which conform to the requirements of ICANN's bylaws for idependent review procedures.
On Monday, 2 October, I got a call from ICANN Senior Counsel Amy Stathos. That's a first -- no one from ICANN's staff or Board of Directors has ever before called me or taken any of my phone calls. Stathos initially claimed that General Counsel and Corporate Secretary John Jeffrey had referred my messages to her to "answer my questions" and "help me file a request", but she professed surprise when I said I already had filed a request. And when I started to go through the list of unanswered questions Jeffrey had promised (months ago) to look into, she said she knew nothing about any of them and couldn't answer any of them.
Stathos did, however, say that ICANN has a contract with ICDR, and that she will send it to me (she couldn't say when, and I'm still waiting). When I pointed out that none of the different ICDR procedures were consistent with ICANN's bylaws, she said that "Where there is a difference between them, ICANN's bylaws would govern."
Apparently, someone who wants to make a request for independent review is first supposed to find their way to the ICDR home page, then -- in the absence of any reference to ICANN -- correctly guess which set of ICDR procedures (none of them, on their face, capable of satisfying ICANN's bylaws) are "approved" by ICANN's secret contract with ICDR, and then correctly guess again which portions of those rules are overridden by ICANN's bylaws. Once you've guessed all that correctly, you know exactly how ICANN wants you to proceed.
Finally, Stathos had me send her (yet again) the previous messages from Jeffrey promising to respond to my questions, and said she would "look into them" (the same language Jeffrey used months ago) and get back to me "as soon as possible". She couldn't say if that meant days, weeks, months -- or perhaps another year and a half.
[Addendum, 12 October 2006: Confirmatory e-mail message from Amy Stathos, Senior Counsel at ICANN: "I did receive your e-mails and will get back to you as soon as I can."]
[Further addendum, 7 November 2006: I got a brief e-mail message from Dr. Vint Cerf, Chairman of ICANN's Board of Directors (and V.P. of Google, Inc.), still pretending not to understand what I want ICANN to do. I've responded to explain it to him yet again, and ask that ICANN place this on the agenda for their upcoming December 2006 meetings in São Paulo, Brazil.]