Sunday, 5 February 2006
More evasions from ICANN
My e-mail message earlier today to ICANN got an uncharacteristically prompt, but characteristically unresponsive, reply just two hours later from ICANN's General Counsel and Corporate Secretary John O. Jeffrey, giving me a two-day deadline (after 10 months of delay) and continuing to mis-state my requests while completely ignoring all of the specific requests I have actually made (including for copies of ICANN records, for copies of ICANN independent review procedures if there are any, for copies of any agreements between ICANN and independent review providers, for ICANN's Board of Directors to consider my request for a stay pending independent review, and for ICANN to begin the process required by its Bylaws to properly designate an independent review provider and develop procedures for independent review). [Addendum: I also got a message a few hours later, as copied below, from ICANN Board of Directors Chairman Vint Cerf.]
The good news is that ICANN now seems, perhaps, to actually be willing to submit to some sort of arbitration. (I can't call it "independent" arbitration: Mr. Jeffrey has ignored my requests for copies of any pre-existing agreements between ICANN and potential arbitration providers. And his message below suggests that ICANN is having secret side discussions with a potential arbitration provider concerning the procedures to be followed.)
The bad news is that Mr. Jeffrey appears willing to refer the issue of ICANN's lack of openness and transparency to an arbitrator only if he and ICANN are allowed to make up the rules as they go along, in secret, and to impose both rules of their choice and an arbitration provider of their choice, unilaterally and retroactively, rather than following the procedures required by ICANN's Bylaws for the independent review policy development process.
Dear Mr. Hasbrouck,
I believe that your note (and to some extent other feedback that I have received) indicates that your concern was that I was unilaterally denying you access to the process and I assure you that this was not my intent. As you are aware we have provided you links to the ICDR policies and have outlined what you must submit to them.
You have not done so and now are questioning this process rather than agreeing to submit to it, once again if I am reading your note correctly. That said, however, I am now choosing to ignore your failure to comply with this basic requirement and will forward your IRP request on to ICDR, the designated entity to receive it.
Based upon the confusion relating to this, we are going to work with ICDR to allow for direct filing of ICDR complaints in the future that would provide a web form to fill out a formal statment of claim which would include those things required under the ICDR process. Please let us know if you believed that would have clarified this issue with you in this instance.
I do not know exactly what to send to ICDR that has complied with the rules, so I will send them all historical correspondence that ICANN has received from you to date. If you object to this please contact my offices before Tuesday, 7 February 2006 at 5PM PST.
If you do not object I will assume that you are requesting us to submit this to our IRP process and also assume that you are accepting the responsibility for all associated costs which will affix to your complaint. Therefore, I will no longer concern myself with your perceived lack of following the process and will simply forward on to ICDR, all writings that you have provided to ICANN.
It was not and has never been my intention to refuse to refer your complaint to the ICDR. Indeed, the end of my letter stated clearly that:
"If you feel that I have misstated your concerns, and you believe that grounds still properly exist under the Bylaws for independent review, ICANN's standing agreement to have your concerns reviewed by an arbitrator remains and will proceed upon receipt of your formal IRP request."
I do not intend to, nor have I asserted a role of being a gatekeeper between you and the ICDR. All I have asked time and time again is for you to acknowledge that you are willing to accept the expenses of moving forward, and that you understand our arguments about why your claims are deficient. Although tempted, I will not again set out ICANN's defenses in this matter, but please do not in any way see this as a failure on ICANN's part of pursuing our defenses including among those our likely defense that you have failed to set out an understandable claim or to follow the basic process for commencing an IRP.
General Counsel & Secretary
Internet Corporation for Assigned
Names and Numbers
4676 Admiralty Way
Marina del Rey, CA 91206
Addendum, 5 February 2006: I got the following additional message later today:
Link | Posted by Edward on Sunday, 5 February 2006, 18:14 ( 6:14 PM)
From: "Vint Cerf" firstname.lastname@example.org
To: "Edward Hasbrouck" email@example.com , firstname.lastname@example.org
Subject: RE: Request for ICANN Board action on independent review
Date sent: Sun, 5 Feb 2006 22:22:53 -0500
Copies to: "email@example.com": mailto:firstname.lastname@example.org , email@example.com
I think counsel has just suggested that you proceed with your case to the ICDR which has been designated the body to conduct Independent Reviews.
Can I assume that you will now do so?
Vinton G Cerf
Chief Internet Evangelist
13800 Coppermine Road
Herndon, VA 20171
+1 703 234-1823
+1 703-234-5822 (f)