Tuesday, 7 February 2006

Request for ICANN Board action on independent review

From: “Edward Hasbrouck” edward@hasbrouck.org
To: Vint Cerf vint@google.com , john.jeffrey@icann.org
Subject: RE: Request for ICANN Board action on independent review
Date sent: Mon, 07 Feb 2006 07:52 -0800
Copies to: [ICANN Board of Directors members], twomey@icann.org , committee@alac.icann.org

On 5 Feb 2006 at 22:22, Vint Cerf vint@google.com wrote :

“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?”

I have no “case to the ICDR”, and you should make no such assumption.

ICANN first mentioned the ICDR to me eight months after you received my request for independent review, and ICANN has never provided me with any basis for your claim that “the ICDR … has been designated the body to conduct Independent Reviews”.

I have previously requested both yourself and Mr. Jeffrey to provide me with (1) any procedures which ICANN has in place for independent review; (2) any ICANN decision appointing an IRP provider; (3) any agreement(s) between ICANN and any IRP provider(s); (4) any information that might cause you to believe that ICANN has complied with the procedural requirements of ICANN’s Bylaws in developing any such procedures, making any such appointment, or approving any such agreement; (5) notice of any meetings to be held by ICANN or any subsidiary body, 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 most recently (6) copies of any records of ICANN discussion of any of these issues in ICANN’s possession or control, including any minutes, transcripts, audio recordings, or e-mail messages of discussions by the Board of Directors.

I have received no response whatsoever to any of these requests, which I reiterate to you, Dr. Cerf, by this message.

If you believed in good faith that ICANN had such procedures in place and published on ICANN’s Web site, and had appointed an IRP provider, in accordance with ICANN’s Bylaws, at the time of my request for independent review, you could have told me that 10 months ago. You did not.

So far as I have been able to determine after diligent research, and in the absence of any attempt by you or anyone with ICANN to respond to any of my requests as listed above, or to provide me with any evidence to the contrary, ICANN has not appointed an IRP provider 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 you believe that “the ICDR … has been designated the body to conduct Independent Reviews”, I again invite you to provide me with any information that would provide a basis for such a belief. Specifically, I ask that you provide me with any information that causes you to believe that ICANN has made such an appointment in accordance with the seven specific requirements of ICANN’s Bylaws, applicable to policy decisions, enumerated in my message to you and Mr. Jeffrey of 5 February 2006:


I think it’s actually quite obvious that none of these procedural conditions has been fulfilled.

You may “assume” that by now I’m so tired of your delaying tactics, and will be so grateful that you are finally willing to allow some sort of arbitration (I can’t call whatever Mr. Jeffrey is proposing with the ICDR “independent” arbitration, since it appears that ICANN may have a pre-existing secret side agreement with ICDR, and [ICANN] may have been or be engaged in secret side communications with [ICDR] to which I have not been privy), that I will be willing to allow ICANN to disregard the procedural requirements of ICANN’s Bylaws, make up the rules for the arbitration as you go along, in secret, and impose both rules of your choice and an arbitration provider of your choice, unilaterally and retroactively.

If that is your assumption, you are mistaken.

Mr. Jeffrey has asked in his most recent message of 5 February 2006 if I object to him forwarding to the ICDR all of my correspondence with ICANN.

ICANN may forward any or all of my correspondence to whomever you wish.

I have been aware, in corresponding with ICANN, that ICANN is required to operate to the maximum extent feasible in an open and transparent manner , and that my correspondence is thus liable to be made public. And I submitted my request for independent review to ICANN with knowledge of Article IV, Section 3.13 of ICANN’s Bylaws, which requires ICANN to post it on ICANN’s Web site (although ICANN still has not done so).

But forwarding my correspondence to the ICDR or anyone else will not fulfill the requirement of ICANN’s Bylaws that, Requests for such independent review shall be referred to an Independent Review Panel , unless the ICDR or other entity has been duly appointed by ICANN as the IRP, and unless the referral is conducted in accordance with duly-adopted procedures which ICANN “has in place” and published.

So far as I know, neither of those conditions has been met.

The choice of an independent review provider and the development of procedures for independent review — the highest level of oversight provided for within ICANN’s structure — are policy questions of the highest significance to ICANN, and are subject to ICANN’s decision-making rules including those in Article III, Section 6 of ICANN’s Bylaws.

Just before the start of the public session of the ICANN Board of Directors on the morning of 4 December 2005 in Vancouver, you approached me in the lobby and asked if I had “gotten what I wanted” in Mr. Jeffrey’s message.

“I haven’t received any message from Mr. Jeffrey,” I answered you. (His message was sent by e-mail, and read by you without any opportunity for discussion or response, during the meeting later that morning. When Mr. Jeffrey was pointed out to me by someone else at the end of the meeting, and I walked toward him to try to talk to him, he ran away, zigzagging back and forth across the ballroom between the chairs to avoid me.)

“But I haven’t been asking for letters from Mr. Jeffrey. I’ve been asking for action by the Board of Directors,” I told you. “I am going into the meeting today still hoping to hear you and the Board consider and act on my request for stay pending independent review, and begin a policy development process to put in place procedures for independent review and appoint an IRP provider.”

If you believed that ICANN already had in place such procedures, and already had made such an appointment, you could, and should have said so. You did not. You said only, “There is no such matter on the agenda.”

When I replied, “Then I again ask that you place it on the agenda”, you turned your back on me without saying anything more, and walked off to start the meeting (at which, as you know, my requests were not considered, and no action was taken on them by the Board).

The next action is up to you, Dr. Cerf, as Chairman of ICANN’s Board of Directors, as it has been since you received my request for independent review during the Board of Directors meeting which you were chairing, and which was still in session, in Mar del Plata on 8 April 2005.

I continue to demand that you schedule and give proper notice of a maximally open and transparent (including, depending on the manner in which the meeting is held, provisions for public in-person attendance, telephone auditing, and/or Webcasting and remote participation) meeting of the Board of Directors at the earliest feasible date, and place on the agenda consideration and action by the Board on (1) my request for a stay of the Board’s decision on “.travel” pending independent review and (2) initiation of a policy development process, in accordance with the procedural requirements of the Bylaws, to put in place procedures for independent review and appoint an IRP provider.

Those are the necessary first steps toward being able to refer my request for independent review to a duly-appointed IRP, according to duly-adopted procedures which ICANN has in place. That is what I asked you to do, and what you should have done, 10 months ago.

The subject line of my previous message to you and to Mr. Jeffrey — which I specifically requested be forwarded to each member of the Board of Directors, as I request that this message be forwarded to the Board — was, “Request for ICANN Board action on independent review”. That is exactly, what that message was, and what this message is: a request for action by ICANN’s Board of Directors. Neither Mr. Jeffrey nor any member of ICANN’s staff has the authority to set policy, to appoint an IRP provider, or to determine procedures for independent review.

If you are somehow confused about what I am requesting, please get in touch and I will try to explain it yet again. But really I think you understand quite well what I have asked for, as I think you understood me on that one occasion when we actually met. The question isn’t whether you understand what I have been asking for, and what ICANN’s Bylaws require of ICANN and of you as Chairman of the Board. The question is whether you are willing to do what is required of you, and what you have promised to do.

If you are sincere in a good-faith offer to have my request referred to a duly appointed IRP according to duly-adopted procedures, then take the first step in that process by scheduling a Board meeting for that purpose.

If not, please provide me with an explicit statement, in your official capacity as Chairman of ICANN’s Board of Directors, that you refuse to place my request for a stay pending independent review on the agenda of the Board of Directors for its consideration, and that you refuse to have the Board consider initiating an ICANN policy development process to put in place procedures for independent review and to appoint an IRP provider.

I look forward to your reply.


Edward Hasbrouck

Link | Posted by Edward on Tuesday, 7 February 2006, 07:52 ( 7:52 AM)
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