Sunday, 10 December 2006

ICANN reveals they secretly rejected one of my requests

In response to my latest message to the Internet Corporation for Names and Numbers (ICANN) questioning the accuracy of their ICANN Reconsideration Committee’s report for 2006 and the absence of any published report for 2005, the Internet governing body revealed during their latest meeting in São Paulo, Brazil last week that they had (secretly) considered my request for reconsideration of the secrecy of one of their meetings, (secretly) decided, on the basis of a determination by ICANN’s Ombudsman, to reject my request as “frivolous”, and (secretly) decided that it would not be “appropriate” to reveal publicly, or notify me of, their decision or the reasons for it or include it in any of their reports.

As much of an explanation as ICANN deigned to give is contained in the transcript of their meeting. (Search the transcript for “Hasbrouck” for the relevant section.)

It was difficult to be able only to watch and listen to the Webcast — I had received no notice that the issue would be discussed, and thus was at home in San Francisco — while I and my attempts to report on ICANN’s secret decision-making on travel-related top-level domain names were being slandered to a global audience by people who knew that I was ten thousand kilometeres away and unable to respond.

I’m very grateful to Professor Michael Froomkin for rising to my defense, less with respect to the announcement of the previously-secret action on my reconsideration request than with respect to how I’ve been treated by ICANN in general, and my still-pending request for independent review on a separate matter (similar only in also being brought by me, as a journalist, pursuant to the requirement in ICANN’s bylaws that “ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner”).

From the transcript, here’s his exchange with the Chair of ICANN’s Board of Directors, Dr. Vint Cerf of Google:

>>VINT CERF: … Next comment, please?

>>MICHAEL FROOMKIN: Hello. My name is Michael Froomkin. I teach law at the University of Miami.

I just wanted to say something in relation to the Hasbrouck matter. I have followed this along through the public documents. I don’t have access to anything but the public documents. And particularly in connection with his reconsideration request, and now his attempts to go and get some sort of outside arbitration, I don’t think ICANN has acted in a manner which paints it in a terribly good light. Again, I speak only from what’s available to the public, but it’s been a truly astonishing attempt by the staff to really play slow ball, to at one point suggest he dropped his request when there had been nothing from him that suggested that, and I’m somewhat concerned by the tone of what we just heard from the staff because it really gives a sort of a human tone dripping with venom, practically, to what until now has just been a series of rather dry, you know, sort of lawyerly, you know, missives going back and forth in the ether. I don’t know, you know, what the actual merits are. I have a suspicion that there really is much more to it than the ICANN staff thinks, but I don’t know that.

I do know that from a process point of view, this man has not been treated in a way which I think any organization which you board members wish to be a part could possibly be proud, and I urge you as board members to look at this full correspondence , take it seriously, please do not just rely on the staff’s, I think, personal antagonism at this point to decide your view of the process points here, which I think are much more significant even than the merits. Because the message sent to the community here is, if you dare to, you know, try to exercise your rights under the bylaws, and if you, you know, quote chapter and verse, people are going to try to paint you as a nut, and that’s not the message you want to send.

>>VINT CERF: Michael, I do have a message I’d like to send, please.

I have dealt with Mr. Hasbrouck personally. I’ve received e-mail from Mr. Hasbrouck. We have attempted repeatedly to help him with his independent review requests, and I can tell you that generally speaking, Mr. Hasbrouck isn’t willing to accept much in the way of help or guidance.

>>MICHAEL FROOMKIN: With all due respect —

>>VINT CERF: And — I’m sorry. May I complete my observation?

His insistence, after we tried to help him go to the independent review panel, was to come back and say, Well, the IRP wasn’t properly constituted.

After a while, even the ombudsman concluded that this was not a constructive attempt by Mr. Hasbrouck to do anything except continually badger the staff and the rest of ICANN.

And if you consider that to be a pejorative statement, I’m sorry, but I’m trying to make it an honest statement of fact.

>>MICHAEL FROOMKIN: I believe the IRP is not properly constituted. I believe his argument on that is legally correct. That’s part of the reason why I think there’s a difference here. I think that the board — the requirements of what the board has to do to constitute it are very clear. The publication requirements for the process are very clear. And I don’t actually think they’ve done that. That’s part of what I was referring to.

So we may have a disagreement on the substance here, but my conclusion — you know, it’s a lawyer speaking just purely for myself — is that he’s actually got the better of that particular part of the argument.

>>VINT CERF: Then we definitely disagree.

I won’t attempt to respond point by point to the misrepresentations of the procedural history of my requests by Dr. Cerf and other ICANN staff and Board members, other than to note the absurdity of their claim that by stonewalling on my request, they have been trying to “help” me, and that no member of the ICANN Board of Directors (other than Dr. Cerf in his capacity as Chair) has, so far as I know (I wouldn’t recognize many of them if I met them) ever exchanged a single spoken word or e-mail message with me — even when I went, at my own expense, to their meeting last year in Vancouver to try to talk with them.

Just before the week-long ICANN meeting in São Paulo, ICANN Senior Counsel Amy Stathos sent me a message which neither acknowledged nor responded to any of the specific requests and questions I had asked, and failed to provide the one document — ICANN’s agreement(s) with the entity they now claim to have designated as their Independent Review Provider — which she had specifically promised to send me during our one brief phone conversation.

Ms. Stathos offered to forward my correspondence to the purported IRP, but offered no explanation of why ICANN hadn’t done so long ago, if they really believed they had duly designated an IRP, especially given General Counsel John Jeffrey’s previous explicit promises in writing and verbally during ICANN’s Vancouver Board meeting that they would do so. As I said in Vancouver, I’m still waiting.

Ms. Stathos also offered to arrange a conference call about my request for independent review with ICANN and the purported IRP providers (ICDR) at the American Arbitration Association (AAA). I’m not sure how or whether the participation of ICDR/AAA will advance the discussion, but this is the first time ICANN has ever indicated any willingness to actually discuss any of my requests with me, and I intend to take them up on this offer. Since ICANN is required to “operate to the maximum extent feasible in an open and transparent manner”, I’ll do my best to ensure that other interested parties, including the makers of the other pending requests for independent review, are able to participate in and/or audit the conference call.

As for my request for reconsideration , I’m obviously upset that the Reconsideration Committee decided I and/or my request were “frivolous”. But that’s a judgement call they were entitled to make, as long as they did so in good faith and an open and transparent manner. Since their decision-making was entirely and impermissibly secret, it’s impossible to tell whether they really thought it a frivolous request, or merely an embarrassing request calling attention to procedural gaffes that they didn’t want to have to face up to.

I’m more fundamentally disturbed by two other aspects of ICANN’s action:

One: The stated basis for the Reconsideration Committee’s determination of “frivolity” was a recommendation from ICANN’s Ombudsman, based entirely on my having sought (unsuccessfully) the assistance of the Ombudsman in two entirely distinct matters.

It seems highly improper that the fact of having sought to work things out informally, with the assistance of the Ombudsman, should be held against someone who subsequently escalates their request to ICANN’s formal procedures for reconsideration or (if procedures for such were in place) independent review.

Equally problematic is what, if any, basis the Ombudsman would have had for their recommendation. I never sought the assistance of the Ombudsman with the subject matter of my request for reconsideration, and explicitly told the Ombudsman so. The Ombudsman never sought, or received, any information about my reconsideration request from me, except for my reminder that it was separate from my requests to the Ombudsman. Moreover, ICANN’s Bylaws specifically exclude from the jurisdiction of the Ombudsman “matters which have … otherwise become the subject of either the Reconsideration or Independent Review Policies.”

My interactions with the Ombudsman were disappointing, to say the least. The Ombudsman appeared to identify strongly with ICANN’s staff and organizational interests, rather than displaying independence or impartiality. At one point, for example, the Ombudsman sent me a copy — apparently inadvertently — of a message to ICANN’s General Counsel John Jeffrey suggesting that they “coordinate” their replies to my requests. The Ombudsman appeared to share the attitudes toward me manifested by other ICANN staff, and alluded to by Prof. Froomkin in his remarks this week to the ICANN public forum, as quoted above.

The Ombudsman appeared unable to separate their personal opinion of the substantive issues I originally tried to investigate in my reporting from the procedural issues raised in my request for the Ombudsman’s assistance, and in both my separate requests for reconsideration and independent review on different issues. And the Ombudsman appeared unable to understand the very concept of a complaint about due process or a dispute over principles rather than money, and kept trying (in between personal innuendos about my professional integrity and motives) to fit my request into a conceptual model of rival (financial?) “interests” which could be resolved through settlement negotiations.

Like the rest of ICANN’s officers and staff, the Ombudsman acted throughout the process as though they thought that those whom they have prejudged to be wrong deserve no justice.

Two: Having decided (which they would have been entitled to do, at least if they followed proper procedures, which they didn’t), that my request for reconsideration was “frivolous”, ICANN further decided that it would not be “appropriate” to inform me of that decision or the basis for it, make that decision public, or include it in their report(s).

(It remains unclear whether there was no report to the Board by the Reconsideration Committee for 2005, or such a report was impermissibly made in secret, and remains secret.)

But the provisions of the Bylaws that ICANN shall operate openly and transparently, and specifically that All Reconsideration Requests shall be posted on the Website , that The Reconsideration Committee shall … announce, within thirty days, its intention to either decline to consider or proceed to consider a Reconsideration Request … The announcement shall be posted on the Website , that The Reconsideration Committee announcement of a decision not to hear a Reconsideration Request must contain an explanation of the reasons for its decision , that “The final recommendation” of the Committee on each request shall be posted on the Website, that The final decision of the Board shall be made public , and that The Reconsideration Committee shall submit a report to the Board on an annual basis containing the number of requests received and the number denied, contain no exceptions for those requests where the grounds for the Committee’s decision was a determination of “frivolity”.

All ICANN had to do, if it had properly (openly and transparently) reached such a decision, was post it on the Web site with the request within 30 days of receiving the request, and include it in the counts in its report, “We received 1 request; it is posted at such-and-such a URL; and we denied it as frivolous”. The failure to do so was, and is, a clear violation of ICANN’s Bylaws.

The requirements for an accounting of all reconsideration requests and decisions, without exception, were, presumably, adopted for good reason. How else could we know if the Reconsideration Committee is exercising a secret “pocket veto” of certain requests?

The revelation of the secret and unreported rejection of my request inevitably raises the question for ICANN and outside observers: How many other unposted requests have similarly and secretly been rejected on grounds of a determination of frivolity? That’s a question the Bylaws specifically require the Reconsideration Committee to answer, in a public report, every year. And it’s required to post “all” requests, even those it deems frivolous, as a check on potential overuse of the power to reject requests they deem frivolous.

If ICANN’s Reconsideration Committee thinks it would be “appropriate” to operate in a different manner than is required by ICANN’s current bylaws, the appropriate action would be to propose a change in the Bylaws — while complying with the current rules in the meantime.

There could scarcely be a clearer demonstration that ICANN believes that there are no real rules, and that it can do whatever the Board and staff think are appropriate, Bylaws be damned.

[Addendum, 12 December 2006: Less than 24 hours after I posted this article here in my blog, ICANN posted a version of my request for reconsideration as Request 05-2, but with four peculiar alterations from my actual original request — two of them seriously misleading. (The ICANN Web page with my mangled request says it was last modified 8 December 2006, but there was no link to it from anywhere until a link appeared on the main Reconsideration Committee Web page late yesterday or early this morning.) First, the date of the request is stated on the ICANN Web site, both in the headline and the URL, as having been 16 May 2006, when in fact it was a year earlier, 16 May 2005. Second, ICANN removed from my request the contact information which I had provided in my actual request. This makes it appear from the ICANN Web site as though my original request was procedurally deficient, and may have given ICANN no way to respond, both of which are incorrect. Deleting my contact information from the posted request also makes it more difficult for visitors to the Web site to contact me for my side of the story. Third, a sizeable section of my request, including the actions I request be taken, was inexplicably excised (probably through mere negligence) from the copy posted by ICANN. Fourth, the copy of my request on the ICANN Web site includes additional content — in the nature of this addendum — that was included with it on the same page of my blog, thus making clear that ICANN copied it from my blog rather than from the e-mail message to “” by which it was originally submitted. That, in turn, suggests that ICANN had not kept any copy of my request, i.e. that they had expunged it completely from their records rather than recording it as rejected. Such actions would make it impossible for any observer or auditor even to determine that it had existed. I particularly call this misbehavior, and the attempt to destroy the record of the Reconsideration Committee’s actions and to frustrate or mislead future auditors or observers, to the attention of whomever might eventually be called upon to conduct an audit or review of the Committee’s activities. As of now, ICANN still hasn’t posted the recommendation or action of the Reconsideration Committee on my request, the record of action (if there was any action) by the full Board of Directors on my request, or any report on any of its actions for 2005, in violation of its Bylaws.]

[Further addendum, 12 December 2006: Within a few hours after I posted the above addendum, ICANN modified its original version and posted a new and more accurate version of my request for reconsideration, and posted a response to my request for reconsideration. There’s still no word on the required annual report of the Reconsideration Committee for 2005.]

[Follow-up, 13 December 2006: Analysis of the substance of ICANN’s response to my request for reconsideration.]

Link | Posted by Edward on Sunday, 10 December 2006, 15:20 ( 3:20 PM)
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