Wednesday, 13 December 2006

More skeletons in ICANN's closet

Every time we pry open another of ICANN’s doors, we find another skeleton in their closet — and more evidence of why ICANN is so desperate to avoid openness, transparency, or accountability.

Yesterday, 18 months after the fact, ICANN finally posted its official response to my request for reconsideration of 16 May 2005.

As I’ve pointed out, the delay in posting my request, posting the ICANN Reconsideration Committee’s decision, and posting the reasons for that decision, as well as the continuing failure to post the Committee’s required annual report for 2005, violate numerous specific posting and reporting requirements in ICANN’s Bylaws.

But there are also major substantive defects, clearly in violation of ICANN’s Bylaws, in the basis the Reconsideration Committee has now given for its previously-secret rejection of my request.

The ICANN Reconsideration Commitee based its decision on the (secret) opinion and determination of ICANN’s Ombudsman:

The Ombudsman further instructed both Mr. Hasbrouck and the Reconsideration Committee that, in the Ombudsman’s opinion, Mr. Hasbrouck’s application for independent review that had not yet been filed, but which was being distributed and was basically on the same grounds, was repetitive, trivial, vexatious, frivolous, non-substantive, otherwise abusive, or not made in good faith.

The Ombudsman thus determined that Mr. Hasbrouck’s interactions and conduct indicated that he was a querulous complainant with no desire to reach resolution. Such determination provided a basis for the Reconsideration Committee to reject Mr. Hasbrouck’s Request for Reconsideration.

Leaving aside, for the time being, the merits of the Ombudsman’s ad hominem opinions, Article IV, Section 2.15 of ICANN’s Bylaws limits the permissible basis for a decision of the Reconsideration Committee as follows:

The Reconsideration Committee shall act on a Reconsideration Request on the basis of the public written record.

No opinion or determination of the Ombudsman was (or is yet) a part of the public record. So the action of ICANN’s Reconsideration Committee on my request, and its stated basis for that action, are in direct and unambiguous violation of this provision of ICANN Bylaws.

No competent member of the Committee or of ICANN’s Board of Directors, and no competent counsel, staff, or advisor, could possibly have read that provision of the Bylaws and believed that the action ICANN has now disclosed, and the basis for it, were consistent with the Bylaws.

Either ICANN’s Reconsideration Committee and counsel are grossly incompetent, they are grossly negligent, they are lying, or (as I suspect is most likely) they simply don’t care about the Bylaws or any other rules.

“L’état, c’est moi, and the rules are whatever I say”, they seem to think. Compliance with ICANN’s own published and legally binding procedural rules is not part of ICANN’s corporate culture, and never has been.

ICANN’s Ombudsman, of course, should also have known that the Reconsideration Committee was forbidden to use anything not part of the public written record as the basis for its decision.

Is the Ombudsman’s secret sua sponte intervention in the Reconsideration Committee’s consideration of my request a sign of the Ombudsman’s incompetence? His personal animus towards me? Or simply his lack of concern for the Bylaws? Was the Ombudsman’s communication to the Reconsideration Committee of his opinions and determination — which that Committee was forbidden to use as the basis for its decision — an attempt improperly to influence the Committee? Or was it a clumsy attempt at collusion with the Committee in the improper rejection of my request, by providing the Committee with an excuse — albeit one the Committee was forbidden by the Bylaws to consider — for its decision?

The Ombudsman’s recommendation with respect to my reconsideration or independent review requests is not mentioned in the Ombudsman’s annual reports for fiscal year 2005 or fiscal year 2006 , although those reports mention other recommendations by the Ombudsman.

Since the Reconsideration Committee’s decision-making and communication with the Ombudsman was conducted entirely in secret, it’s hard to know what the real explanations are for their actions. That’s why openness and transparency are necessary, although not sufficient, conditions for accountability. And that’s exactly why the clause was included in the Bylaws requiring the Reconsideration Committee to base its decisions solely on the public written record.

Had the Reconsideration Committee as a constituent body of ICANN operated “to the maximum extent feasible in an open and transparent manner” including holding its meetings openly and with public notice, as required by the Bylaws, and had the decision and the basis for it been disclosed at the time they were made, (1) it would have been possible for me and other observers to detect and point out the violation of the Bylaws a year and a half earlier than now, and (2) I would have been able to seek independent review (if ICANN had duly designated an independent review provider and put in place duly-approved procedures for independent review, which it hasn’t ) of whether the decision of the Reconsideration Committee was made in accordance with ICANN’s Bylaws.

But the violation of the Bylaws isn’t the only thing wrong with the Reconsideration Committee’s reliance on the Ombudsman’s opinion.

ICANN’s Ombudsman Framework requires that:

All matters brought before the Ombudsman shall be treated as confidential. The Ombudsman shall only make enquiries or advise staff and Board members at ICANN of the existence and identity of a complainant in order to further the resolution of the complaint. ICANN staff and Board members are to hold the existence of a complaint and the identity of a complainant as confidential, except to further the resolution of a complaint. In general terms, due to the very nature of the work of the Office of the Ombudsman, the Ombudsman will resist testifying in any process which would reveal informal, confidential information given to the Ombudsman during the course of an investigation.

So it’s at the sole discretion of the maker of a request for the Ombudsman’s assistance, not the Ombudsman, whether or not to disclose any communications between such a complainant and the Ombudsman. The Ombudsman has never never sought nor received my permission to disclose any of my communcations, and I have not (yet) decided to place my correspondence to and from the Ombudsman in the public record. That being so, it would have been a violation of the Ombudsman’s own public commitments for him to disclose any of my communications to the Reconsideration Committee — particularly since the Reconsideration Committee was not engaged in consideration of any matter with respect to which I had made a complaint to the Ombudsman.

Since the Ombudsman wouldn’t have been permitted to provide the Reconsideration Committee with any (allegedly) supporting evidence for the Ombudsman’s opinion as to my requests, and since the Reconsideration Committee sought no additional information from me (as they would have been permitted to do), the Reconsideration Committee must have accepted the entirely unsupported and conclusionary “determination” of the Ombudsman as conclusive, unrebuttable proof that my request should be dismissed.

In other words, the “determination” of the Ombudsman was taken by the Reconsideration Committee to constitute a binding veto of the committee’s ability even to consider my request.

Is this what was intended by those who created the office of ICANN Ombudsman?

Is it now necessary to advise anyone who thinks that they might ever wish to seek reconsideration or independent review, on any question that might ever come before ICANN, that if they have ever sought the assistance of ICANN’s Ombudsman — even on a different issue — the Ombudsman will forever after have the unreviewable authority to block any formal reconsideration or independent review process that might otherwise be available to them?

Both the Ombudsman and the Reconsideration Committee appear unable to distinguish between the separate matters on which (1) I requested the assistance of the Ombudsman, and later request independent review, and (2) I requested reconsideration. Since I’m an investigative journalist, it’s natural that both of these arose under the openness and transparency clause of ICANN’s Bylaws. Journalists, especially investigative journalists, are always among the most frequent invokers of rules requiring public bodies to operate in the sunshine. A single journalist, covering a public body as their beat, may make dozens of formal requests for documents or complaints about public meetings. Does that mean that all FOIA requests from the same journalist for different documents, or all request for access to different meetings, can be munged together? Of course not.

My Ombudsman and independent review requests, and my reconsideration request, were made separately and concerned different documents, meetings, and records. Some confusion between the terms “reconsideration” and “independent review” was understandable, but when it arose — both on the Ombudsman’s part and in one case on mine — I immediately corrected and clarified the distinction.

And then there’s the inexplicable reference in the Reconsideration Committee statement to the Ombudsman’s opinion concerning, “Mr. Hasbrouck’s application for independent review that had not yet been filed, but which was being distributed.”

Neither my request for independent review nor my request for reconsideration was “being distributed” by me — or, so far as I know, by anyone — at any time before they were filed. They were composed and sent by e-mail within minutes or hours from the same computer, which I continue to use and which so far as I know has never been compromised. Like most writers, I sometimes seek comments on drafts of my writings, but I am quite certain that I did not do so with either of these. I showed them and sent them to no one. To the best of my knowledge and belief, they were never “being distributed” at any time before being filed. This claim is both entirely untrue, and entirely unsupported. Since it was never mentioned to me by the Ombudsman, and this is the first I have learned of it, I have no idea on what, if anything (nothing, I suspect) it is based. (Nor do I know why anyone would make such a claim.)

So what does all this mean?

I have tried diligently and persistently, but thus far unsuccessfully, to hold ICANN to its purported commitment to openness and transparency.

In doing so, I have now determined, through exhaustive empirical testing, the complete bankruptcy of each of ICANN’s three supposed mechanisms for “accountability”:

  1. The Ombudsman not only failed to resolve the issues with which I sought his assistance, but intervened — successfully — to block my access to the reconsideration process on a different issue, even though he knew or reasonably should have known that it would be a violation of ICANN’s Bylaws for his opinions to be used as a basis for that action.

  2. The Reconsideration Committee based its decision on material outside the public record, in violation of the Bylaws; granted the Ombudsman secret veto power over its docket; and compounded those violations by keeping them secret for a year and a half.

  3. The independent review process has not even begun: After more than 18 months, ICANN has not posted my request (which it could do even before an IRP is designated), has not referred my request to an IRP, and has not duly designated the IRP or duly put in place procedures for independent review. ICANN now appears to be willing to allow some sort of review, but not in accordance with Bylaws, and only if I’m willing to let them make up the procedures as they go along, secretly and unilaterally, and let them off the hook for having failed to to put them in place before my request and in accordance with the specific decision-making and transparency requirements in their Bylaws.

I’ve exhausted all remedies that are supposed to be available within ICANN. (Yes, I’m exhausted myself by the process I’ve had to go through.) This leaves entities external to ICANN as the only possible source of accountability for ICANN:

  • The USA Department of Commerce (NTIA/DOC) and its Inspector General, who have the authority (and, under Federal laws governing the oversight of contracts with the government, the obligation) to enforce ICANN’s contractual commitments to the DOC to openness, transparency, and accountability, and to sanction ICANN or seek criminal sanctions against it for filing fraudulent reports with the DOC, falsely claiming to have in place procedures for independent review.

  • The California Secretary of State , who has the authority to sanction ICANN, appoint caretaker directors, or revoke ICANN’s corporate charter and dissolve the corporation for failure to operate in accordance with its bylaws and its charter from the State of California.

  • Internet users, who have the power through mass direct action to “route around” ICANN.

In the meantime, I’ll keep trying to get to the bottom of the story of ICANN’s role in creating travel-related top-level Internet domain names — with or without what ICANN so misleadingly keeps referring to as its “help”.

Link | Posted by Edward on Wednesday, 13 December 2006, 08:21 ( 8:21 AM)
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