Thursday, 5 March 2009

Still trying to get answers from ICANN

ICANN is holding its quarterly meetings this week in Mexico City, including a public forum today for the worldwide community of Internet users to submit comments or questions to the people who act as the de facto privatized government of the Internet. (What, if anything, President Obama will do to change the U.S. government’s delegation of authority to ICANN, or to exercise oversight over ICANN, remains to be seen.)

Since I couldn’t afford to travel to Mexico for the meeting, I was limited to 30-word submissions to ICANN’s online “Question Box”, as follows:

  1. Please answer the 7 specific unanswered questions, previously submitted in writing in 2006, at:

    Please also tell us when, if ever, the Board will consider the pending requests for independent review.

  2. Please answer the 4 specific unanswered questions, previously submitted in writing, at:

    Please also tell us when, if ever, the Board will conduct a proper decision-making process to appoint an Ombudsman.

I got the following reply to both my submissions:

We have received your question to the Mexico City meeting - thank you very much.

We will make sure that as many questions as possible are asked in the room itself (and the answers captured by the meeting transcript). If we run out of time and your question isn’t asked, don’t worry - we will produce a response in the weeks following the meeting that should include both your question and a response to your question.

Thanks again for participating within ICANN’s processes.

Kieren McCarthy
General manager of public participation, ICANN

Not surprisingly, most of today’s public forum was taken up with lengthy statements from people in the room in Mexico City. That’s understandable: If I’d gone all that way to get my views heard, I’d want my time at the microphone too. They didn’t get to my questions, or to most of the rest of the contents of the online “Question Box”. The Board decision-making meeting is tomorrow, although it usually appears that most of the decisions have been made by ICANN’s staff and/or agreed to in advance by the Board, off the record, in some other forum.

In the run-up to the meeting, ICANN had posted a cryptic agenda item (they rarely bother to post the actual proposals in advance of their meetings, although they are supposed to) sugggesting that they were finally going to appoint an Ombudsman, as their Bylaws require.

I’ve been pointing out for several years that ICANN has never actually implemented most of the “accountability” mechanisms in its Bylaws. ICANN’s Bylaws are explicit that the Ombudsman must be appointed by the Board of Directors. Quite a reasonable requirement, since once appointed the Ombudsman can only be removed by a 3/4 vote of the Board. But ICANN’s Board has never publicly considered appointment of an Ombudsman. The person acting as Ombudsman claims to have been “confirmed” by a press release, on a day when there was no publicly-disclosed Board meeting. The Bylaws also provide for an initial term of 2 years for the Ombudsman, unless renewed by the Board. The “Ombudsman” claims to have been appointed in 2004, so even if he had been appointed his term would have expired in 2006. There’s no record that the Board has ever considered renewing his “appointment”.

I assume that negligent and/or incompetent staff failed to notice the precedural requirements of the Bylaws, and hired an “Ombudsman” without bothering to put it before the Board. Neither the Board nor the person hired noticed it either. (Which is indicative of the institutional culture in ICANN of complete lack of concern for procedural due process, as well as the unfitness of the current “Ombudsman” for the job, were his appointment ever to be properly placed before the Board for consideration.)

I’m sure that at least some members of ICANN’s staff and Board eventually realized what had happened, at least after I pointed it out. But rather than trying to fix things by starting over, or putting out a call for nominations preparatory to proposing an appointment to the Board, they have ignored me. There’s an ongoing inability on the part of ICANN as an institution, and its staff and Board in particular, to admit mistakes. The same thing happened with ICANN’s purported procedures for independent review, which I invoked but which ICANN had never actually implemented in accordance with its procedural rules for policy making.

When I saw “Approval Of Ombudsman” on the agenda for tomorrow’s Board meeting, I wrote an article for ICANNwatch which also drew some notice elsewhere in the blogosphere.

Not surprisingly, the pretender to the office of ICANN Ombudsman was upset by my pointing out, once again, that he has been drawing a salary for almost 5 years without ever having been properly appointed. He responded with an article in his blog reprinting some of the ad hominem attacks on me (and admissions of grossly improper actions by the “Ombudsman” and the Reconsideration Committee of the Board) that one of ICANN’s lawyers had made during another ICANN Board meeting in 2006.

When I tried to reply in the comments to his blog, he played moderation games with me, so my initial and and follow-up comments (re-posted at ICANNwatch) appeared and disappeared unpredictably from the ICANN Ombudsman Blog.

I’ve been waiting for years for answers to my questions about ICANN, and I’m still waiting. But I haven’t given up, I’m not going way, and I’m not going to let the ICANN parade pass by without holding up a sign that says, “The emperor has no clothes.”

Link | Posted by Edward on Thursday, 5 March 2009, 10:47 (10:47 AM)

I've been a long time reader of your blog, but never posted before. I wanted to let you know that I appreciate the work that you do including trying to hold ICANN accountable.

I also wanted to let you know that I posted a polite link to your post here on the Ombudsman Blog pointing out your unresolved questions. The post appeared for a few hours and then disappeared just like your original response.

I realize posting comments on blogs isn't the official way to address issues with ICANN, but it's certainly smells when even the "Ombudsman" is resorting to moderation games.

Posted by: Ben, 6 March 2009, 11:27 (11:27 AM)
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