Saturday, 13 March 2010

ICANN's most recent answers to my questions

Last year, to test Internet governing body ICANN’s new “Documentary Information Disclosure Policy” (DIDP), I made renewed formal requests for any records of (1) ICANN decisions to designate an independent review provider or approve independent review policies or fees, and (2) appointment by ICANN of an Ombudsman.

As I pointed out in comments and a footnote when the DIDP was proposed, it fails to satisfy the requirement of ICANN’s Bylaws for the maximum extent feasible of transparency. ICANN published that policy without a formal policy development process, and I have requested that, if ICANN considers it to be a policy, it be referred to an independent review panel charged with determining whether it is consistent with ICANN’s Blylaws. That request has, of course, been entirely ignored. But it seemed worth a try, since ICANN wouldn’t answer my questions through any other channel.

I posted ICANN’s “answers” as part of a lengthy essay in the section of my Web site on ICANN and travel-related Internet domain names. But it’s recently come to my attention that ICANN hasn’t seen fit to post this extremely revealing correspondence itself. So I’m reposting it here, to clarify the state of play.

With regard to independent review, ICANN responded in April 2009 with (1) an explicit admission that ICANN has a secret side agreement
with ICDR, its claimed “independent” review provider (which agreement, according to ICDR’s rules, I would have to provide a copy of in order to initiate arbitration by ICDR), and an explicit categorical refusal to disclose that secret contract, and (2) an explicit admission that ICANN has not, in fact, conducted any policy development process for independent review since the independent review Bylaws were amended in 2002, and has no independent review policies:

ICANN/ICDR Agreement: … ICANN does not make public its individual vendor contracts. Further, individual contracts of this type are protected from disclosure under the balancing test outlined within the DIDP…. Allowing public disclosure will impede ICANN’s ability to negotiate and enter into contracts with persons and entities not wishing to make their business dealings open to the public, which will greatly harm the organization in running its business. Moreover, it is hard to identify what public interest would be served by the disclosure of the contract. This harm/benefit analysis is sufficient justification for nondisclosure under the DIDP. ICANN can, however, confirm the existence of an agreement with the International Centre for Dispute Resolution (“ICDR”) as the Board-designated Independent Review Panel Provider.

ICANN does not currently maintain any “policies” relating to the Independent Review process…To be clear, since 2002, ICANN has not undertaken any policy actions nor adopted any policies pursuant to Article III, Section 6 of ICANN’s Bylaws to govern the Independent Review Process or the designation of the Independent Review Panel Provider.

With regard to appointment of an Ombudsman, ICANN responded in May 2009 that, “Ombudsman was appointed on November 1, 2004, with the appointment consistent with ICANN’s Bylaw V.” Since that article of the Bylaws requires that an Ombudsman be appointed by the Board of Directors, and since there was no notice or minutes of a Board meeting on that date, such an appointment could not possibly have been consistent with those Bylaws. ICANN’s Bylaws also provide for any initial appointment of an Ombudsman to be for 2 years, subject to renewal by the Board. ICANN didn’t respond at all to my request for information about renewal of an Ombudsman’s appointment. But a 2-year appointment made in 2004 would, of course, have expired in 2006 unless it had been renewed.

At the end of the day, the remaining question is the one I asked ICANN’s Board of Directors during their meeting earlier this week: When is ICANN going to act on the pending requests for independent review, and take the other actions that are needed to implement its Bylaws on transparency and accountability?

Link | Posted by Edward on Saturday, 13 March 2010, 08:39 ( 8:39 AM)

Have you noticed that Susan Crawford blocks referrals to her blog from this blog? For example, here's a link to her post about transparency:

Posted by: Shii, 15 May 2010, 23:40 (11:40 PM)
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