sTLD conditions and oversight

["Edward Hasbrouck" <edward@xxxxxxxxxxxxx>]

In ALAC's 18 October 2005 announcement, you say:

http://alac.icann.org/announcements/announcement-18oct05.htm

"The ALAC would like specific input from you on questions posted by ICANN 
(see initial questions at <http://www.icann.org/tlds/new-gTLD-
questions.pdf>)."

One of those "New TLD Questions" posted by ICANN is:

"4. What conditions should ICANN impose on new TLD operators?.... 
d.....Can and should STLD use be governed by agreement?"

ICANN's bylaws require that "ICANN and its constituent bodies shall 
operate to the maximum extent feasible in an open and transparent manner".

ICANN can delegate only that authority which ICANN possesses. It is 
therefore an implicit condition of any delegation of authority by ICANN  
that it the delagted authority is subject to this requirement to "operate 
to the maximum extent feasible in an open and transparent manner".

But this condition has not been included explicitly in agreements between 
ICANN and sTLD sponsors, and sTLD sponsors have made decisions with even 
less openness and transparency than ICANN.  So I request that ALAC ask 
ICANN to make this condition explicit in sTLD sponsorship agreements, and 
to establish a mechanism for enforcing this condition.

sTLD sponsors have been, and I believe they should continue to be, subject 
to conditions that the sponsor (1) operate the sTLD in the interest of a 
specified community, and (2) provide specified mechanisms for 
participation by that community in sTLD decision making.

Those conditions have been widely violated by sTLS sponsors, but community 
members have had no means of redress for complaints of these violations.

ICANN has established procedures for disputes between registrants and 
registrars.  But ICANN has never established or specified any procedures 
for complaints, or for resolution of disputes, over whether sTLD sponsors 
have complied with the terms of their agreements with ICANN -- 
particularly the conditions requiring that the sponsor operate the sTLD in 
the interest of a specified community, and provide mechanisms for 
participation by that community in the making of decisions for the sTLD.

Since this is an issue of the right of at-large stakeholders in those 
communities to participate in decision-making that affects them and their 
interests, this should be an issue of particular concern for ALAC.

I request that ALAC raise with ICANN the need for a mechanism for 
resolution of complaints by community members against sTLD sponsors for 
noncompliance with the conditions of their sponsorship agreements with 
ICANN, specifically including compliants that an sTLD sponsor has not 
operated the sTLD in the interest of the delegated community, or has not 
provided mechanisms for community participation in sTLD decisions.

ICANN has not yet made *any* attempt to evaluate (1) whether sTLD sponsors 
have complied with ICANN's bylaws on transparency and openness (as they 
apply to delegations of decision-making authority), (2) whether sTLD 
sponsors have complied with the explicit conditions of their agreements 
requiring them to operate each sTLD for the benefit of  a specified 
community (and *not* just, or primarily, for the benefit of the sponsor or 
of those who control the sponsor), or (3) whether sTLD sponsors have 
complied with the explicit commitments in their agreements to provide 
means for community members to participate in sTLD decision making.

I discuss this essential missing piece of the evaluation that is supposed 
to be part of the current new TLD "proof of concept" at:

http://forum.icann.org/lists/gtld-strategy-draft/msg00002.html

I request that ALAC remind ICANN that this part of the evaluation of the 
new TLD's has not yet been carried out, and that ALAC insist that this 
part of the evaluation be carried out before  more new TLD's are created.

Finally, none of these or any other conditions are meaningful if there is 
no oversight.  As a journalist directly and materially affected by the 
lack of openness and transparency, I have requested that the lack of 
openness and transparency in ICANN's decision-making on ".travel" -- 
including the holding of closed meetings, the refusal to permit my 
participation in an advertised ICANN "press conference",  and the 
withholding form public disclosure of numerous meeting records and 
documents I had specifically requested and which it would have been 
feasible to release -- be referred to an Independent Review Panel (IRP) in 
accordance with Article 4, section 3 of ICANN's bylaws.  I have also 
requested a stay of ICANN's decision, pending independent review:

http://hasbrouck.org/blog/archives/000554.html

More than 6 months later, ICANN has taken no (publicly disclosed) action 
on my requests for independent review and stay, and has given me no notice 
of any meeting of ICANN or any subsidiary body to consider these requests.

I request that ALAC ask ICANN immediately to (1) stay its decision on 
".travel" pending independent review and (2) either refer my request to an 
IRP, or (if it lacks the policies required by its bylaws for doing so) 
commence a bottom-up consensus-based process to develop policies and 
procedures for referral of such requests to an IRP.

If these requests have not already been acted on by the time of drafting 
of the agenda for the Vancouver ICANN meeting, I request that ALAC ask 
that my requests for independent review, and stay pending independent 
review, be placed on the agenda for the Vancouver meeting, and that ALAC 
take them up with ICANN board and staff at the earliest opportunity.

I will be happy to meet with ALAC to discuss these issues.

Sincerely,

Edward Hasbrouck


----------------
Edward Hasbrouck
<edward@xxxxxxxxxxxxx>
<http://hasbrouck.org>
+1-415-824-0214

"The Practical Nomad: How to Travel Around the World"
(3rd edition, 2004)
"The Practical Nomad Guide to the Online Travel Marketplace"
<http://www.practicalnomad.com>