Procedures for independent review

[Edward Hasbrouck <edward@xxxxxxxxxxxxx>]

Thank you for the e-mail message Mr. Jeffrey sent me during the ICANN 
Board of Directors meeting in Vancouver last Sunday, 4 December 2005, in 
which you agree that, "If you do intend to go forward with an IRP 
complaint, we will refer your complaint to an Independent Review Panel."

There is a link labelled, "Message from John Jeffrey to Edward Hasbrouck --
 ICANN -- 4 December 2005 -- .travel IRP Request" on the "Correspondence" 
page of ICANN's Web site, but that link does not retrieve any file.

Since you haven't posted your message to me on the ICANN Web site, I have 
posted it on my Web site at:

http://hasbrouck.org/blog/archives/000945.html

I regret that you chose to reply to me by e-mail, even though we were in 
the same room.  And I regret that ICANN's Board of Directors did not 
consider my request during their Vancouver meeting.  Since we were all in 
the same place (in my case, entirely at my own personal expense, including 
lost wages), I believe that a face-to-face meeting could have, and still 
could, greatly expedite your fulfillment of the commitment you have now 
made to refer my request to an independent review panel -- the first step 
towards which would be the development of ICANN procedures for independent 
review, and the appointment of an independent review provider (IRP).

Much of your message consists of a statement of the substantive objections 
which, apparently, you intend to make to the IRP if one is ever appointed.

While I appreciate your providing me with a preview of your arguments to 
the IRP, I ask that you not let your preparation of arguments for the 
eventual independent review distract you from, or delay you in, fulfilling 
your current and more time-critical obligations under ICANN's Bylaws and 
contracts to consider and act on my request for a stay pending independent 
review, to develop policies and procedures for independent review, to 
appoint an IRP, and to refer my outstanding request to that IRP. Once 
these more immediate tasks are complete, you will have an opportunity to 
prepare and present your arguments to the IRP.

You say that, "We disagree with your assessment that you have been 
'materially affected' by an action of the ICANN Board."  If you continue 
to believe this -- particularly after reviewing the itemization of some of 
the ways I have been "materially affected" by ICANN's failure to comply 
with its transparency Bylaw, which I provided to you, at your request, in 
my e-mail message of 17 May 2005 -- that is an argument you can make to 
the IRP.

Like my first request for independent review and stay on 8 April 2005, my 
e-mail message to you of 17 May 2005, reiterating my outstanding requests 
for independent review and stay and responding to your questions about my 
motives for my requests, was and is required to be posted on ICANN's Web 
site, as soon as you received it, in accordance with Article IV, Section 
3.13 of ICANN's Bylaws.  Neither of these petitions for independent review 
have yet been posted on ICANN's Web site, but I have posted them on my own 
Web site at:

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

http://hasbrouck.org/blog/archives/000585.html

Moving from the issues that will eventually be before the IRP, to those 
that are now before ICANN, you say that, "ICANN's agreement to have your 
concerns reviewed by an arbitrator will not bring a halt to ICANN's work 
or .TRAVEL's implementation. ICANN's Bylaws do provide that an Independent 
Review Panel may 'recommend that the Board stay any action,' but the 
Bylaws do not provide that any individual request for independent review 
by itself creates an automatic stay."

You mis-state the Bylaws. ICANN's Bylaws do not provide that the IRP "may" 
recommend a stay. Article IV, section 3.8  of the Bylaws provides that the 
IRP "shall have the authority to" recommend a stay.  ICANN has not 
respected that authority.

Each of the following constitutes an ongoing affirmative act by ICANN, 
each of which is in violation of ICANN's bylaws, to deprive any IRP which 
may eventually be appointed of any meaningful "authority" to make a 
meaningful recommendation concerning a stay pending independent review:

        (1) ICANN's continuing failure to fulfill its obligation under its 
Bylaws 
to refer my request to an independent review panel, more than 8 months 
after my request of 8 April 2005;

        (2) ICANN's continuing failure to "have in place a ... process" for 
independent review, almost 3 years after the adoption on 15 December 2002 
of amendments to the Bylaws requiring this;

        (3) ICANN's continuing failure to have appointed an IRP, also almost 3 
years after the requirement for this was added to the Bylaws; and

        (4) ICANN's continuing failure to consider at any meeting of ICANN or 
any 
constituent body thereof, or to act on, my request for a stay by ICANN 
pending the recommendation of the IRP concerning a stay.

Time is obviously of the essence with respect to a stay. Your continuing 
delay constitutes a continuing and impermissible de facto denial by ICANN 
of the IRP's authority to recommend a stay.

I reiterate my outstanding request that ICANN stay its decision on 
".travel" pending receipt of the recommendation of the IRP concerning a 
stay.  I reiterate my request that this be considered by ICANN's  Board of 
Directors as soon as possible, and I ask you in your capacity as Secretary 
to the Corporation and the Board to forward this request to each of the 
members of the Board -- particularly including those newly elected members 
who may not yet, since ICANN has not posted them on its Web site as it is 
required to have done, be aware of this request, or that it has not yet 
been considered by any ICANN body.  And I continue to request that ALAC 
ask the Board to consider and act on this request.

You request that I "acknowledge that ICANN's Bylaws provide that 'The 
party not prevailing shall ordinarily be responsible for bearing all costs 
of the IRP Provider.'"

While this may appear at first glance to be a reasonable request, it is 
both unauthorized and inappropriate.  Independent review of actions by 
ICANN is available only in cases where it is asserted that ICANN has taken 
a decision or action inconsistent with its Articles of Incorporation or 
Bylaws.  In many such cases, there is likely to be a difference of opinion 
between ICANN and the person requesting the independent review as to what 
ICANN's Bylaws say, and/or what they mean.  Requiring, as a precondition 
to ICANN's fulfillment of its obligation to refer the request to an IRP, 
that the requester satisfy ICANN that, in ICANN's opinion, the requester 
agrees with ICANN's interpretation of the content or meaning of the 
Bylaws, would clearly frustrate many legitimate requests for independent 
review.

However, to avoid anything which ICANN might be tempted to use as a 
pretext for further delay in referring my request to an IRP, I voluntarily 
acknowledge -- without prejudice to my right or the right of anyone else 
to make other requests for independent review without making such an 
acknowledgment -- that, according to ICANN's Web site, the ICANN Bylaws as 
they were in effect at the time I made my request for independent review 
on 8 April 2005, provided that, "The party not prevailing shall ordinarily 
be responsible for bearing all costs of the IRP Provider."

My request for independent review was made by e-mail to 
"argentina@xxxxxxxxx" (the address posted on the ICANN Web site for public 
submissions to the ICANN meeting then in progress in Argentina), ICANN's 
President and CEO, Chairman of the Board of Directors, Corporate 
Secretary, and all those members of the Board of Directors for whom I 
could find e-mail addresses from the ICANN Web site, while the Board of 
Directors meeting of 8 April 2005 was still in session.  Amendments to the 
Bylaws were adopted earlier during that same meeting.  So far as I can 
tell, those amendments were effective immediately.  So the version of 
ICANN's Bylaws applicable to these requests is that which came into effect 
8 April 2005, as represented by ICANN on its Web site at:

http://www.icann.org/general/archive-bylaws/bylaws-08apr05.htm

You say that, "we must be assured that you will be willing and able to 
post the appropriate payments (approximately US$3250 for the filing fees 
portion of the IRP costs) before commencement of any action, and that you 
will be prepared to pay all the costs of the IRP provider in the event 
that you do not prevail in this action."

While you speak of what you believe to be required "before commencement of 
any action", this action commenced 8 April 2005 with your receipt of my 
formal request for independent review.

While you use the imperative "must", there is no publicly disclosed 
resolution of ICANN's Board of Directors, nor any publicly disclosed 
decision of any ICANN body, that imposes any such preconditions to 
independent review in terms of "filing fees" or the disclosure of personal 
financial information.

Even assuming (which I do not concede) that any such preconditions could 
be imposed consistently with the Bylaws, any policies to impose such fees 
or financial conditions, require such disclosure of personal financial 
information by those making requests for independent review, put in place 
procedures for independent review, or appoint an IRP, would clearly be 
"policies that are being considered by the Board for adoption that 
substantially affect the operation of the Internet or third parties, 
including the imposition of any fees or charges", as defined in Article 
III, Section 6, of the Bylaws, and subject to the requirements of that 
Section.

Since the adoption of the present provisions of the Bylaws on independent 
review 15 December 2002, no such policies related to independent review 
have been proposed or adopted in accordance with the requirements of that 
Section of the Bylaws.

You ask me to "please provide us with your formal IRP request". I have  
copied it again at the end of this message.  But as you know, this request 
was first provided to you 8 April 2005.

You say that, "we will forward your request to the International Centre 
for Dispute Resolution which ICANN has designated to provide independent 
review services in accordance with the Bylaws."  But as I have noted 
above, ICANN has made no such designation, at least not through any 
publicly-disclosed decision or through the decision-making procedures 
required by the Bylaws.

The only mention I can find on the ICANN Web site of any "decision" 
related to the International Centre for Dispute Resolution (ICDR) is Board 
of Directors Resolution 04.33 of 19 April 2004, at:

http://www.icann.org/minutes/resolutions-19apr04.htm

This Resolution 04.33 neither puts in place procedures for independent 
review, nor appoints an IRP.  And it was not adopted in accordance with 
any of the requirements of Article 3, Section 6, of the Bylaws, that would 
have applied to it if it was considered to have constituted such a policy.

Procedures for independent review, and the appointment of an IRP, 
substantially affect anyone who might ever want to make a request for 
independent review, and are subject to Article 3, Section 6.

Neither (1) any proposal for Resolution 04.33, (2) the proposal from IDRP 
on which it was based, (3) any proposed contract between ICANN and IDRP, 
(4) any policies, fees, or charges they might have contained, nor (5) any 
statement of reasons why they were being proposed, was ever published on 
the ICANN Web site.

There was no 21-day notice of the proposal, no forum for public comment on 
the proposal, and no request for the opinion of the Government Advisory 
Committee, even though oversight policies and procedures clearly affect 
"public policy concerns".  (For example, the authority of governments, 
under their national laws, to delegate decision-making authority to ICANN 
or to participate in ICANN processes may depend on whether ICANN 
procedures satisfy the requirements of those national laws for 
administrative due process, public access, oversight, accountability, and 
so forth.)

Resolution 04.33 was "adopted" at a closed Board "meeting" by telephone, 
from which journalists, stakeholders, and any other would-be observers 
(except those, whose identities remain secret, whom ICANN may have chosen 
to permit to participate in or to audit the teleconference) were excluded. 
 More than a year and a half later, no minutes of this "meeting" have been 
made public (in violation of ICANN's bylaws), and no transcript or audio 
recording of this "meeting" has been made public.

Assuming (which I do not concede) that Resolution 04.33 was validly 
adopted -- even under thr rules applicable to a non-policy resolution that 
did not impose charges or fees -- that resolution merely authorized, but 
did not require, the "engagement" of the IDRP to provide unspecified 
services in accordance with a proposal by IDRP which has never been 
publicly disclosed.

It is impossible for me to determine whether any contract such as was 
authorized was ever entered into between ICANN and IDRP, or what the terms 
of that contract may be.  I reiterate my request for a complete copy of 
any and all ICANN policies and procedures for independent review (if any), 
as well as any contract(s) between ICANN and any provider(s) of 
independent review services.

I cannot decide, for example, whether to elect a one-member panel of 
arbitrators or a three-member panel until the procedures are in place, and 
I can determine the effect of that election on the potential cost of the 
IRP.  Similarly, I cannot decide whether to request a purely declaratory 
opinion, or to request the award of nominal or actual damages (for the 
reduced value of licenses in my copyrighted journalistic works resulting 
from ICANN's violations of its Bylaws on transparency) until the 
procedures for independent review are in place, and I can tell whether the 
potential costs of the IRP may be less if I request nominal or actual 
damages than if I request a non-monetary recommendation.

Resolution 04.34, adopted at the same time as Resolution 04.33, 
specifically authorizes ICANN staff to continue negotiating with other 
providers of independent review services, thus indicating that the 
contract authorized by Resolution 04.33, if it was ever entered into, 
could not have been an exclusive contract or have constituted the required 
"appointment" of an IRP.

More than a year and a half after the "adoption" of Resolution 04.33, no 
procedures for independent review have been posted on the ICANN Web site, 
as would have been required under Article IV, Section 3.13 as soon as they 
were available -- further confirming that ICANN did not consider itself to 
have in place such procedures, or to have appointed the IRP.

You may have "appointed" an IRP in your own mind, and you may be 
accustomed to imposing  your will as ICANN's law.  But that's not the 
decision-making process for policies, charges, or fees that is required by 
ICANN's Bylaws. I insist that you follow your own rules, and bring your 
actions as officers and Directors, and the actions of the Corporation, 
into compliance with its Bylaws and its contractual commitments to 
transparency and oversight.

You can't just make the procedures, charges, or fees up as you go along, 
or impose them unilaterally or retroactively.

ICANN did not, in fact, "have in place" any duly-adopted procedures for 
independent review at the time I made my request, and does not now. ICANN 
had not, and still has not, in fact, duly "appointed" an IRP.  And ICANN 
had not, and has not, posted such duly-adopted procedures for independent 
review, or "all petitions, claims, and declarations", on the ICANN Web 
site.

The next step for ICANN -- after consideration of and action on my request 
for a stay -- in referring my request to an IRP, as you are obligated by 
your Bylaws to do and as you have now agreed to do, is to begin a 
maximally open and transparent process of developing policies and 
procedures for independent review, and selecting and appointing an IRP, in 
accordance with the Bylaws.  I urge you to schedule and give notice of a 
meeting for the purpose of beginning this process as soon as possible.

"Additionally,", you say, "we are interested in whether you have engaged 
Tralliance directly regarding your grievances."  As I have explained 
repeatedly to you, and on my Web site, my grievance is with ICANN, and 
concerns ICANN's failure to act in accordance with ICANN's Bylaws.  The 
Tralliance division of TheGlobe.com/Voiceglo.com is not a party to this 
grievance.

I have explained this distinction repeatedly, including in my comments to 
the public forum before the Board of Directors in Vancouver on 4 December 
2005, in my e-mail message to you of 17 May 2005, and in my blog at:

http://hasbrouck.org/blog/archives/000557.html

So far as I can tell, if Tralliance/TheGlobe.com/Voiceglo.com have an 
"interest" in my request for independent review of ICANN's actions, it is 
an interest in having my request referred to an IRP as soon as possible, 
so that the uncertainty -- as to whether the IRP will recommend that 
ICANN's decision on ".travel" be upheld or be voided -- will be resolved 
as soon as possible. I have done my best to advance that mutual interest 
of myself and of Tralliance/TheGlobe.com/Voiceglo.com in prompt review.

I have done everything in my power to minimize any unavoidable side 
effects on Tralliance/TheGlobe.com/Voiceglo.com or anyone else who, like 
those corporations, is not a party to this request.  I gave advance notice 
of my intention to make this request if ICANN proceeded with this 
decision:

http://hasbrouck.org/blog/archives/000553.html

http://www.icann.org/correspondence/hasbrouck-to-icann-07apr05.htm

I made my request as promptly as humanly possible after ICANN's decision, 
while the meeting of ICANN's Board of Directors was still in session, so 
as to permit the referral of my request to an IRP (if procedures for doing 
so had been in place, which they weren't as a result of ICANN's prior and 
continuing inaction) during that same meeting.

I have been trying diligently to get ICANN to act on my request as 
promptly as possible, and to minimize the delay and the resultant 
uncertainly for Tralliance/TheGlobe.com/Voiceglo.com and anyone else with 
an interest in the decision that is subject to my request for independent 
review and stay.

On the other hand, both ICANN and Tralliance/TheGlobe.com/Voiceglo.com 
have taken deliberate unnecessary actions that have materially contributed 
to their own financial risk and liability in relation to my requests for 
independent review and stay.

ICANN's continuing failure to have in place procedures for independent 
review or to have appointed an IRP, and ICANN's continuing delay in acting 
on my requests, have greatly prolonged the uncertainty for 
Tralliance/TheGlobe.com/Voiceglo.com, and compounded ICANN's potential 
liability to Tralliance/TheGlobe.com/Voiceglo.com (and perhaps other 
parties) should the IRP find that ICANN's decision on ".travel" is void as 
not having been made in accordance with ICANN's Bylaws.

ICANN's continuing failure to post my requests for independent review on 
the ICANN Web site, or to mention them in any of their statements 
concerning the decision subject to my request for independent review, has 
deprived third parties of the notice to which they were entitled under 
ICANN's Bylaws that a request for independent review was pending, greatly 
increasing ICANN's potential liability if third parties have relied on 
ICANN's Web site in determining whether such a request had been made.

Tralliance/TheGlobe.com/Voiceglo.com has contributed to its potential 
liability by choosing not to disclose to its shareholders my pending 
request for independent review, and the uncertainty as to whether ICANN's 
decision on ".travel" will be upheld or voided as a result of the 
independent review.

In addition, Mr. Ron Andruff, CEO of the Tralliance division of 
TheGlobe.com/Voiceglo.com, told me at the ICANN meeting in Vancouver that 
his company has chosen not to make any contingency plans or preparations 
for the possibility that ICANN's decision on "travel" might be stayed or 
voided as a result of the independent review which I have requested.

Mr. Andruff told me that this was because, speaking of ICANN and 
independent review, "They're never going to allow that to happen."

I hope that your future actions -- unlike your actions to date -- will 
begin to demonstrate that Mr. Andruff's confidence in your unwillingness 
to do what you are legally required to do was misplaced.

Finally, as I noted to you in my e-mail message of 17 May 2005:

"ICANN may be obliged (as a result of its own prior inaction and failure 
to have in place the policies and procedures for independent review 
required by its Bylaws and promised in its contract with the USA 
Department of Commerce) to develop policies and procedures for independent 
review while my request and others are pending. For this reason, it is 
especially important for that policy development process to be conducted 
with the maximum extent feasible of openness and transparency. Otherwise, 
it will be impossible to tell whether the independent review policies and 
procedures may have been crafted to influence the outcome of the specific 
pending requests for independent review."

Accordingly, I remind you of my outstanding request that you advise me of 
the date, time, place, manner, and available means for attending, 
observing, or auditing any meeting of ICANN or any constituent body to 
consider my requests for independent review and stay pending independent 
review, or independent review policies, as soon as such a meeting is 
planned or scheduled.

I hope to hear from you, without further delay, regarding the scheduling 
of a meeting to consider my request for a stay by ICANN pending receipt of 
the recommendation of the IRP concerning a stay, and to begin the process 
of developing ICANN policies and procedures for independent review and the 
selection and appointment of an IRP to consider my request and the other 
outstanding request(s) for independent review of ICANN actions.

Please let me know as soon as possible if you are still confused or 
uncertain as to what actions by you I have been, and am, requesting.

Sincerely,

Edward Hasbrouck

------- Forwarded message follows -------

From:                   Edward Hasbrouck <edward@xxxxxxxxxxxxx>
To:                     argentina@xxxxxxxxx
Subject:                Request for independent review
Copies to:              [ICANN Board of Directors members], twomey@xxxxxxxxx, 
jeffrey@xxxxxxxxx
Date sent:              Fri, 08 Apr 2005 05:56:02 -0800

I request that this message be entered into the record of today's Board
meeting and posted on the ICANN Web site.

I again request, for the reasons stated in my comments to yesterday's
public forum, that today's resolution of the ICANN Board of Directors to
approve a ".travel" agreement be referred to an independent review panel
(IRP) in accordance with Article 4, section 3 of the Bylaws.

I again request that the Board, President, and staff stay any action on a
".travel" agreement until such time as the Board reviews and acts upon the
opinion of the IRP, and while this request for a recommendation from the
IRP for a stay is pending. If the Board does not stay its decision, that
will deprive the IRP of any meaningful "authority" (as the IRP is given
under the Bylaws) to make any meaningful recommendation for a stay.

I reserve the right to make additional written submissions to the IRP once
the policies and procedures for independent review have been determined.

And I again request notice, as far in advance and in as much detail as is
known, of the time, place, and manner of any meetings to be held by ICANN
or any of its constituent bodies, and for copies of any documents to be
considered by them, related to ".travel", to my requests, or to policies
for independent review of ICANN actions.

------- End of forwarded message -------