IRP designation and IRP procedures

["Edward Hasbrouck" <edward@xxxxxxxxxxxxx>]

Members of the Board of Directors, Chairperson Cerf, and Corporate 
Secretary Jeffrey:

Since there is still no designated e-mail address for ICANN's Board of 
Directors as a whole, I request that Secretary Jeffrey forward this 
message to each member of the Board of Directors.

I am writing to you in light of (1) your continuing failure to take any 
action on my outstanding requests for independent review and stay pending 
independent review, (2) your continuing failure to take any publicly 
visible step toward a policy development process to designate an 
independent review provider or put in place procedures for independent 
review of ICANN decisions, (3) your continuing failure to respond to my 
requests for information concerning the independent review process, 
including the specific questions concerning those procedures in my 
messages to you of 5 February 2006 and 7 February 2006, and (4) Dr. Cerf's 
remarks regarding my request during your public forum in Wellington on 30 
March 2006.

I'm not sure why you won't respond to my requests, but will respond to the 
public _about_ my requests.  I believe that, if ICANN is to bring itself 
into compliance with its Bylaws and its contractual commitments to the USA 
Department of Commerce, you will eventually need to schedule a meeting 
where we can discuss this directly. I urge you to do so as soon as 
possible, rather than to continue your avoidance, obfuscation, and delay.

In his comments to the public forum, Dr. Cerf began by grossly 
mischaracterizing my request as, "A LETTER FROM EDWARD HASBROUCK, WHICH 
REPEATS MOST OF HIS CONCERNS ABOUT DOT TRAVEL AND THE INDEPENDENT REVIEW 
PROCESS."

As you know, my message to the public forum did not, in fact, repeat *any* 
of my substantive concerns about .travel.  My message did not even mention 
them.  As you know, my message was concerned solely with my requests for 
independent review and stay pending independent review. If it repeated 
some of my questions, that was only because I had received no response 
whatsoever from ICANN to my previous e-mail message posing those questions 
on 7 February 2006. And as you know, my request for independent review is 
concerned solely with the (lack of) openness and transparency in the 
procedures followed by ICANN's in making its decision on .travel.  It is 
not, and could not be, based on anything related to my substantive 
concerns about .travel.

It is difficult to interpret this public mischaracterization of my message 
as anything other than a deliberate, bad-faith attempt to mislead the 
audience in Wellington, and watching the Webcast of the public forum, as 
to what issues I was raising.

Dr. Cerf continued:

"MR. HASBROUCK CONTINUES TO BE CONFUSED , I THINK, OR AT LEAST APPEARS NOT 
TO BELIEVE THAT THE ICANN BOARD HAS, INDEED, DESIGNATED THE INTERNATIONAL 
CENTER FOR DISPUTE RESOLUTION AS ITS INDEPENDENT REVIEW PROCESS OPERATOR.  

"ON 19 APRIL 2004, UNDER BOARD RESOLUTION 4.33, THE BOARD DID IN FACT NAME 
[ICDR] ITS IRP OPERATOR."

I'm not "confused". Neither, I think, are you.  As you know, and as I 
pointed out to you in my message of 11 December 2005 analyzing ICANN 
Resolution 04-33, that resolution does not name ICDR as ICANN's IRP 
operator.  That resolution merely authorizes (but does not require) a 
contract with ICDR to provide services (unspecified) in accordance with a 
(secret) proposal.

http://hasbrouck.org/blog/archives/000964.html#ICDR

The resolution does not mandate such a contract.  You have declined to 
state, and it is impossible for me to know, whether any such contract was 
in fact concluded, or if so, what it says. Nothing in the resolution 
indicates that the contract, if there is one, would be exclusive or 
constitute the designation of ICDR as the (singular) IRP provider. Indeed, 
the language of Resolution 04-34, "adopted" (I do not concede that the 
closed teleconference on 4 April 2004, without the required notice or 
transparency, constituted a valid meeting) at the same time, strongly 
suggests that any contract entered into pursuant to Resolution 04-33 might 
not have been exclusive. Finally, there is no mention in Resolution 04-33 
of IRP procedures, which ICANN Bylaws require to be approved by the ICANN 
Board and posted on the ICANN Web site.

"SO IF MR. HASBROUCK IS CONCERNED THAT WE HAVEN'T OFFICIALLY DONE THAT, 
THAT'S THE CITATION THAT SHOULD PUT THAT UNCERTAINTY TO REST."

Since you were fully aware of my questions concerning Resolution 04-33, 
and were fully aware that ICANN has neither acknowledged nor made any 
attempt to respond to them, you had no basis for any good-faith belief 
that mere citation of that resolution would "put to rest" those concerns.  
Your claim to that effect to the Wellington public forum appears to have 
been a further bad-faith attempt to deceive people at the meeting, and the 
public, concerning the degree of your (un)willingness to provide any 
justification for your continued inaction on my requests.

"FINALLY, WHAT I'D LIKE TO STRONGLY RECOMMEND IN RESPONSE TO MR. 
HASBROUCK'S E-MAIL IS THAT HE DEAL DIRECTLY WITH THE INTERNATIONAL CENTER 
FOR DISPUTE RESOLUTION.

"THE METHOD FOR INITIATING AN INDEPENDENT REVIEW IS, IN FACT, TO DEAL WITH 
-- DIRECTLY WITH THE OPERATOR OF THE INDEPENDENT REVIEW PROCESS."

In fact, as you know, ICANN's Bylaws require that ICANN must refer 
requests for independent review to the IRP provider. The requester herself 
or himself could not make the request directly to the IRP provider (even 
if ICANN validly had designated an IRP provider and approved procedures 
for independent review, which it has not).

MY UNDERSTANDING IS THAT GENERAL COUNSEL HAS SUPPLIED TO MR. HASBROUCK 
POINTERS TO THE [ICDR]. BUT IF FOR SOME REASON THOSE AREN'T AVAILABLE TO 
HIM OR THEY'VE BEEN LOST, I'M SURE THAT GENERAL COUNSEL CAN SUPPLY THAT 
AGAIN....

Mr. Jeffrey has supplied no response to my specific questions concerning 
ICDR in my e-mail message to him and you of 11 December 2005, my questions 
concerning IRP procedures in my e-mail to him and you of 5 February 2006, 
or any of my previous requests for any agreements(s) between ICANN and any 
provider(s) of IRP services:

In may be that Mr. Jeffrey "can" supply more information concerning any 
agreement(s) that may exist between ICANN and ICDR, or ICANN's contacts at 
ICDR. But Mr. Jeffrey has not, in fact, been willing to supply me with any 
such information. If Mr. Jeffrey is in fact able to do so -- as you now 
claim -- and has refused to do so by choice rather than by inability, that 
only exacerbates his culpability for this deliberate nonfeasance as an 
officer and staff person of ICANN.

If Mr. Jeffrey is now willing to supply this information, my unanswered 
questions concerning the IRP provider and the procedures for independent 
review are at:

http://hasbrouck.org/blog/archives/001007.html#procedures

There is, of course, a specific manner in which ICANN is required to 
"supply" the public with information concerning the procedures for 
independent review: Once those procedures have been approved by the ICANN 
Board of Directors under Article 4, Section 3.5 of your Bylaws, you are 
required by Article IV, Section 3.13 to post them on the ICANN Web site.  
You have not done so.  

As you know, the only "pointer" to the ICDR that Mr. Jeffrey has supplied 
to me is the URL of the ICDR home page.

There is no mention whatsoever at that URL of ICANN or of procedures for 
independent review of decisions by ICANN. I have searched the ICDR Web 
site diligently, and I have found no mention on that Web site of 
independent review of ICANN decisions, the designation of ICDR to provide 
such review, any agreement(s) between ICDR and ICANN, or any procedures 
identified as applicable to independent review of ICANN decisions.

There are several sets of rules and procedures for different types of 
arbitration listed on the ICDR Web site.  After careful review of each of 
them, it does not appear to me that any of them could, without substantial 
modification, satisfy the requirements of ICANN's Bylaws for independent 
review.

Among other defects, the various ICDR rules and procedures all appear to 
be designed for arbitration of disputes between parties to contracts.  But 
ICANN's Bylaws provide that "Any person materially affected by a decision 
or action by the Board that he or she asserts is inconsistent with the 
Articles of Incorporation or Bylaws may submit a request for independent 
review of that decision or action."  Independent review is not limited to 
parties to contracts with ICANN, and a set of rules and procedures 
applicable only to disputes between parties to contracts could not satisfy 
the requirements of ICANN's Bylaws. 

Although I was not required to do so, I have, as Dr. Cerf "recommended", 
contacted the ICDR for their reaction to what I have been told by Dr. Cerf 
and Mr. Jeffrey. On 14 April 2006, I called the phone number on the ICDR 
home page, +1-212-484-4181.

The person who answered the phone declined to give their name, but said 
that, "No, we have no contract with ICANN".  They also said that, "When 
you submit a request to us, you have to also submit a contract" providing 
for arbitration by ICDR -- which, of course, I would be unable to do, 
since I have no contract with ICANN or ICDR, and ICANN has refused to 
provide me with its contract(s), if any, with ICDR or with any other 
provider(s) of IRP services.  "Without a contract, we cannot initiate the 
process", the person at ICDR said.  They said that ICDR has two different 
sets of procedures for different types of arbitration, and they couldn't 
tell which, if either, might be applicable to independent review of 
decisions by ICANN.

I told them that I had been referred to ICDR by ICANN, and that ICANN had 
told me ICANN has designated ICDR to provide independent review of ICANN 
decisions.  They told me that they knew nothing about this, and suggested 
that I contact ICANN.

When I asked ICDR if they could suggest any other possible source of 
information as to how to initiate a request for ICDR to arrange an 
independent review of an ICANN decision, they referred me to their 
"corporate office" at 1-800-778-7879.  At that number, I was connected to 
the USA national customer service center of the American Arbitration 
Association (AAA).  The AAA seemed to be trying sincerely to be helpful, 
but equally sincerely puzzled.  They referred me back to ICDR, suggesting 
that I ask for Mr. Thomas Ventrone, Vice President of ICDR.

So I called ICDR again and asked for Mr. Ventrone.  When I did so, I was 
directed instead to Mr. Tom Simotas, Case Intake Supervisor for ICDR.  He 
assured me that he was the person responsible for determining how to 
handle requests to ICDR for arbitration, and he seemed to be trying to 
help.  But he was puzzled:

Does ICDR have any procedures applicable to independent review of 
decisions by ICANN?  "Not at the moment."

Has ICDR been designated to provide independent review of decisions by 
ICANN? "Not that I know of."

Does ICDR have any agreement with ICANN? "Not that I'm familiar with. I've 
never heard of ICANN."

Does ICDR have any procedures that would permit someone to request 
arbitration without being a party to a contract?  "The text of the 
arbitration clause of the contract must be submitted with the request for 
arbitration."

If you were to receive a request for independent review of a decision by 
ICANN, what would you do with it.  "Nothing.  We couldn't do anything with 
it."

Can you suggest any way that I could find out how to initiate a request 
for independent review of a decision by ICANN?  "You'd have to ask ICANN 
about that."

Do you know why ICANN referred me to you?  "I don't know."

In only one respect was the response I received from ICDR consistent with 
the claims made to me by ICANN: Mr. Jeffrey had also said, in his letter 
to me of 17 January 2006, that a request under ICDR procedures (he didn't 
specify which of the several sets of ICDR procedures) must include "a 
reference to the arbitration clause or agreement that is invoked."

In my e-mail of 17 May 2005, I requested that ICANN "provid[e] me with a 
complete copy ICANN's policies and procedures (if any) for independent 
review, and with a copy of any ICANN contract(s) with independent review 
provider(s)."  To date, you have not done so -- in spite of your own 
claim, confirmed by ICDR, that it would be necessary to provide a copy of 
such an agreement with ICDR in order for ICDR to be able to act on any 
request.

Interpreted in the most favorable light, your statements amount to a claim 
that in order to initiate a request for independent review, I must first 
provide a copy of a document which is under ICANN's exclusive knowledge 
and control, and which you have refused to provide me, in spite of 
repeated explicit requests.

If you believe in good faith that, as you have claimed, ICANN has 
designated the ICDR as its exclusive IRP provider, and that (as ICDR has 
confirmed), any request under ICDR's standard procedures would require the 
maker of the request to provide a copy of the arbitration agreement before 
ICDR could act, your refusal to provide me with that document completely 
precludes any possibility for me to pursue a request for independent 
review according to the procedures you have recommended.

As such, it is an inexcusable act of wilful nonfeasance in your capacity 
as officers, staff, and directors of ICANN, which completely frustrates 
any possibility of independent review.

You have no authority under ICANN's Bylaws to pick and choose who will be 
allowed to initiate a request for independent review, by picking and 
choosing to whom you will disclose the agreement which must be provided in 
order to initiate such a request.

I again demand that you provide me, forthwith, with a copy of any 
agreement(s) or purported agreement(s) between ICANN and any provider(s) 
of independent review services, and with a full explanation of why you did 
not provide these documents in response to any of my previous requests.

And I demand of each member of the Board of Directors that you either 
compel the officers and staff of the corporation to comply with the 
Bylaws, or replace them with officers and staff who will do so.

The ICANN Board of Directors "meeting" of 19 April 2004 was conducted in 
secret by closed teleconference (in violation of ICANN's Bylaws), and to 
date no minutes of that "meeting" have been published on ICANN's Web site 
(in violation of your Bylaws). The proposal by ICDR referred to in 
Resolution 04-33 was and remains secret (in violation of your Bylaws), as 
is the contract (if any) entered into pursuant to that resolution. Even 
the fact of whether any such contract was entered into remains secret.

As a result of this secrecy, it is impossible to know what the Board of 
Directors thought you were doing when you "approved" Resolution 04-33, or 
what, if any, advice you received from staff and counsel. But I believe 
that you are intelligent people, and I presume that by now you have 
realized that in acting on that resolution, you did not comply with the 
procedural requirements of ICANN's Bylaws for such a policy decision.

Had you published the proposals, and the reasons for them, for the 
requisite period of public comment, or conducted the bottom-up consensus-
based policy development process you claim to follow (but rarely follow in 
practice), members of the public undoubtedly would have pointed out the 
discrepancies between any of ICDR's sets of standard procedures and the 
requirements of ICANN's Bylaws.

Your "adoption" of Resolution 04-33, in spite of its substantive and 
procedural defects, is symptomatic of chronic flaws in ICANN's decision-
making process:

* lack of concern for noncompliance with ICANN's Bylaws or ICANN's 
contracts with the USA government,

* excessive reliance by members of the Board of Directors on 
recommendations of staff and counsel,

* failure of the Board to exercise its own due diligence,

* policy-making through secret contract negotiations rather than through 
public meetings or deliberations, 

* failure to make proposals public before they are adopted, and

* lack of public notice or opportunities for public comment.

I hope that this will be a lesson to you for policy making in other areas.

It's time for you to stop ignoring me, stop stalling me, stop trying to 
put me off or send me down dead ends.  Admit that you made a mistake, and 
that you need to schedule a public meeting, with proper notice, as soon as 
possible, to consider how to begin the process of designating an IRP 
provider, developing procedures for independent review, dealing with my 
requests for independent review and stay pending independent review, and 
dealing with the other outstanding requests for independent review.

I appeal to each of you individually as members of ICANN's Board of 
Directors, officers, and staff to take prompt action to bring the 
corporation, its officers, and its staff into compliance with its Bylaws 
and its contractual commitments.

And I again call to the attention of the Secretary of State of California, 
and the USA Department of Commerce, that ICANN does not, in fact, have in 
place oversight procedures for independent review of its decisions, as 
required by its Bylaws and its Memorandum of Understanding (MOU) with the 
Department of Commerce.  Accordingly, I request that they initiate 
appropriate proceedings to bring ICANN into compliance with its 
obligations, to revoke its corporate charter from the state of California, 
and/or to terminate the MOU for breach of contract by ICANN

Sincerely,

Edward Hasbrouck


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