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Re: IRP

  • To: "Vint Cerf" <vint@xxxxxxxxxx>
  • Subject: Re: IRP
  • From: "Edward Hasbrouck" <edward@xxxxxxxxxxxxx>
  • Date: Tue, 07 Nov 2006 10:51:59 -0800

On 27 Oct 2006 at 23:21, "Vint Cerf" <Vint Cerf <vint@xxxxxxxxxx>> wrote:

> My understanding is that staff has provided to you the coordinates of the
> group that can undertake an independent review.

I'm not sure what you mean by "coordinates". The only information provided 
by ICANN's staff has been the URL of the home page of the "International 
Centre for Dispute Resolution" (ICDR), a claimed trademark of the American 
Arbitration Association (AAA):

http://www.adr.org/international

As you know, there is no information at this URL identified or 
identifiable as pertaining to independent review of decisions by ICANN.  
There are links from this URL to several different sets of procedures, 
none of which would satisfy the requirements of ICANN's Bylaws -- even if 
ICDR or AAA had been duly designated by ICANN, or if any of these 
procedures had been duly approved by ICANN, which they have not.  

As I reported to you and Mr. Jeffrey on 11 December 2005, I have searched 
diligently but unsuccessfully on both the ICANN.org and ADR.org Web sites 
for any evidence that would support a good-faith belief that ICANN has 
designated the ICDR as the sole provider of independent review panels, or 
has approved any independent review procedures, in accordance with the 
procedural requirements of ICANN's Bylaws for such policy decisions:

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

On 5 February 2006, Mr. Jeffrey promised me by e-mail that, "I ... will 
forward your IRP request on to ICDR.... I will send them all historical 
correspondence that ICANN has received from you to date. If you object to 
this please contact my offices before Tuesday, 7 February 2006 at 5PM PST.
If you do not object I will assume that you are requesting us to submit 
this to our IRP process....  I ... will simply forward on to ICDR, all 
writings that you have provided to ICANN."

http://hasbrouck.org/blog/archives/001008.html

I promptly responded on 7 February 2006, explicitly giving Mr. Jeffrey the 
permission he had requested: "Mr. Jeffrey has asked in his most recent 
message of 5 February 2006 if I object to him forwarding to the ICDR all 
of my correspondence with ICANN. ICANN may forward any or all of my 
correspondence to whomever you wish. I have been aware, in corresponding 
with ICANN, that ICANN is required to operate to the maximum extent 
feasible in an open and transparent manner, and that my correspondence is 
thus liable to be made public. And I submitted my request for independent 
review to ICANN with knowledge of Article IV, Section 3.13 of ICANN's 
Bylaws, which requires ICANN to post it on ICANN's Web site (although 
ICANN still has not done so)."

I do not know if Mr. Jeffrey has done as he promised to do, but I have 
never received any communication whatsoever from ICDR or AAA.

As I reported to you and Mr. Jeffrey on 24 April 2006, I contacted ICDR 
and the AAA.  They told me that they had never heard of ICANN:

http://hasbrouck.org/blog/archives/001051.html

I received an e-mail message that same day, 24 April 2006, in which Mr. 
Jeffrey promised that "We will immediately check on the response that you 
report to have received from ICDR."  So far as I know, he has not done so. 
I have received no communication from Mr. Jeffrey since that message.

On 29 September 2006, in response to my questions during the ICANN 
telephonic press conference in which you were also participating, Mr. 
Twomey promised me me, "I can't answer specifically to that question.... 
I'll come back to you, quite specifically, ... in writing on that."

He has not done so.  I have never received any communication whatsoever 
from Mr. Twomey, before or since that press conference.

On 2 October 2006, as I have reported in one of my published articles, I 
received a phone call from ICANN Senior Counsel Amy Stathos. She said she 
knew nothing about my outstanding request for independent review, or any 
of my questions, and couldn't answer any of them. She asked me to send her 
(yet again) the previous messages from Mr. Jeffrey promising to respond to 
my questions, and said she would "look into them" and get back to me "as 
soon as possible". I immediately did so. After I left her several follow-
up voicemail and e-mail messages, I received an e-mail message from Ms. 
Stathos on 12 October 2006, in which she promised, "I did receive your e-
mails and will get back to you as soon as I can."   

http://hasbrouck.org/blog/archives/001153.html

She has not done so. I have had no further communication from her.

> I am copying general counsel who has provided this information in the
> past. 

As you know, he has not done so.  As I told you in my e-mail message of 24 
April 2006, "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."

http://hasbrouck.org/blog/archives/001051.html

This remains true today:  Neither Mr. Jeffrey nor any director, officer, 
staff member, or agent of ICANN has yet provided me with any answers, or 
even any response, to any of those questions, particularly those in my e-
mail message to you and Mr. Jeffrey of 5 February 2006 at:

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

> Do you require information beyond that which is referenced below?

Yes, I do.  As you know from my comments of 29 March 2006 in the public 
forum for your meeting in Wellington, and my e-mail message of 24 April 
2006, I continue to require answers to these unanswered questions:

http://hasbrouck.org/blog/archives/001051.html

http://forum.icann.org/lists/wellington/msg00000.html

More importantly, I -- and ICANN's Bylaws -- require action by you, not 
just information from you.  As I pointed out to you in my comments on 
ICANN's Strategic Plan and principles, ICANN is required to *operate* 
accountably and transparently, not just talk about doing so:

http://forum.icann.org/lists/principles-comments/msg00011.html

http://forum.icann.org/lists/stratplan-draft-comments/msg00000.html

ICANN's months-belated succession of unfulfilled promises to act on my 
request for independent review does not satisfy its obligations under its 
bylaws, or yours as an officer and director.

You must designate an IRP provider and approve procedures for independent 
review, in accordance with the policy-making procedures specified in those 
Bylaws.  You must do so, to the maximum extent feasible, in an open and 
transparent manner.  You must post my request for independent review (and 
the other such requests), and the independent review procedures once they 
are approved (which would first require that the proposed procedures be 
posted for public comment, among other procedural requirements) on the 
ICANN Web site.  You must refer my request to the IRP, once one is duly 
designated and procedures for the independent review are duly approved.

And you must allow the IRP a meaningful opportunity to recommend a stay 
pending its review, which would require that you immediately -- as soon as 
possible consistent with due notice -- schedule a maximally open meeting 
of the Board of Directors to consider and act on my request for a stay 
pending independent review, and to begin the process of designating an IRP 
provider and developing policies for the independent review.  

These are your legal duties as an officer and director of ICANN.  I 
reiterate my demand that you immediately bring your actions into 
compliance with your obligation to act in accordance with ICANN's Bylaws, 
or resign your positions as an officer and director of ICANN.

You have provided no evidence that would provide any basis for a belief 
that your actions comply with ICANN's Bylaws, or that would support a 
conclusion by an independent arbitrator that you have acted in good faith 
in your (in)action on my request for independent review.

ICANN's Bylaws provide for you and other officers, directors, and staff to 
be indemnified by ICANN only to the extent that you act in good faith.  I 
remind you that, to the extent that you have acted or not acted in bad 
faith, you have forfeited that indemnification, and have assumed complete 
personal liability for your bad-faith actions and inactions.

Since there is still no e-mail address or point of contact for ICANN's 
Board of Directors as a whole, nor any individual e-mail addresses on the 
ICANN Web site for many of the members of the Board, I request that this 
message be forwarded to each member of the Board, with the same demand 
that they move the Board to act on my outstanding requests.  It is each of 
their duty as a director to ensure that ICANN complies with its Bylaws.

I am also copying this request to ICANN's At-Large Advisory Committee 
(ALAC).  I request that the ALAC request the Board of Directors to place 
the following items on the agenda for the forthcoming ICANN meeting in Sao 
Paulo:  (1) initiation of a policy-development process to designate an 
independent review panel (IRP) provider, to be followed by approval of 
procedures for independent review; (2) consideration and action on pending 
requests for stay pending independent review; and (3) consideration of 
procedures to be followed for pending requests for independent review.

Sincerely,

Edward Hasbrouck

----------------

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

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