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Responses to questions from the Accountability and Transparency Review Team" (ATRT)

  • To: atrt-questions-2010@xxxxxxxxx
  • Subject: Responses to questions from the Accountability and Transparency Review Team" (ATRT)
  • From: "Edward Hasbrouck" <edward@xxxxxxxxxxxxx>
  • Date: Wed, 14 Jul 2010 08:54:10 -0700

Responses to questions from the ICANN "Affirmation of Commitments 
Accountability and Transparency Review Team" (ATRT)

=====

The following comments are being submitted in response to the questions 
from ICANN's ""Affirmation of Commitments Accountability and Transparency 
Review Team" (ATRT).  These comments summarize my experiences with respect 
to ICANN's lack of transparency and lack of accountability, And my 
responses to the specific questions from the ATRT.  Additional details and 
links to supporting documents are available at:

http://hasbrouck.org/icann/

By way of background, I am an author, blogger, and award-winning 
investigative journalist covering issues related to travel.  In the course 
of my work, I have attempted to report on ICANN's consideration of travel-
related issues, particularly the travel-related top-level domain names 
(TLD's) ".aero" and ".travel".

Most of the meetings related to ICANN's decision-making on these issues 
have been closed to journalists and the public. No notice or access to 
these meetings has been provided, even when I have specifically requested. 
 Similarly, many of the documents related to these decisions have been 
kept secret, even when I have specifically requested them.

My specific requests for access to ICANN meetings, records, and documents, 
made pursuant to the transparency provisions of ICANN's Bylaws, have 
occasionally been denied, but usually have simply been ignored.  When 
ICANN has given reasons for its denials of my requests, those reasons have 
clearly not comply with ICANN's Bylaws on transparency.

I have, with the utmost diligence, attempted to utilize each of ICANN's 
purported accountability mechanisms to challenge its denial of my requests 
for access to meetings, records, and documents, and its failure to comply 
with its Bylaws on transparency.

My efforts to hold ICANN accountable have been entirely unsuccessful. In 
the course of attempting to utilize ICANN's purported accountability 
mechanisms, I have discovered that none of those three purported 
mechanisms (ombudsman, reconsideration, and independent review) has 
actually been implemented by ICANN in compliance with its Bylaws.

While I welcome the efforts of the ATRT, including its attempt to set an 
example of greater transparency in its own activities, I believe that 
there are two important omissions from the questions the ATRT has asked.

First, the ATRT has asked whether ICANN is accountable.  But ICANN's 
Bylaws require not just accountability in general, but the implementation 
of *specific* accountability mechanisms. I urge the ATRT to review whether 
ICANN has complied with the specific requirements of ICANN's own Bylaws on 
accountability.

Second, the ATRT has asked whether ICANN's processes and decision-making 
are transparent.  But ICANN's Bylaws require not just some transparency, 
but that "ICANN and its constituent bodies shall operate to the maximum 
extent feasible in an open and transparent manner."  In general, ICANN has 
operated on the erroneous assumption that as long as some degree of 
transparency is provided, the words "maximum extent feasible" in its 
Bylaws can be ignored. I urge the ATRT to look specifically at whether 
ICANN has operated "to the maximum extent feasible in an open and 
transparent manner", as explicitly required by ICANN's own bylaws.

My responses to the specific questions from the ATRT are as follows:

"1. Do you think ICANN is accountable to all stakeholders? Can you 
identify a specific example(s) when ICANN did not act in an accountable 
manner? If so, please provide specific information as to the circumstances 
and indicate why you believe ICANN’s actions were not taken in an 
accountable manner."  

No, ICANN is not accountable in any meaningful way. Have I have been 
completely unsuccessful and holding ICANN accountable for complying with 
its procedural due process, transparency, and accountability Bylaws in (a) 
its decision-making on applications for TLD's, (b) its promulgation of a 
"Documentary Information Disclosure Policy" clearly contrary to the 
"maximum extent feasible" clause of its transparency Bylaw, and (c) its 
refusal to consider or act on my requests for reconsideration and 
independent review in a manner consistent with its Bylaws.

"2. Do ICANN’s accountability mechanisms, including the Ombudsman, the 
Board reconsideration procedure and the Independent Review Panel provide 
meaningful accountability and, if not, how could they be improved?"  

No, none of these mechanism provide meaningful accountability. It remains 
doubtful whether they would provide meaningful accountability if they were 
implemented. But to date none of these mechanisms has actually been 
implemented by ICANN in accordance with its Bylaws:

(a) Ombudsman: ICANN has no properly appointed ombudsman. ICANN's Bylaws 
unambiguously and specifically require that an ombudsman must be appointed 
by ICANN's Board of Directors, and that the initial appointment of an 
ombudsman be for a term of two years, subject to renewal by the Board. 
ICANN has claimed that ombudsman was appointed on 1 November 2004. There 
is no public record of an ICANN Board meeting on that date, much less of 
any Board decision to appoint an ombudsman. More than two years has passed 
since that date, and there is no record of any Board consideration or 
decision to renew the appointment of an ombudsman. While ICANN has claimed 
to have an ombudsman, despite its obvious failure to comply with the 
requirements of its bylaws for appointment of an on budget and by ICANN's 
Board, that clearly false claim serves only to demonstrate ICANN's lack of 
concern for compliance with its own Bylaws and its own procedural rules 
for decision-making. I have repeatedly called ICANN's attention to its 
failure to properly appoint an ombudsman, but so far as I can tell, no 
action has been taken on this by ICANN.

The failure of ICANN's Board to appoint or renew the appointment of an 
ombudsman would be relatively easy to correct (although there would be 
little or no support, other than from ICANN staff, for the appointment of 
the current purported ombudsman). ICANN's failure to address this issue is 
indicative of the strength with which its corporate culture resists the 
admission of any error by ICANN, and particularly resists the admission of 
any failure to comply with procedural, transparency, or accountability 
rules.

(b) Reconsideration: So far as I can tell, the Reconsideration Committee 
of ICANN's Board of Directors never held a public meeting. My specific 
requests for notice of, and an opportunity to observe, its meetings to 
consider my requests were completely ignored. It would have been feasible 
for reconsideration requests to be considered in public session. Perhaps 
the outcome of reconsideration would be different if the were conducted 
publicly. Perhaps it would be better. Perhaps it would be worse. But it 
would be feasible. If some people believe that would be better to exempt 
the Reconsideration Committee from the requirement of the Bylaws for the 
"maximum extent feasible" of openness and transparency, the appropriate 
action is for them to propose an amendment to ICANN's Bylaws, not to have 
the Reconsideration Committee operate in secrecy in violation of the 
current Bylaws. (As a journalist, and as an advocate for transparency, I 
would strongly oppose any such proposal. I believe that the current 
transparency provision of the Bylaws was adopted in the correct belief 
that full transparency will result in better decision-making outcomes.)

My Reconsideration Request 05-02 was denied on the basis of communications 
between the (purported) Ombudsman and the Reconsideration Committee, and 
related to an separate matter in which I had requested the assistance of 
the person acting as "Ombudsman". (Both the matter before the purported 
Ombudsman and the matter before the Reconsideration Committee related to 
ICANN's refusal to give access to specific meetings and records. But it is 
perfectly normal for a journalist to have multiple requests for access to 
meetings and records pending at the same time before the same body. My 
requests to the purported Ombudsman and to the Reconsideration Committee 
related to different meetings and records.) Whatever the content of those 
communications, (1) they were not (and still are not) in the public 
written record, and thus could not provide a valid basis for a decision by 
the Reconsideration Committee, which is specifically required by the 
Bylaws to base its decision "solely on the public written record", and (2) 
they violated the purported confidentiality principles of the person 
acting as ICANN's Ombudsman.  I have pointed out to ICANN both the 
violation of the requirement for the reconsideration committee to base its 
decision solely on the public written record, and the violation of the 
purported confidentiality of requests for assistance from the (purported) 
Ombudsman. If any action has been taken in response, it has been taken 
entirely in secret.

(c) I have made two formal requests for independent review of specific 
actions by ICANN which I believe are contrary to ICANN's Bylaws on 
transparency. On 8 April 2005, I requested an independent review of 
whether the procedures by which ICANN reached its decision to approve the 
".travel" agreement complied with ICANN's Bylaws on transparency. On 12 
November 2007, I requested an independent review of whether ICANN's 
"Documentary Information Disclosure Policy" complies with ICANN's Bylaws 
on transparency. So far as I can tell, no action has ever been taken on 
either of these requests, and ICANN has not, in fact, referred them to 
independent review panels as required by ICANN's bylaws.

ICANN has claimed that it has designated the ICDR as its exclusive 
independent review provider, and has claimed that this decision did not 
require a formal policy development process. In so doing, ICANN has 
completely ignored the specific procedural and transparency requirements 
of its Bylaws, particularly as they relate to policies that purport to 
impose fees. There is no public record of ICANN's Board ever having 
considered procedures for independent review, despite the specific 
requirement of ICANN's Bylaws that the procedures for independent review 
must be approved by the Board. ICANN has repeatedly and explicitly 
promised, in writing, to refer my request to an independent review panel, 
but has never done so. Despite claiming to be willing to "assist" in 
arranging a meeting between me and ICDR (ICDR having told me, when I 
contacted them directly, that they had never heard of ICANN), ICANN itself 
has never willing to meet with me, and has never placed my requests on the 
agenda for any public ICANN meeting.

"3. Do you think ICANN’s processes and decision making is transparent? Can 
you identify a specific example(s) when ICANN did not act in a transparent 
manner. If so, please provide specific information as to the circumstances 
and indicate why you believe ICANN’s actions were not taken in a 
transparent manner. Are ICANN’s transparency mechanisms robust and how 
could they be improved?"  

As noted above, the relevant criterion is not whether ICANN's processes 
are transparent, but whether ICANN operates with the "maximum extent 
feasible" of transparency. It does not.

When ICANN has deigned to give any reasons at all for its refusal to 
provide access to meetings, documents, or records, it has typically relied 
on one or both of two arguments, neither of which has anything to do with 
whether it would be "feasible" to give access:

(a) Promises of confidentiality made by ICANN to third parties. This begs 
the question of whether ICANN can, consistent with its obligation to the 
"maximum extent feasible" of transparency, make promises of 
confidentiality to third parties submitting documents to ICANN unless it 
would not be "feasible" for ICANN to operate without doing so.

Third parties should be aware that ICANN is required to act in a fishbowl, 
and should not submit documents to ICANN that they don't wish to have made 
public (just as they should not submit documents to government entities 
that they do not wish to become public, if they are aware that those 
government entities are subject to transparency rules that require them to 
make public documents received from third parties).

(b) Belief that decision-making would benefit from closed meetings or from 
consideration of documents and records withheld from public disclosure. 
But as discussed above, this is at most, an argument that might be made in 
favor of a proposal to amend ICANN's transparency Bylaws, not a valid 
justification for departure from the current Bylaws.
 
To give only a few of the most obvious and/or most serious examples:

(a) It would clearly be feasible to make ICANN Board meetings accessible 
to real-time auditing, and/or to make public audio recordings of those 
meetings. But that is not done, despite repeated requests from journalists 
such as myself and other members of the public.  ICANN has never publicly 
considered these requests on the basis of what is "feasible".

(b) ICANN's Board of Directors routinely holds secret discussions at so-
called "retreats" and other events which are "not designated as public 
meetings", through a non-public e-mail discussion list, and on the basis 
of non-public staff reports.  It would be "feasible" to disclose all or 
most of these discussions and documents, but they are kept secret from 
journalists and the public for reasons having nothing to do with the 
feasibility of disclosing them.

(c) The evaluations of applications for new TLD's were conducted almost 
entirely in secret, even though I had, as a journalist and as a 
stakeholder, specifically requested notice of any meetings to consider the 
applications.  The evaluators were appointed in secret, and were not 
publicly identified until months after the completion of their work. They 
met in secret, and their reports and recommendations to ICANN were kept 
secret until months after they had been submitted to ICANN and used as the 
basis for decisions by ICANN's Board. Other documents submitted by 
applicants and relied on by ICANN as part of the basis for its decisions 
remain secret, despite my specific requests for them. (This is the subject 
of the first of my pending requests for independent review.)

(d) ICANN's "Documentary Information Disclosure Policy" purports to allow 
ICANN to withhold documents from disclosure, even when they are 
specifically requested, for numerous reasons having nothing to do with 
whether it would be "feasible" to disclose them.  (This is the subject of 
the other of my pending requests for independent review.) 

(e) Perhaps the clearest example of ICANN's failure to comply with the 
"maximum extent feasible" clause of its Bylaws on transparency, and of the 
excuses offered by ICANN for its departures from transparency, is the 
response I received (four years after my initial request) to my request 
for any agreements between ICANN and ICDR and/or any other purported 
independent review providers:

"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."

Of course, secret ex parte discussions between ICANN and ICDR while my 
request was pending, and/or the existence of a secret contractual side 
agreement between ICANN and ICDR, would clearly preclude ICDR from 
consideration as an "independent" review provider, were it now to be duly 
proposed for designation as such.

But what is most noteworthy about ICANN's response, as quoted above, is 
the complete lack of any reference to the "maximum extent feasible" terms 
of ICANN's Bylaws on transparency, or any consideration of the feasibility 
of disclosure of the requested documents.  ICANN's statement, "[I]t is 
hard to identify what public interest would be served by the disclosure of 
the contract," makes clear the that ICANN itself completely fails to 
understand that transparency, in and of itself, is a public interest --  
which is among the major reasons why ICANN's bylaws include their current 
transparency provisions.

"4. What is your general assessment of ICANN's commitment to the interests 
of global Internet users? Can you provide a specific example(s) when ICANN 
did not act in the interests of global Internet users? If so, please 
provide specific information as to the circumstances and indicate why you 
believe ICANN’s actions were not taken in a manner consistent with the 
interests of global Internet users.  

ICANN has little or no commitment to the interests of global Internet 
users. The clearest example of ICANN action contrary to the interests of 
global Internet users was the elimination of direct public election of 
members of ICANN's Board of Directors.

Most global Internet users use the Internet as Web surfers and users of e-
mail and other Web services. The overwhelming majority of global Internet 
users are not domain name registrants. But ICANN's structure defines 
constituencies among domain name registrants, and provides no meaningful 
representation for the interests of those Internet users who have not 
registered their own domain names.

"5. What is your assessment of the ICANN Board of Directors' governance 
[]?"

ICANN's Board of Directors has completely failed at self-governance. As 
discussed above, ICANN's Board has repeatedly taken actions, or has failed 
to act, in ways which competent and diligent board members conscious of 
their responsibilities should have known were clearly contrary to ICANN's 
bylaws on account ability and transparency.

I have repeatedly pointed out each of the violations of ICANN's 
transparency and accountability Bylaws discussed above in comments to 
ICANN. But ICANN's Board of Directors has taken no action to bring itself 
or other ICANN bodies into compliance with its Bylaws, and has never been 
willing to meet with me or to place any of these issues on the agenda for 
a public meeting.

ICANN's internal accountability and transparency mechanisms having failed, 
I continue to urge the US Department of Commerce to act on my 
unacknowledged whistle-blower contract fraud complaints that ICANN has 
violated its contractual commitments to the DOC regarding accountability 
and transparency, and to urge the California Secretary of State to revoke 
ICANN's corporate charter for failure to act in accordance with its 
Bylaws, specifically those provisions of its Bylaws related to 
accountability and transparency.

I would be happy to meet with the ATRT and/or its members, staff, or 
consultants, in person or by telephone, and to respond to any written 
inquiries or requests for clarification. As the individual who has made 
the most extensive efforts to hold ICANN to its purported principles of 
transparency and accountability, I believe that my engagement with ICANN 
provides the most important single case study of ICANN's accountability 
and transparency, and conclusively demonstrates that ICANN has failed to 
comply with its Bylaws or to provide any meaningful mechanisms for 
accountability or full transparency.
----------------
Edward Hasbrouck
<edward@xxxxxxxxxxxxx>
<http://hasbrouck.org>
+1-415-824-0214





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