independent review and information disclosure policies

["Edward Hasbrouck" <edward@xxxxxxxxxxxxx>]

In the guise of measures for transparency and independent review, ICANN 
has posted policies and procedures which would make explicit ICANN's 
secrecy and lack of accountability to the public or to any independent 
body.  In their fine print, these policies and procedures would violate 
ICANN's Bylaw's on transparency and independent review, and strip those 
provisions of the Bylaws of any practical meaning or value.

As part of the proposed "ICANN Accountability and Transparency Frameworks 
and Principles", ICANN has proposed a new "Documentary Information 
Disclosure Policy", and has posted a new link to a newly revised page on 
the ICANN Web site, which has new links to two pages on another Web site 
which are claimed to constitute the Independent Review Provider (IRP) and 
the procedures for independent review of decisions by ICANN:

ICANN Posts Draft Management Operating Principles for Community 
Consultation:
http://www.icann.org/announcements/announcement-23jun07.htm

ICANN Documentary Information Disclosure Policy:
http://www.icann.org/transparency/acct-trans-frameworks-principles-
23jun07.htm#doc

Dispute Resolution at ICANN (links to new Independent review links):
http://www.icann.org/transparency/acct-trans-frameworks-principles-
23jun07.htm#dis

ICANN Accountability and Review:
http://www.icann.org/general/accountability_review.html

ICDR's International Arbitration rules and procedures:
http://www.adr.org/sp.asp?id=28144#Intl_Arb_Rules

Supplementary Procedures for Internet Corporation for Assigned Names and 
Numbers (ICANN) Independent Review Process:
http://www.adr.org/sp.asp?id=32197

But each of these pages was posted for the first time, or revised to add 
this information for the first time, on Saturday, 23 June 2007, just 1 day 
before the start of ICANN's meetings in San Juan, and less than 7 days 
before the scheduled meeting of ICANN's Board of Directors in San Juan.

These newly-disclosed and/or newly-proposed information disclosure and 
independent review policies are the most important changes to ICANN's 
policies for transparency, accountability, and procedural due process 
since the 2002 "reform" process and revisions to ICANN's Bylaws.

Such significant policies should not -- and, under the procedural rules of 
ICANN's Bylaws, *may* not -- be adopted except as the outcome of a policy 
development process that includes specific steps, including posting for a 
minimum of 7 days public comment period, consultation with the 
Governmental Advisory Committee, and so forth.  Such general ICANN 
policies cannot be set by fiat, or posted as a fait accompli.

ICANN should take no action on these proposals -- other than to make clear 
that the information disclosure and the independent review procedures, and 
the designation of an IRP are proposals that have not yet been adopted -- 
at the San Juan meeting, without the required 7 day public comment period. 

Instead, ICANN should initiate a proper policy development process, in 
accordance with the procedural requirements of ICANN's Bylaws, to (1) 
designate an Independent Review Provider (IRP), (2) develop procedures for 
independent review of decisions by ICANN, and (3) develop policies and 
procedures for responses to requests for information.

I made these same requests, among others, when ICANN first sought 
community input on the development of transparency and accountability 
management operating principles:

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

If the proposed rules are considered, they should be rejected as contrary 
to ICANN's Bylaws.  With only 1 day's notice, it is impossible to list in 
detail all of the defects in the proposals, the ways they (and the manner 
of their promulgation) violate ICANN's Bylaws on transparency and 
accountability, or the reasons they are inappropriate on policy grounds.  
I will confine myself to listing a few of the most obvious direct 
contradictions between the proposed policies and ICANN's Bylaws:

(A) ICANN's Bylaws require that "ICANN and its constituent bodies 
shall operate to the maximum extent feasible in an open and transparent 
manner."  This requirement applies to ICANN "operations", not just ICANN 
decisions.  It requires not just some transparency but "the maximum extent 
feasible".  By its plain language, it permits only one exception to 
transparency: where it would not be "feasible" to disclose information.

But the proposed "ICANN Documentary Information Disclosure Policy" would 
create 12 categories of exceptions to the disclosure requirement, none of 
them based on what information it is not "feasible" to disclose.  And by 
exempting from disclosure most information relating to ICANN's 
"deliberative and decision-making process" and "internal documents", they 
would effectively narrow any requirement of transparency to ICANN's final 
decisions, excluding almost all other aspects of how ICANN operates.

Individually and collectively, each and every one of the proposed 
exceptions to disclosure is thus barred by ICANN's Bylaws.

(B) The proposed exceptions to the information disclosure requirement 
refer to promises and expectations of confidentiality. But since ICANN is 
required to operate transparently, officers and agents of ICANN lack any 
authority to make promises of confidentiality.  And anyone dealing with 
ICANN should be aware that ICANN is required to operate transparency, and 
thus should not have any expectation of confidentiality.

(C) Article 27.4 of the newly-linked "International Dispute Resolution 
Procedures" and Section 8 (a) of the "Supplementary Procedures for 
Internet Corporation for Assigned Names and Numbers (ICANN) Independent 
Review Process"  provide that, "A DECLARATION may be made public only with 
the consent of all parties or as required by law."

It would obviously be "feasible" for the declaration of the independent 
reviewer to be made public.  So this provision is directly contrary to 
ICANN's transparency Bylaw.  In practice, it would render independent 
review useless:  Under the accountability Bylaw, the *only* power of the 
independent reviewer(s) is to issue a declaratory opinion.  That would be 
meaningless if ICANN as a "party" could choose not to consent to the 
disclosure of an adverse or merely embarrassing declaration.

(D) Section 10 of the newly-linked "Supplementary Procedures for Internet 
Corporation for Assigned Names and Numbers (ICANN) Independent Review 
Process" provides that "Article 37 of the RULES will not apply."

Article 37 of the "International Dispute Resolution Procedures" is the 
only Article of those procedures describing or giving authority for 
"emergency relief" such as a stay while the review in pending.

But ICANN's Bylaws require that "The IRP shall have the authority to ...  
recommend that the Board stay any action or decision, or that the Board 
take any interim action, until such time as the Board reviews and acts 
upon the opinion of the IRP." 

In the absence of any alternative provision for a recommendation for a 
stay, the exclusion of Article 37 of the "International Dispute Resolution 
Procedures" means that the procedures as a whole fail to meet the 
requirements of ICANN's Bylaws.

(D) The newly-linked independent review rules and procedures contain no 
indication of when, how, or by whom they were adopted.  As I have reported 
previously, diligent search and repeated unanswered queries to ICANN have 
produced no evidence that these, or any other, procedures for independent 
review or designation of an independent review provider have been approved 
by ICANN in accordance with the procedural rules in ICANN's Bylaws:

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

I hereby reiterate and incorporate by reference my specific requests, 
pursuant to ICANN's transparency Bylaws, for answers to the specific 
questions I asked, in writing, on 5 February 2006, and to which I have as 
yet received no response whatsoever from ICANN:

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

If ICANN cannot or will not (as it has not to date) provide any basis for 
its claim that it has duly designated an IRP and duly approved the newly-
posted procedures for independent review, then I reiterate my demand that 
ICANN begin to bring itself into compliance with its Bylaws, by promptly 
initiating a policy development process to designate an IRP and developing 
procedures for independent review, and by promptly and publicly 
considering my outstanding request for a stay pending action on my pending 
request for independent review of the lack of transparency of ICANN's 
decision-making process on .travel.

I also remind ICANN of, and reiterate, my unanswered written request of 8 
April 2005, under the transparency Bylaw, for "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."

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

If ICANN has, in fact, conducted discussions with potential independent 
review providers, while my request (and others) were pending, without 
notice or disclosure to me, those discussions have been in violation of 
ICANN's transparency Bylaws, and have deeply prejudiced my ability to 
judge the fitness or independence of any IRP proposed by ICANN.

If ICANN persists in its refusal to comply with its own corporate Bylaws 
and transparency and accountability, I urge the USA Department of Commerce 
to terminate its contracts with ICANN for gross breach of its contractual 
commitments to transparency and accountability. And I urge the Secretary 
od State of California to revoke ICANN's corporate charter for failure to 
act in accordance with the Bylaws adopted under that charter.


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