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omissions from summary of comments, and request for independent review

  • To: draft-mop-2007@xxxxxxxxx
  • Subject: omissions from summary of comments, and request for independent review
  • From: "Edward Hasbrouck" <edward@xxxxxxxxxxxxx>
  • Date: Mon, 12 Nov 2007 16:22:48 -0200

These comments are submitted in response to the revised draft "ICANN 
Accountability and Transparency Frameworks and Principles" and the posted 
summary of comments received by ICANN concerning the previous draft:

"ICANN Accountability and Transparency Frameworks and Principles":
http://www.icann.org/transparency/acct-trans-frameworks-principles-
17oct07.pdf

"Summary/analysis of comments received":
http://forum.icann.org/lists/draft-mop-2007/msg00008.html

It is unclear whether ICANN intends to represent the "Frameworks and 
principles" document as a statement of ICANN's past or current practices 
with respect to transparency and accountability, as a description of 
general concepts intended to be implemented through other decisions, or as 
a set of binding policies and procedures to govern future ICANN actions.

I submitted comments on the previous draft of this document:

http://forum.icann.org/lists/draft-mop-2007/msg00001.html

http://forum.icann.org/lists/draft-mop-2007/msg00002.html

Most of the key points made in my comments are not acknowledged in the 
purported "Summary of comments received" posted by ICANN, and no changes 
have been made in the revised draft responsive to any of my comments.

I request that the "Summary of comments received" be corrected to note 
that ICANN has received comments from community members who continue to 
believe that:

(1) The "ICANN Documentary Information Disclosure Policy" is contrary to 
ICANN Bylaws on transparency, specifically the requirement of the Bylaws 
that "ICANN and its constituent bodies shall operate to the *maximum 
extent feasible* in an open and transparent manner." Either adoption of 
this policy or action by ICANN as described in this policy would be in 
violation of ICANN's Bylaws.

If ICANN's Board adopts these policies, or believes that they have been 
already adopted (which is impossible for me to know, since many ICANN 
"decisions" have been made in secret), or considers them to describe 
ICANN's actions, I request that the decision to adopt these policies or 
act in accordance with them be referred, in accordance with Article 4, 
Section 3 of the ICANN Bylaws, to an independent review panel charged with 
comparing this contested action of the Board to the Bylaws, and with 
declaring whether the Board has acted consistently with the provisions of 
those Bylaws.  I note that I am directly affected by ICANN's policies for 
information disclosure, as the maker of unanswered written requests for 
specific information from ICANN:

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

(2) The posted "Accountability and Transparency Frameworks and Principles" 
do not accurately describe the status of ICANN's policy-development 
process or actions with respect to the ombudsman, reconsideration, or 
independent review.  None of these mechanisms has, in fact, operated in 
accordance with the Bylaws, even when requests have been made:

http://hasbrouck.org/blog/archives/001196.html

(3) ICANN has, in fact, received at least 3 requests for independent 
review and 1 request for a stay pending independent review, but has 
neither acted on them, publicly considered them, designated an independent 
review provider, or adopted procedures for independent review:

Requests:

http://hasbrouck.org/blog/archives/000554.html
http://www.cavebear.com/icann/irc.htm
http://www.icann.org/correspondence/brannon-letter-to-lynn-09sep02.htm

Lack of proper designation of IRP and procedures:

http://hasbrouck.org/blog/archives/000964.html#ICDR
http://hasbrouck.org/blog/archives/001007.html#procedures

(4) ICANN has not, in fact, engaged in any "consultation" with the most 
obviously interested parties: (a) the makers of pending unanswered 
requests for information disclosure; (b) those who have complained about 
the failure of the Ombudsman, the Reconsideration Committee, the Board, 
and other ICANN staff to act in accordance with the Bylaws on transparency 
and accountability; and (c) the makers of pending requests for independent 
review, including my request specifically for independent review of ICANN 
compliance (or lack thereof) with the Bylaws on transparency.

In fact, ICANN has failed to take any action on my repeated, specific, 
written requests -- including in my previous comments in this forum -- 
that it schedule a public meeting to begin such a consultation

(4)  Because ICANN has failed to act in accordance with its corporate 
Bylaws on transparency and accountability, and its contractual commitments 
to the USA Department of Commerce of accountability and transparency, (a) 
the Dept. of Commerce should terminate its contract with ICANN for breach 
of contract, and (b) the California Secretary of State should revoke 
ICANN's corporate charter for failure to act in accordance with the Bylaws 
adopted pursuant to that charter.

I do not expect ICANN's staff or Board to agree with all of these 
comments.  However, I respectfully request that ICANN acknowledge -- in 
its reporting to the public, ICANN stakeholders, and the USA Dept. of 
Commerce on the comments received -- that the specific numbered points 
above were among the allegations, complaints, and requests for action 
received by ICANN in response to the posting of the draft "ICANN 
Accountability and Transparency Frameworks and Principles".

Sincerely,

Edward Hasbrouck
http://hasbrouck.org/icann





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




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