[gtld-strategy-draft] Lack of oversight or compliance with bylaws, sponsorship agreements, or the MOU
- To: gtld-strategy-draft@xxxxxxxxx
- Subject: [gtld-strategy-draft] Lack of oversight or compliance with bylaws, sponsorship agreements, or the MOU
- From: Edward Hasbrouck <edward@xxxxxxxxxxxxx>
- Date: Tue, 5 Oct 2004 09:38:17 -0700
The ICANN report "Strategy: Introduction of New Generic Top-Level Domains"
<http://www.icann.org/tlds/new-gtld-strategy.pdf> does not actually
contain a strategy. Instead, it is a list of issues that need to be
addressed, and decisions that need to be made, in order to define a
strategy -- but that have not yet been completed.
As such, it does not -- contrary to the false claim on the ICANN Web site
at <http://www.icann.org/topics/gtld-strategy-area.html>, "fulfill... the
ICANN Board resolution of October 2003", or the MOU with the USA
Department of Commerce (DOC). Instead, it serves only to define some of
the issues that ICANN had committed itself under the MOU to have completed
by now, but has not yet completed. In that sense, the "Strategy" paper is
primarily an itemization of ICANN's failure to fulfill its commitments,
and should be part of the grounds for the DOC to revoke the MOU.
In particular, the "Strategy" report states on pp 11-2:
"ICANN will develop the procedure for designation of new gTLD registries.
Those steps include:
"1. Reviewing and synthesizing outputs and developing recommendations
regarding new gTLD introduction processes...
"b. Consideration of public comment on studies and draft recommendations,
"2. Monitor implementation results, feedback, and development of new
It's important for the DOC, ICANN, and other stakeholders to notice that
these essential steps are described in the future tense ("ICANN will").
ICANN has, to date, created no process for monitoring or oversight of sTLD
sponsors, or of their compliance with their agreements with ICANN.
ICANN has entirely ignored repeated comments made directly to the ICANN
Board of Directors, during the public forum sections of their meetings (in
the absence of any other forum or process for considering them),
concerning the (lack of) monitoring or oversight of the new gTLD process,
including my comments linked from <http://hasbrouck.org/icann>. I also
note for the record that the issues I have raised in those comments
remain: sTLD sponsors have taken no action whatsoever to bring their
decision-making activities into compliance with their agreements with
ICANN or with the limitations inherent in ICANN delegations of authority.
The report commissioned by ICANN from Summit Strategies International,
"Evaluation of the New gTLDs: Policy and Legal Issues"
<http://icann.org/tlds/new-gtld-eval-31aug04.pdf>, specifically excluded
any actual monitoring or oversight of sTLD sponsors. Footnote 61, pages
77-78 of that report, notes that I had repeatedly raised this issue, but
says that, "The monitoring phase recommended by the Task Force Report is
separate from this Evaluation."
ICANN's own consultants, in the only evaluation ICANN has commissioned
(ICANN conducted no evaluation of its own) of the new gTLD process, thus
acknowledged that their evaluation was not comprehensive or complete, and
that part of the process recommended by ICANN's own "New TLD Evaluation
Process Planning Task Force" has not yet been carried out.
ICANN cannot, therefore, truthfully claim that the Summit Stretegies
International report was "comprehensive" with respect to the relevant and
outstanding issues, or that the recommendations of the New TLD Evaluation
Process Planning Task Force have been carried out.
I reiterate my urgent request that ICANN take immedaite action to (1)
either bring sTLD sponsors into compliance with their ageeements with
ICANN, and with ICANN's bylaws, particularly with respect to openness,
transparency, community participation, and bottom-up consensus process, or
terminate those agreements for material breach by sTLD sponsors, and (2)
create an ongoing structure and process for oversight of sTLD sponsors'
compliance with their agreements and ICANN"s bylaws, and their exercise of
decision-making authority delegated to them as agents of ICANN.
If ICANN continues to fail to do this, I request that the California
Secretary of State revoke the charter of ICANN for failure to act in
accordance with its bylaws, and that the DOC terminate its MOU with ICANN
for material breach of its commitment to the principles of openness,
transparency, community participation, and bottom-up consensus process,
all of which are violated by delegations of decision-making authority to
sTLD sponsors or other agents that do not abide by those principles.
Article, 3, Section 1 of ICANN bylaws provides that, "ICANN and its
constituent bodies shall operate to the maximum extent feasible in an open
and transparent manner and consistent with procedures designed to ensure
fairness." ICANN has the authority to delegate -- to an sTLD sponsor or
anyone else -- only that decision-making power which ICANN itself
possesses. This clause requires more than just "some" degree of openness,
transparency, and procedural assurance of fairness. It explicitly
requires this, "to the maximum extent feasible".
ICANN has *completely* failed to enforce this provision of its bylaws,
with respect to either its own direct decision-making or its delegations
of authority to agents, particularly its agreements delegating decision-
making authority to sTLD sponsors.
ICANN has *completely* failed to exercise oversight over the exercise by
sTLD sponsors of decision-making authority delegated to them. (Under
Article 14 of ICANN's bylaws, ICANN is committed to indemnify "any ...
agent of ICANN". Since an explicit delegation of decision-making
authority creates a relationship in which ICANN is the principal and the
sTLD sponsor is ICANN's agent, ICANN is liable for the acts of sTLD
sponsors. ICANN's failure to exercise any oversight over sTLD delegated
decision-making is thus a material breach of fiduciary responsibility, and
grounds for the removal of the ICANN board of directors and appointment of
a trustee to manage the corporation, if it is not dissolved.)
If the "proof of concept" round of new sTLD's has proved anything, it is
that, in the absence of oversight and enforcement, sTLD sponsors will not
comply with ICANN's requirements for the maximum extent feasible of
openness, transparency, and procedures designed to ensure fairness.
I urge ICANN not to approve any more sTLD's until it has acted on this
lesson of the sTLD experiment, brought existing sTLD sponsors into
compliance or terminated their sponsorship agreements, and established
open, transparent, procedures for oversight and enforcement of compliance
by sTLD sponsors with their agreements with ICANN and ICANN bylaws
governing the exercise of delegated decision-making authority.
And I urge the DOC to recognize in the failure of the "proof of concept"
the failure of ICANN to meet its commitments in the MOU with the DOC.
ICANN, Internet, and ".aero" stakeholder
further supporting and background documents are linked at: