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Errors and omissions in staff report

  • To: icm-options-report@xxxxxxxxx
  • Subject: Errors and omissions in staff report
  • From: "Edward Hasbrouck" <edward@xxxxxxxxxxxxx>
  • Date: Mon, 10 May 2010 22:21:04 -0700

There are at least three major problems with the ICANN staff report on 
"options" for ICANN action following the arbitration between ICANN and ICM 
registry:

(1) The staff report on ICANN's "options" is devoted primarily to 
considering how ICANN could *not* implement the findings of the 
arbitrators, rather than how best to implement them. I will not repeat, 
but fully endorse, the comments made on this point by others.

(2) The staff report incorrectly describes the arbitration conducted 
between ICANN and ICM Registry as having been conducted in accordance with 
the provisions of ICANN's Bylaws for an "independent review".

ICANN and ICM Registry mutually agreed to submit certain questions to 
arbitration. But that arbitration did not comply with ICANN's bylaws for 
an independent review.  ICANN's bylaws require specific procedures for 
policy development and decision making. ICANN has not yet followed these 
procedures to properly approve an independent review provider and 
procedures for independent review.  

ICM Registry chose to accept ICANN's choices, made in secret, of 
arbitration provider and arbitration procedures. But that decision by ICM 
Registry is not binding on anyone else. ICANN still needs to *properly* 
select an independent review provider and develop procedures for 
independent review. ICANN also still needs to deal with the other 
independent review requests that it has been ignoring for many years, 
including those from myself, Karl Auerbach, and others.  I urge ICANN to 
schedule a public meeting, as soon as possible, with me and with the other 
people whose requests for independent review are pending, to begin this 
policy development process.

(3) The staff report addresses only issues related to the substance of 
ICANN's decision on ICM Registry's application for sponsorship of .XXX, 
and entirely ignores the procedural issues that were actually central to 
the arbitration and to the arbitrators' findings.  *None* of the options 
discussed in the staff report would do anything to change ICANN's 
procedures, lessen the likelihood of repetition of the procedural 
improprieties that formed the basis for the arbitrators' findings, or 
bring ICANN's procedures into compliance with its Bylaws. 

The arbitrators' finding was *not* that ICANN had made the wrong decision 
on .XXX. The arbitrators' finding was that ICANN had not acted in 
accordance with ICANN's Bylaws. The decision was about ICANN's process, 
not the substantive "yes or no" outcome of ICANN's decision.  

ICANN should reverse its decision on .XXX, but that will not be sufficient 
to rectify the *procedural* problem identified by the arbitrators.  ICANN 
needs to admit that it acted in a manner contrary to its Bylaws, and think 
seriously about why and how it did so and what changes need to be made in 
ICANN's decision-making process in order to bring that process into 
compliance with the Bylaws.  

An organization that doesn't follow its own rules is unlikely to be able 
to reform itself from within.  If ICANN is serious about acting on the 
arbitrators' findings, it should immediately open a public forum on the 
changes need to bring ICANN's procedures into compliance with the Bylaws --
not just what to do about ICM Registry or .XXX.

The Board should schedule substantial time to consider these issues and 
community and outside input at its next meeting.  And that meeting, and 
subsequent discussion of what to do to reform ICANN's decision-making 
process, should be conducted in accordance with the Bylaws, with the 
maximum feasible extent of transparency, not by closed teleconference.  

To begin that discussion, let me suggest some reasons why ICANN did not 
act in accordance with the procedural rules in its Bylaws.  

First, ICANN's organizational culture has not valued procedural due 
process. That needs to change.  

Second, ICANN's failure to comply with its transparency Bylaws has meant 
that many of the violations of other procedural rules and the bylaws have 
occurred in secret.  This has prevented community members, outside 
watchdogs, and journalists such as myself from observing and reporting 
many of the violations of the Bylaws.  This has delayed or prevented 
community and public knowledge and calls for accountability.  

Third, ICANN's staff and legal counsel have failed to monitor ICANN's 
compliance with the procedural rules in ICANN's Bylaws or to alert the 
Board when those procedural rules were not being followed.  Staff 
responsible for this specific function need to be publicly designated and 
held accountable for fulfilling this responsibility.  

Fourth, Board members have relied too much on the advice of the staff and 
legal counsel, and have failed to exercise due diligence not just with 
respect to the substance of decisions but with respect to compliance with 
the procedural rules in ICANN's bylaws.  Each Board member needs to take 
personal responsibility to read the Bylaws, maintain an ongoing awareness 
of their requirements, and object publicly when they are not followed.  

Each of these problems within ICANN needs to be addressed in order for 
ICANN to bring its practices into compliance with the rules in its Bylaws. 
I urge ICANN's Board and staff to make this happen.

I made essentially the same points as above in my comments to the public 
forum during ICANN's meeting in Nairobi on 11 March 2010.

In response, John Jeffrey said, "So that we don't have to speak about
this at every public forum going forward, we're going to put up a Q&A
directly responsive to Mr. Hasbrouck's complaints so that the
community can review that and we could receive any comments about the
information that's been provided to him."  This has not been done.

Mr. Jeffrey further claimed that "In response to Mr. Hasbrouck we have
answered both publicly and in direct correspondence to Mr. Hasbrouck a
number of times that we do not believe he had formally filed his
complaint in an appropriate mechanism. And in November of 2008 and since 
then we have offered him assistance to file that if that's what he would 
like. We again offer that assistance."

What Mr. Jeffrey failed to mention is that while he has repeatedly and 
publicly offered to "assist" me in filing a request for independent review 
(which I had already filed with you on 8 April 2005), he has repeatedly 
failed to follow through on his promises to do so.

I reiterate my outstanding request for a meeting with ICANN to discuss my 
outstanding request for independent review and ICANN's (in)action on it.

Mr. Jeffrey has never spoken to me, and ran away -- literally -- when I 
attempted to speak to him at the one ICANN meeting I attended. Neither Mr. 
Jeffrey nor anyone acting for ICANN has, in fact, referred my request to 
an independent review panel constituted in accordance with ICANN's Bylaws. 
 Nor could they do so without first conducting the prerequisite policy 
development process, in accordance with the Bylaws, to designate an 
independent review provider and approve independent review procedures.

ICANN's only substantive response to my request for information concerning 
whether an independent review provider and independent review procedures 
had been approved and posted on ICANN's Web site, in accordance with the 
procedural rules in ICANN's Bylaws, as of the date of my request on 8 
April 2005, has been an admission that ICANN has never conducted a policy 
development process to designate an independent review provider or approve 
independent review procedures, and a categorical refusal (reversing an 
earlier explicit offer) to provide me with copies of any agreements which 
might exist between ICANN and any independent review provider(s).

A secret side agreement between ICANN and an abitration provider would, of 
course, violate ICANN's Bylaws on transparency, create such an appearance 
of potential bias as to disqualify that provider from being deemed 
"independent", and violate generally accepted norms of arbitration.

During the same public forum, Peter Dengate Thush said, "Let me just 
explain that Mr. Hasbrouck is a frequent complainer about the applications 
through this, and has had frequent responses to this question from ICANN 
legal team."

Mr. Dengate Thrush is correct.  I have complained repeatedly that ICANN 
has failed to act on my request for independent review, or to take any 
steps toward doing so.  I shall continue to complain until ICANN acts on 
my request, and the other even older such requests.  ICANN has ignored 
those complaints, just as it has ignored my original request.

While I have received occasional "responses", they have been entirely 
unresponsive, and in no case have consisted of action by ICANN to consider 
or act on my request of fulfill ICANN's obligations under its Bylaws.

To refresh your memory, and for the benefit of those who have joined the 
Board more recently (my request for independent review now having been 
pending for more than five years), the questions to which I continue to 
seek answers, and to which I have as yet received none, are at:

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

I urge you to use this opportunity to admit that ICANN has acted 
improperly, to think about why and how this happened, and most importantly 
to begin to bring ICANN's practices into conformity with its Bylaws. 

Sincerely,

Edward Hasbrouck


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




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