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
(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
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:
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.