Re: [ga] Failure to implement Bylaws

[Joe Baptista <baptista@xxxxxxxxxxxxxx>]

I for one would enjoy having a chat with Edward.

I think Edward is very well informed.

See - the GA is the place to rock and roll the ICANN hoard. It's the only
place where free speech has always won in the end. Edward has taken a lead.

It's people like Edward I pray to God we have more of.

cheers
joe baptista

p.s. Edward - send me your contact details. I'll call. Your on the ball.



On Fri, Sep 25, 2009 at 5:51 PM, Hugh Dierker <hdierker2204@xxxxxxxxx>wrote:

> Excellent and worth the read. Helped me to re-examine some long held
> beliefs.
>
> --- On *Fri, 9/25/09, Joe Baptista <baptista@xxxxxxxxxxxxxx>* wrote:
>
>
> From: Joe Baptista <baptista@xxxxxxxxxxxxxx>
> Subject: Re: [ga] Failure to implement Bylaws
> To: "Edward Hasbrouck" <edward@xxxxxxxxxxxxx>
> Cc: iic-proposed-bylaws@xxxxxxxxx, na-discuss@xxxxxxxxxxxxxxxxxxxxxxx,
> ga@xxxxxxxxxxxxxx
> Date: Friday, September 25, 2009, 10:44 AM
>
>
> you have made some excellent points.
>
> cheers
> joe
>
> On Thu, Sep 24, 2009 at 9:50 PM, Edward Hasbrouck 
> <edward@xxxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=edward@xxxxxxxxxxxxx>
> > wrote:
>
>>
>> ICANN has requested comments by tomorrow, 25 September 2009, on proposed
>> revisions to the ICANN Bylaws for "Independent Review" of ICANN decisions:
>>
>> http://www.icann.org/en/announcements/announcement-27jul09-en.htm
>>
>> The fundamental problem with ICANN's current Bylaws for independent review
>> is that those bylaws have never been properly implemented, and that --
>> despite multiple requests for independent review of ICANN decisions -- no
>> independent review comporting with either the present or the previous
>> independent review Bylaws has ever been conducted.
>>
>> (According to a cursory statement on the ICMRegistry.Com Web site, some
>> sort of "hearing" is being conducted in Washington this week in response
>> to ICM Registry's request for independent review of an ICANN decision.
>> However, whatever is happening in that matter is not in accordance with
>> ICANN's Bylaws on independent review.  First, the proceedings are not
>> being conducted with the maximum extent feasible of transparency, as
>> required by the Bylaws. Second, the independent review provider and its
>> procedures  were not determined by ICANN in accordance with the procedural
>> rules of ICANN's bylaws for such policy decisions.  Instead, ICANN appears
>> to have chosen the independent review provider and allowed it to determine
>> procedures -- which procedures themselves do not comport with ICANN's
>> Bylaws on transparency -- through completely improper secret, ex parte
>> negotiations with the potential independent review provider while
>> independent review requests with other parties were already pending.)
>>
>> Changing the bylaws on independent review will accomplish nothing unless
>> those bylaws are actually implemented (in accordance with, inter alia, the
>> other provisions of the Bylaws with respect to policy development and
>> decision-making procedures and transparency).  ICANN has done nothing to
>> give reason for any confidence whatsoever that ICANN will actually
>> implement any accountability mechanisms, current or revised.
>>
>> As I have noted repeatedly in previous comments to ICANN, ICANN has failed
>> to implement any of the three accountability mechanisms required by its
>> current Bylaws.  ICANN's Board of Directors has never held a publicly
>> disclosed vote to appoint or reappoint an Ombudsman. The Reconsideration
>> Committee of the Board of Directors has made decisions which, by its own
>> declaration, were based on matters not permitted to be a basis for such
>> decisions. And ICANN has never conducted a policy development process to
>> designate an independent review provider or develop or approve procedures
>> for independent review, just as it never appointed the members of the
>> independent review body provided for by its previous Bylaws.
>>
>> (I also note that the ICANN's request for comments is materially false and
>> misleading in its claim that, "ICANN has an Independent Review Process in
>> place, as established at Article IV, Section 3 (1) of the bylaws".  ICANN
>> does not, in fact, have any process in place that has been established in
>> accordance with ICANN's accountability and transparency Bylaws.)
>>
>> ICANN has knowingly and wilfully persisted in this failure, in flagrant
>> violation of its own Bylaws. Members of ICANN's Board of Directors have
>> tolerated this ongoing and flagrant violation of the Bylaws.  Given
>> ICANN's failure to establish any other means of accountability, the only
>> remaining mechanisms for calling ICANN to account are for the United
>> States Department of Commerce to revoke its contracts with ICANN for
>> breach of contract (in that ICANN has made contractual commitments to the
>> DOC to observe its Bylaws on accountability), and for the State of
>> California to revoke ICANN's corporate charter for persistent failure to
>> operate in accordance with its Bylaws, as required by that charter.
>>
>> Requests for independent review made under both the previous and present
>> independent review Bylaws remain pending and have not been acted on by
>> ICANN. The proposed revised independent review Bylaws are silent on what
>> action, if any, will ever be taken on these outstanding requests.
>>
>> Rather than revise the independent review Bylaws yet again, ICANN should
>> implement its existing Bylaws on accountability, including independent
>> review, by (1) appointing an Ombudsman, (2)compelling the Reconsideration
>> Committee to act in accordance with the Bylaws in new cases and to
>> properly reconsider those cases previous decided on impermissible grounds,
>> and (3) designating an Independent Review Provider, developing procedures
>> for independent review, and considering the backlog of outstanding
>> requests for independent review, all in accordance with the procedural
>> rules in the Bylaws for such decisions and actions, and the general
>> mandate of the Bylaws for the maximum extent feasible of transparency in
>> the operations of ICANN and its subsidiary bodies.
>>
>> Sincerely,
>>
>> Edward Hasbrouck
>>
>> edward@xxxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=edward@xxxxxxxxxxxxx>
>> http://hasbrouck.org/icann
>>
>>
>>
>
>
> --
> Joe Baptista
>
> www.publicroot.org
> PublicRoot Consortium
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> & Accountable to the Internet community @large.
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>
>


-- 
Joe Baptista

www.publicroot.org
PublicRoot Consortium
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The future of the Internet is Open, Transparent, Inclusive, Representative &
Accountable to the Internet community @large.
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 Office: +1 (360) 526-6077 (extension 052)
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