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Limitations of report on ICANN transparency and accountabilty

  • To: transparency-2007@xxxxxxxxx
  • Subject: Limitations of report on ICANN transparency and accountabilty
  • From: "Edward Hasbrouck" <edward@xxxxxxxxxxxxx>
  • Date: Tue, 24 Apr 2007 12:27:45 -0700

ICANN has requested public comments on the report of One World Trust, "Independent Review of ICANN's Accountability and Transparency -- Structures and Practices".

Report:
http://www.icann.org/transparency/owt-report-final-2007.pdf

Request for comments:
http://www.icann.org/announcements/announcement-4-29mar07.htm

These comments will address what the report did *not* do.

With respect to the methodology of the review, the public knows only what was said in the report itself. The members of the review team are not named, so it is impossible to evaluate their claimed independence. The contract, if any, between One World Trust and ICANN has not been made public. No public meetings were held by the reviewers, or between the reviewers and ICANN. The interviews for the review were not conducted publicly. No correspondence between the reviewers and ICANN has been made public. No point of contact for the reviewers has been made public. No point of contact at ICANN for requests for any of these documents, records, or meeting information has been made public.

The public does not know how the reviewers chose who to interview. They did not interview many of those who have made the most detailed critiques of ICANN's lack of transparency and acocuntability, such as Karl Auerbach, Prof. Michael Froomkin, and myself. More importantly, the reviewers did not solicit public input.

It is likely that the reviewers would have received much more information about ICANN's lack of transparency and accountability if they had made it possible for those with such information to bring it to the reviewers' attention.

No organization can be expected fully to disclose its own failings, and one of the special evils of lack of transparency is that it hides complaints and problems.

As a result of these methodological problems, and the lack of transparency of the review process, the report should be treated as a report limited largely to ICANN's *self-reported claims* to transparency and accountability, without opportunity for public input, reporting of problems, or opportunity for the presentation of evidence to rebut ICANN claims.

With respect to the criteria for the evaluation, the review appears to address only whether ICANN provides *some* transparency and accountability. The report does not not include any comparison of ICANN's practices with the specific transparency and accountability requirements of ICANN's Bylaws. The report cannot and should not, therefore, be cited as evidence that ICANN complies with its Bylaws on transparency and/or accountability.

The report claims that, "The review we have undertaken covered both the structures and principles that have been put in place through ICANN's By-Laws to facilitate accountability and transparency and the actual practice." But there is no evidence in the rest of the report that there was any actual review of ICANN's practices, or any likelihood (absent solicitation of public input) that the reviewers would have learned of failures not disclosed by ICANN. If someone asked for documents or records that could feasibly have been disclosed, and ICANN ignored the request, how would the reviewers have known about it?

Since the report did not do so, I will summarize the comparison of ICANN's actual practices with the requirements of ICANN's Bylaws on transparency and accountability:

On transparency, ICANN's Bylaws require that "ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner."

The report does not address what "the maximum extent feasible" would mean. ICANN itself has never addressed this question, and has systematically ignored these words in the Bylaws. Many feasible transparency measures have not been taken. For example, meetings of the Board of Directors, committees of the Board, the GAC, and other "constituent bodies" continue to be held behind closed doors, or by closed teleconferences or non-public mailing lists, even when specific requests for public access have been made to the Board of Directors and/or the Corporate Secretary. There is no designated point of contact for requests for ICANN documents, records, or meeting information.

ICANN's Bylaws on accountability establish specific requirements for three mechanisms: an Ombudsman, Reconsideration, and Independent Review. None of these mechanisms has yet been implemented or allowed to operate in accordance with the Bylaws, as I have reported at:

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

ICANN's Bylaws require that, "The Ombudsman shall be appointed by the Board for an initial term of two years, subject to renewal by the Board."

ICANN announced in November 2004 that an Ombudsman had been appointed. But there is no record in the publicly-disclosed minutes of meetings of the Board of Directors that such an appointment was ever made by the Board. And more than two years have passed, with no record of any decision to renew any such appointment.

Since most Board meetings are secret, and some minutes have never been published, it's impossible for the public to tell if the Board secretly appointed and/or renewed the apointment of an Ombudsman (in violation of the transparency Bylaw), or if an Ombudsman was appointed by some entity other than the Board (in violation of the Ombudsman Bylaw). But it's clear from even cursory comparison of the Bylaws with ICANN's public records that the person acting as Ombudsman has not been properly appointed, and that one or the other Bylaw has been violated. (The failure of One World Trust to notice this obvious failure reflects badly on the credibility of the review and its report.)

The person acting as Ombudsman has committed such grave breaches of professional ethics and the Bylaws that they would clearly be unfit for the position, even if they were now proposed for appointment by the Board. In my case, the person acting as Ombudsman intervened -- successfully -- to block my access to the reconsideration process on a different issue, even though he knew or reasonably should have known that it would be a violation of ICANN's Bylaws for his opinions to be used as a basis for that action by the Reconsideration Committee.

The Reconsideration Committee has never held a public meeting. And in my case, the Reconsideration Committee based its decision on material outside the public record, in violation of the Bylaws; granted the person acting as Ombudsman secret veto power over its docket; and compounded those violations by keeping them secret for a year and a half. Since only decision of the Board are supposed to be subject to Independent Review, dismissal of a request by the Reconsideration Committee, so that no decision is ever made by the full Board of Directors, precludes any request for Independent review. So both the Reconsideration Committee and the person (improperly) acting as Ombudsman improperly denied me any entitlement to independent review on that issue.

On the issue on which there was a specific decision of the Board of Directors, and I made a request for Independent Review, no action has been taken after more than two full years:

http://hasbrouck.org/icann/

ICANN's General Counsel and Senior Counsel have claimed that ICANN has in place procedures for independent review, and has designated an Independent Review Provider. But they have failed to take any of the specific actions required by the Bylaws, including posting my request and referring it to the (purported) IRP. They have also failed to responsd to any of my repeated, specific, requests under the transparency Bylaws for documents, records and information related to their claims to have implemented the Bylaws:

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

http://forum.icann.org/alac-forum/msg00254.html

ICANN's Senior Counsel claimed to me more than six months ago that there exists an agreement or agreements between ICANN and the purported IRP, and promised to provide me with that agreement or agreements. I still have not received it.

The Board of Directors still has not held any publicly-disclosed discussion or taken any publicly-disclosed action on my request for a stay pending Independent Review.

My requests for Independent Review and stay remain pending. If there has been any discussion or action at all on my requests, it has been in secret, despite my specific requests for the "maximum extent feasible" of notice and opportunity to observe or audit any such meetings, and for copies of any related documents or records.

In summary, ICANN has clearly violated the provisions of its Bylaws on transparency (particularly the "maximum extent feasible" clause) and accountability (including the Bylaws for the Ombudsman, Reconsideration, and Independent Review).

None of these issues is addressed in the One World Trust report. They need to be addressed by ICANN itself, and by those responsible for oversight of ICANN including the Secretary of State of California and the U.S. Department of Commerce.

Sincerely,

Edward Hasbrouck

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



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