Request to the ICANN Board of Directors
Request for action by members of the ICANN Board of Directors
2. The delegation
of authority in the draft .aero agreement would violate ICANN's bylaws.
confidentiality restrictions in the .aero agreement would violate ICANN's bylaws.
The process used to draft the .aero agreement violates ICANN's bylaws
5. The "opt-out"
or "without objection" approval process for the .aero agreement would violate ICANN's
1. REQUEST FOR ACTION BY MEMBERS OF THE
ICANN BOARD OF DIRECTORS
Last week I asked you, as members of the ICANN Board of
Directors, to request that the draft agreement for sponsorship by SITA of a proposed
".aero" global top-level domain (gTLD) *not* be approved. My request was based
on the policy implications of the portions of the draft agreement which were posted
for comment 9 November 2001 to the ICANN Web site, specifically Attachments 1 and
5 My earlier request is available at http://hasbrouck.org/icann/aero-draft.html.
am writing to you again to call your attention to additional reasons not to approve
the draft .aero sponsorship agreement. These additional -- and much more fundamental
-- objections relate to the remaining portions of the draft agreement which
were posted between 10 November 2001 and 20 November 2001.
While my earlier message
concerned policy reasons why you
*should not* approve the draft .aero agreement,
the most recently posted sections of the draft agreement indicate reasons why you
*must not* approve the .aero agreement.
Approval of the .aero sponsorship agreement
in its current form, under your current procedures, would be contrary to ICANN's
bylaws, for the reasons detailed below. Accordingly, I reiterate my request to each
of you individually, as a member of the ICANN Board of Directors, that, within 7
days (i.e. by 27 November 2001), you request that the President of ICANN not sign
the draft .aero agreement.
It's not clear whether, or how, such a request for non-approval
of the draft from a member of the Board of Directors would be made public.
If any of you have already made such a request, I thank you for your action.
If you have not, I look forward to your prompt attention to your obligation in this
matter, within the 7-day comment and request for non-approval deadline.
DELEGATION OF AUTHORITY IN THE DRAFT .AERO AGREEMENT WOULD VIOLATE ICANN'S BYLAWS.
2 of the draft .aero sponsorship agreement -- the last section to be posted, on 20
November 2001 -- is a delegation of decision-making authority by ICANN to SITA over
ICANN can't delegate authority that ICANN doesn't have. And ICANN's own decision-making
authority is limited by Article 3 of ICANN's bylaws, which provides as follows: "The
Corporation and its subordinate entities shall operate to the maximum extent feasible
in an open and transparent manner and consistent with procedures designed to ensure
In order to be valid, any
delegation of authority by ICANN must, therefore, include conditions requiring openness,
transparency, and procedures to ensure fairness in the exercise of delegated authority.
A purported delegation of authority lacking such conditions would be invalid as delegating
more authority than ICANN itself possesses under its own bylaws.
of authority by ICANN to SITA in the draft .aero agreement lacks any openness, transparency,
or procedural fairness conditions. The draft agreement thus exceeds ICANN's
authority, and cannot be approved without violating ICANN's bylaws.
It is this
issue of openness, transparency, procedural fairness, and at-large participation
in delegated decision-making that is central to my earlier recommendations to the
ICANN AT- Large Study Committee at http://hasbrouck.org/icann/alsc.html.
could evade the requirements of Article 3 of its bylaws by delegating authority to
a body that operated in secret, that would render Article 3 of the bylaws meaningless.
And it is a fundamental principle of legal interpretation that a document should
be interpreted in such a manner as to give meaning to each of its terms.
be argued, in the alternative, that the gTLD sponsorship agreement would make SITA
a "subordinate entity" of ICANN, and thus implicitly subject to the openness, transparency,
and fairness requirements of Article 3 of the ICANN bylaws. If that interpretation
were adopted, however, any delegation of authority by ICANN to SITA's application
would have to be rejected for noncompliance by SITA with those bylaw requirements
in SITA's conduct to date in drafting the .aero agreement and in formulating policies
3. THE CONFIDENTIALITY RESTRICTIONS IN THE DRAFT .AERO AGREEMENT WOULD
VIOLATE ICANN'S BYLAWS.
Attachment 21 of the draft .aero sponsorship agreement,
concerning "proof of concept" reports, contains the following provision: "The reports
provided by Sponsor as described in this Attachment shall be subject to confidentiality
restrictions according to categories described in Section 11." The categories
on Section 11 of Attachment 21 provide restrictions on release of information by
ICANN for as much as 18 months after it is reported to ICANN. http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att21-10nov01.htm
noted above, ICANN's bylaws require that ICANN and its subordinate entities "operate
to the maximum extent feasible in an open and transparent manner and consistent with
procedures designed to ensure fairness." Restrictions on public disclosure
information by ICANN can only be justified by a showing that disclosure is not feasible,
even judged according to standards of maximum feasibility.
No rationale whatsoever
is given in the draft .aero agreement as to why it would not be "feasible" for this
information to be publicly disclosed immediately, or in less than the specified time
periods, by ICANN and/or SITA. Nor, to the best of my knowledge, has SITA or
ICANN made public such a rationale in any other forum. Absent a showing of lack of
feasibility, the confidentiality restrictions are, on their face, contrary to ICANN's
bylaws, and cannot be approved.
It should also be noted that possible impairment
of SITA's commercial interests by early public disclosure of the "proof of concept"
information should have no bearing on a determination of whether disclosure is "feasible".
In any event, SITA stressed as one of the reasons its application for sponsorship
should be granted that SITA is a not-for-profit entity with no commercial interest
in the proposed .aero gTLD.
SITA was aware of the openness, transparency,
and procedural fairness requirements of ICANN's bylaws when SITA submitted its sponsorship
application. If SITA was unwilling to accept those conditions, and wanted to
operate under confidentiality restrictions, it shouldn't have applied, and its application
shouldn't have been accepted. As ICANN has repeatedly reminded other would-be gTLD
sponsors, those who weren't willing to accept ICANN's conditions for gTLD sponsorship
didn't have to apply. That should apply equally to the transparency and fairness
conditions that ICANN is required by its bylaws to include in all delegations of
4. THE PROCESS USED TO DRAFT THE .AERO AGREEMENT VIOLATES ICANN'S BYLAWS.
reiterate, ICANN's bylaws require that ICANN and its subordinate entities "operate
to the maximum extent feasible in an open and transparent manner and consistent with
procedures designed to ensure fairness."
Contrary to this requirement, the negotiations
between ICANN and SITA, and the drafting of the .aero sponsorship agreement, have
been conducted in a closed manner lacking procedures to ensure fairness.
has been no public notice of negotiating or drafting sessions, and there has been
no opportunity for stakeholders or community members to observe the process, much
I formally requested information on opportunities to observe
and/or participate in the policy formulation process -- as a stakeholder and member
of the Air Transport Community and the .aero constituency -- from SITA through the
form provided on SITA's Web site for this purpose at http://www.sita.int/aero/info/reqinfo.asp.
In response, I was told by SITA, "We shall communicate the... details of registration
policies... in due time and we shall inform you directly once the launch date for
the Registry Operation and Registration Services has been confirmed." http://hasbrouck.org/icann/sita.html
indication was given as to why it would not be "feasible" to provide more information,
or opportunities for openness to all stakeholders and community members, prior to
the setting of the launch date for the .aero gTLD. Absent a showing that this was
not feasible, the failure to provide this openness and transparency is a violation
of ICANN's bylaws.
ICANN also told me that "The exact definition of the individuals
or entities qualifying for registration and related policies are currently being
developed in close co-operation with representatives from various industry bodies
including IATA, ACI and ICAO." As I have detailed here and in my earlier comments,
the airline industry is only a small subset of the air transport community which
was defined as the .aero constituency in SITA's original proposal. SITA's procedures
provide for participation only by the industry -- one specific interest group amongst
many stakeholders in the .aero constituency -- while excluding stakeholders from
other interest groups in the constituency. This fails to satisfy the
requirement of ICANN's bylaws for "procedures designed to ensure fairness," especially
fairness in balancing the interests of the airline industry and other, non-industry,
members of the community.
5. The "opt-out" or "without objection" approval process
for the .aero agreement would violate ICANN's bylaws.
ICANN Resolutions 01.83-01.85
established the following "opt-out" or "without objection" process for approval of
the .aero sponsorship agreement by the ICANN Board of Directors:
and General Counsel are authorized and requested to complete negotiation of the .aero
and .coop agreements (including attachments) as soon as feasible and to post the
attachments on the ICANN web site; ... the Board shall be notified of the complete
posting of the agreement and appendices for each of .aero and .coop and after that
notification seven days shall be allowed for Board members to make any additional
comments to the President and General Counsel; ... in the absence of the request
of any Board member to the contrary based on policy considerations, the President
is authorized to sign the posted agreements for .aero and .coop after the conclusion
of those seven days."
Article 3, section 3 (b) of ICANN's bylaws requires as follows:
"With respect to
any policies that are being considered by the Board for adoption that substantially
affect ... third parties ... the
Board will: ... iii) hold a public forum at which
the proposed policy would be discussed." http://www.icann.org/general/bylaws.htm#III-3b
the "without objection" approval process does not include a public forum for discussion
of the draft agreement, that procedure is permissible only for policies that do not
substantially affect the interests of any third parties.
The draft .aero agreement
would substantially affect the interests of, among others, those members of the air
transport community (as defined as the .aero constituency in the SITA proposal accepted
by ICANN as the basis for negotiation of the .aero agreement) but excluded from eligibility
for .aero registration and/or participation under the draft agreement. These
affected parties include, among others:
1. Users and purchasers of air transport
A. Airline passengers and their organizations
cargo shippers and their organizations
2. Elements of civil society concerned with
air transport, including:
A. Air transport consumer advocates and organizations
Air transport safety and security advocates and organizations
concerned with the environmental impact of air transport
D. Organizations of
airport neighbors concerned with aircraft noise
E. Organizations concerned with
land use planning for airports
F. Organizations concerned with the impact of
air transport industry practices on civil liberties
3. Critics of the air transport
A. Muckrakers, investigators, and gadflies outside the industry
Whistleblowers, critics, and advocates for change from within the industry
Other at-large stakeholders
Travel agents and sellers of air travel are implicitly
included in the ".aero Charter" (Attachment 1) and the "Description of the Sponsored
TLD Community" (Attachment 5) as people or entities which "perform the necessary
transactions to transport people and cargo by air." But they are excluded from
the "Start-Up Plan" (Attachment 8, posted 17 November 2001). http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att8-17nov01.htm
explanation has been provided for this differential treatment of travel agents vis-à-vis
other segments of the air transport industry. Whatever the reason, the decision
to exclude travel agents from the Start-Up Plan, and thus from registration and participation
in .aero during the start-up period, affects the interests of:
1. Air travel agencies
Independent air travel agents
3. Sellers of air travel other than agents of airlines
Sellers of bundled travel services that include air transport, such as air-inclusive
The "Registry Operator's Proposal" that was part of SITA's original application
for .aero estimated that there would be from 94,288 (pessimistic) to 259,360 (optimistic)
.aero name registrations.
the much smaller numbers of other types of (large) companies identified in the proposal,
it's likely that these numbers of domain name registrations could only be achieved
if a large percentage of them came from travel agencies and agents.
total number of potential .aero registrants might be, it's clear that the vast majority
of .aero stakeholders and members of the .aero constituency, as defined in the original
.aero proposal, would be excluded from .aero registration and participation under
the draft agreement.
All the people and organizations outlined above had every
reason to expect, based on the plain language of SITA's original proposal, that they
would be eligible to register .aero names as part of "the Air Transport Community...
defined as all companies and organizations for which the main activity is related
to Air Transport". Their first notice that they were to be excluded from registration
and/or participation in .aero came with the posting of the draft .aero agreement,
on which there has been no public hearing.
Since the draft .aero agreement would
substantially affect third parties, ICANN bylaw's require a public forum before it
can be approved. In the absence of such a forum, any purported approval by the Board
of Directors through the "without objection" process, or by the President through
signing of a purported contract, would be in violation of ICANN's bylaws, and invalid.
all these reasons, and those in my prior recommendations to the ICANN Board of Directors
and the At-Large Study Committee, I urge you promptly to request that the draft .aero
sponsorship agreement with SITA not be approved, and schedule a proper public forum
on this issue at your next (Accra) or a subsequent meeting.
Passenger air travel
and travel e-commerce consumer advocate,
author, and FAQ-maintainer
of the Air Transport Community and the ".aero"