Why the draft .aero agreement deserves full and public
discussion
(response to the ICANN General Counsel's analysis of the
draft .aero agreement)=======================================================
Contents:
1.
Errors in the General Counsel's analysis of the draft
.aero agreement
2. The
scope of .aero in the draft agreement is
significantly different from the original
proposal.
3. The General Counsel's analysis ignores the 'operate to
the maximum
extent feasible' clause in the bylaws.
4. The draft .aero agreement involves substantial
policy
issues.
=======================================================
1.
ERRORS IN THE GENERAL COUNSEL'S ANALYSIS OF THE DRAFT
.AERO AGREEMENT
On 24
November 2001, ICANN's General Counsel, Mr. Louis
Touton, posted (and provided
to me and to the ICANN Board of
Directors) his analysis of my criticisms of the
draft
agreement between ICANN and SITA for SITA to sponsor a
".aero" global
top-level domain. (My previous comments on
.aero are at http://hasbrouck.org/icann.
Mr. Touton's
analysis is at <http://www.icann.org/tlds/agreements/aero/
report-aero-tld-24nov01.htm>.)
There
isn't time before the 27 November 2001 deadline for
action by members of the Board
for me to respond to all of
Mr. Touton's arguments. Once a member of the
Board objects
to approval of the current draft of the .aero agreement
without
discussion, it can be properly considered, without
undue haste.
I do, however,
want to point out a few of Mr. Touton's most
important errors that relate to whether
the issue deserves a
public forum and full discussion by the Board:
2. THE SCOPE
OF .AERO IN THE DRAFT AGREEMENT IS
SIGNIFICANTLY DIFFERENT FROM THE ORIGINAL PROPOSAL.
.aero
was proposed as "a Top Level Domain for the *entire*
Air Transport Community (ATC)...
In this ... proposal, the
definition of ATC is: '*All* companies and organizations
for
which the main activity is related to Air Transport."
[emphasis added;
the proposal was originally for ".air" but
was selected by ICANN for the alternative
".aero".]
It was clear (at least to those of us in the air transport
community,
but outside the industry, and to those on the
consumer side of the industry) that
throughout the balance
of the proposal SITA used the terms "industry" and
"community"
as though they were interchangeable. And there
was little attention paid
by SITA, as an industry
organization, to how non-industry stakeholders would be
represented.
But
the term "community" as used throughout the proposal
would have to be interpreted
in accordance with the
inclusive definition cited above, and any policies
ultimately
adopted would have to be consistent with this
general policy and charter.
So we were entitled to conclude
that the TLD would include all members of the
community, and
that all such members would be able to participate in
formulating
policies for participation and for governance of
the TLD.
Mr. Touton lists several
sections of the proposal mentioning
industry groups that would be included in
.aero. But the
proposal said that "The ATC includes airlines, aerospace
companies,
airport authorities and governmental
organizations." The proposal did *not*
say, "The ATC
includes *only*" the listed categories of stakeholders. The
lists
appeared to be non-exclusive examples. The
inclusiveness of the definition
of the ATC, as a first
principle governing the interpretation of the rest of the
proposal,
could not have been more explicit and unambiguous.
The inclusiveness of SITA's
proposal, and the pledge that
all members of the community would be able to participate
in
developing policies for the TLD, was a key reason the
proposal was accepted.
There
were 2 TLD proposals from the airline industry: SITA
proposed ".air" and ".aero",
and IATA proposed ".travel".
Airlines and travel agencies (among others) would
have been
included in both. IATA is a trade association of airlines;
SITA is
a cooperative owned by airlines.
The major difference between the SITA and IATA
proposals was
the inclusiveness of SITA's proposal. Lack of inclusiveness
and
representativeness of the broader community of
stakeholders in the relevant sector
of activity was the
major objection to IATA's proposal. Objections to IATA's
proposal
for .travel for lack of representativeness were
raised by public comments and
by ICANN's evaluation team.
IATA's lack of representativeness was cited both by
ICANN's
Board and by the Committee of the Board on Reconsideration
as one of
the major grounds for non-selection of IATA's
proposal for .travel.
If SITA's
proposal for .aero had excluded all stakeholders
except service providers from
registration and/or
participation in the TLD, I and others would have objected
on
the same grounds of lack of representativeness as were
raised against IATA's proposal
for .travel. And it seems
likely that the Board would not have approved
SITA's
proposal unless it included a commitment to inclusiveness in
eligibility
for registration and participation.
3. THE GENERAL COUNSEL'S ANALYSIS IGNORES THE
'OPERATE TO
THE MAXIMUM EXTENT FEASIBLE' CLAUSE IN THE BYLAWS
Mr. Touton claims
that "the openness and transparency
principles ... apply to ICANN's establishment
of policies,
not the drafting of contracts." This is wrong.
First, ICANN"s
bylaws requires that "The Corporation and its
subsidiary bodies shall operate"
openly and transparently.
This use of "operate" is much broader than if the bylaws
said
ICANN must "set policy" openly and transparently, or if
the requirement were limited
to actions of the ICANN Board.
Second, Mr. Touton ignores the clause, "to the maximum
extent
feasible" in the transparency section of ICANN's
bylaws. The only relevant
question is whether a particular
aspect of openness, transparency, or procedural
fairness is
"feasible", judged according to the "maximum extent" of
feasibility.
Whether it is inconvenient or detrimental to
anyone's commercial interest (as
Mr. Touton claims) is,
under the bylaws, irrelevant.
Mr. Touton apparently confuses
"drafting" with
"negotiation"; no reason has been given why it would not be
feasible
to permit observers at negotiating sessions between
ICANN and prospective TLD
sponsors. If observers such as
myself had been permitted at SITA-ICANN negotiations,
there
would be no dispute as to whether SITA wanted and intended
to include
additional categories of participants in .aero,
or whether their exclusion was
at the request of SITA or of
ICANN's staff.
Mr. Touton points out that there
are some transparency
requirements in the draft .aero agreement, and that the
confidentiality
restrictions are limited. These arguments
are, similarly, irrelevant to the standard
set by ICANN's
bylaws: "the maximum extent feasible" of openness and
transparency
in operation.
Mr Touton also claims that provisions for openness *within*
the
(redefined) .aero TLD community satisfy the requirement
for openness in general.
But nothing in the transparency
clause of the bylaws contains, or authorizes,
such a
limitation of the sphere of openness. Any such limitation
would
be contrary to the "maximum extent feasible" clause.
Even within the (redefined)
.aero constituency, however,
SITA has not fulfilled its commitments to openness,
transparency,
and ensuring fairness. According to SITA's
proposal, "SITA is committed
to establishing and maintaining
a high level policy group (the ANPG) to define
the best
manner to ensure that the '.air' TLD is optimized for the
benefit
of the Air Transport Community and the traveling
public. At the same time, this
policy group will ensure that
this domain is ... accessible to all users within
the Air
Transport Community. This group will be comprised of senior
representatives
of the Air Transport Community and will meet
regularly." It was through this group
that .aero policies --
such as those embodied in the agreement now before the
ICANN
Board -- were supposed to be developed.
But this commitment in the proposal
has disappeared entirely
from the draft .aero agreement. As a members of the air
transport
media and the .aero consituency, I specifically
asked ICANN for information about
participating in, and/or
observing meetings of, the ANPG. But the only answer
I got
from SITA was that information on .aero policies would be
provided only
*after* those policies are adopted. If an
"ANPG" or similar policy group
has been formed, it has not
operated openly or transparently, even to people like
me
within the community. And it has not been representative of
me or other
members of the aviation media, the traveling
public, and other segments of the
ATC, as SITA pledged it
would be.
4. THE DRAFT .AERO AGREEMENT INVOLVES SUBSTANTIAL
POLICY
ISSUES.
Mr. Touton claims that the relevant sections of the .aero
agreement
"do not themselves create any new 'policy';
instead they are intended to implement
in legal language the
scope of the .aero TLD that was selected by the ICANN
Board."
Mr
Touton refers extensively to the earlier discussions of
the standard sections
of the sponsorship agreement. But he
ignores that the relevant sections
defining the .aero
charter, eligibility criteria, delegation of authority, and
confidentiality
restrictions are not part of the standard
agreement.
As I've discussed above,
the "scope" of the .aero TLD has
changed materially from the proposal selected
by the Board.
There has been no public discussion whatsoever of that
change,
and no opportunity for such discussion until the
change was revealed with the
posting of the relevant
sections of the draft agreement in recent days.
It is
unfortunate that SITA and ICANN's staff chose to
conduct their negotiating sessions
in secret, and not to
release drafts of the agreement until they considered them
ready
for approval. If they had operated openly, they would
have learned of objections
like mine much sooner. But I
brought this to their attention at the first
opportunity,
within 7 days of the posting of each of the relevant
portions
of the draft.
If SITA and ICANN's staff didn't find out sooner that their
draft
was objectionable to many of those who were defined in
the original .aero proposal
as community members and
stakeholders, that is entirely their own fault. I hope
this
will be a lesson to them for future sponsorship agreement
negotiations.
It's
difficult to take seriously Mr. Touton's claim that
approval of the first, and
admittedly precedent-setting,
agreement for a sponsored TLD for a specific sector
of
economic activity, is not a policy decision. I belive there
is a clear
consensus in the Internet community that the
approval of new TLD's, particularly
including the terms and
conditions for delegating authority over them, is one
of
your most important policy responsibilities. If this isn't a
policy issue,
I don't know what is.
At a minimum, your decision on the draft .aero agreement,
as
currently presented, involves the following substantial
policy questions:
(A)
Will there be TLD's for sectors of activity -- open to
all participants and stakeholders
in those sectors -- or
will sector-specific TLD's be limited to industry entities,
to
the exclusion of consumers, civil-society, and at-large
stakeholders in those
sectors?
If ICANN is concerned about capture of at-large
representation by particular
interest groups, you should be
equally concerned about capture of sector-specific
TLD's by
specific interest group within those sectors, such as
industry.
This danger is most acute in sectors with large
commercial potential. .aero
is not a domain for a small or
non- commercial niche: SITA itself says, correctly,
that air
transportation is the largest segment of e-commerce. As
such,
it is the economic sector where the danger of capture
of a sector-specific domain
by industry or commercial
interests is greatest, and needs to be guarded against
most
carefully.
(B) Will the requirement of ICANN's bylaws for openness,
transparency,
and procedural fairness -- "to the maximum
extent feasible" -- be complied with
in the delegation of
authority to sponsors of sTLD's?
As I've pointed out in
my recommendations to the ALSC, most
ICANN decision-making is already delegated.
And this
question will continue to increase in importance as ICANN
delegates
more and more authority to additional TLD sponsors
and other subsidiary bodies.
There
has been no public forum or discussion by the Board of
either of these policy
questions. The legal validity of any
action taken without a public forum would
be in doubt under
the bylaws. This would make it difficult for either ICANN or
SITA
to proceed on the basis of such a questioned
"agreement". And it this could
create a risk of liability
and expense for both SITA and ICANN. This could easily
be
avoided by holding a public forum and discussion at a future
ICANN Board
meeting, as required by the bylaws.
I supported the SITA proposal for .aero, as
it was
originally made. I remain willing, and reiterate my offer,
to
work with SITA and ICANN's staff and Board, to the extent
my personal finances
permit, to help revise the draft
agreement to represent the full diversity of
the air
transport community (as originally defined) and include
provisions
to ensure compliance with ICANN's mandate that
delegated subsidiary bodies like
sTLD sponsors "operate, to
the maximum extent feasible, in an open and transparent
manner
and consistent with procedures designed to ensure
fairness," particularly fairness
between the interests of
service providers, consumers, and the public at large.
I
believe other stakeholders would also join this consensus-
building process,
were an open invitation extended.
These and other issues raised by .aero are unlikely
to be
resolved by 27 November 2001, which is the deadline for
members of the
ICANN Board to request that the draft .aero
agreement not be approved or signed
without a public forum
and full opportunity for discussion at a future Board
meeting.
Fundamental policy question are not usually
resolved, and a consensus does not
usually develop in a
global community, as quickly as the 7-day comment and
objection
period.
Fortunately, the Board doesn't have to make a decision on
this issue
so quickly. The only issue to be decided right
now is whether the draft
.aero agreement is a "polic[y] ...
being considered by the Board for adoption
that
substantially affect[s] ... third parties." If it is, then
the Board
is required by ICANN's bylaws to "hold a public
forum at which the proposed policy
would be discussed",
concerns such as those I have raised could be addressed,
and
a consensus might emerge.
But in order to comply with that section of the
bylaws, and
to afford the required opportunity for open discussion and
development
of consensus, at least one member of the Board
must request, on or before 27 November
2001, that the draft
.aero agreement not be approved without a public forum.
Edward
Hasbrouck
edward@hasbrouck.org
http://hasbrouck.org
Passenger air travel
and travel e-commerce consumer
advocate, author, and FAQ-maintainer
Member-at-large
of the Air Transport Community and the
".aero" gTLD constituency