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Re: [ga] Failure to implement Bylaws

  • To: Joe Baptista <baptista@xxxxxxxxxxxxxx>, Edward Hasbrouck <edward@xxxxxxxxxxxxx>, board-review-tor@xxxxxxxxx, rod_beckstrom@xxxxxxxxx
  • Subject: Re: [ga] Failure to implement Bylaws
  • From: "Jeffrey A. Williams" <jwkckid1@xxxxxxxxxxxxx>
  • Date: Fri, 25 Sep 2009 15:17:23 -0500 (GMT-05:00)

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<P>Dr. Joe, Ed, and all,</P>
<P>&nbsp; Indeed Ed has mad so very pointed, largely accurate and important 
points.&nbsp; As such</P>
<P>they leave the impression at a minimum of poor leadership on the part of 
ICANN Staff,</P>
<P>and a failure of good checks by the ICANN Board accordingly.&nbsp; These 
<P>however have been duely reported to the ICANN Board review by myself and 
<P>on more than on occasion seemingly without garnering the attention they 
2px solid">-----Original Message----- <BR>From: Joe Baptista 
<BAPTISTA@xxxxxxxxxxxxxx><BR>Sent: Sep 25, 2009 12:44 PM <BR>To: Edward 
Hasbrouck <EDWARD@xxxxxxxxxxxxx><BR>Cc: iic-proposed-bylaws@xxxxxxxxx, 
na-discuss@xxxxxxxxxxxxxxxxxxxxxxx, ga@xxxxxxxxxxxxxx <BR>Subject: Re: [ga] 
Failure to implement Bylaws <BR><BR>you have made some excellent 
<DIV class=gmail_quote>On Thu, Sep 24, 2009 at 9:50 PM, Edward Hasbrouck <SPAN 
dir=ltr>&lt;<A href="mailto:edward@xxxxxxxxxxxxx"; 
target=_blank>edward@xxxxxxxxxxxxx</A>&gt;</SPAN> wrote:<BR>
<BLOCKQUOTE class=gmail_quote style="PADDING-LEFT: 1ex; MARGIN: 0pt 0pt 0pt 
0.8ex; BORDER-LEFT: rgb(204,204,204) 1px solid"><BR>ICANN has requested 
comments by tomorrow, 25 September 2009, on proposed<BR>revisions to the ICANN 
Bylaws for "Independent Review" of ICANN decisions:<BR><BR><A 
 fundamental problem with ICANN's current Bylaws for independent review<BR>is 
that those bylaws have never been properly implemented, and that --<BR>despite 
multiple requests for independent review of ICANN decisions -- 
no<BR>independent review comporting with either the present or the 
previous<BR>independent review Bylaws has ever been 
conducted.<BR><BR>(According to a cursory statement on the ICMRegistry.Com Web 
site, some<BR>sort of "hearing" is being conducted in Washington this week in 
response<BR>to ICM Registry's request for independent review of an ICANN 
decision.<BR>However, whatever is happening in that matter is not in accordance 
with<BR>ICANN's Bylaws on independent review. &nbsp;First, the proceedings are 
not<BR>being conducted with the maximum extent feasible of transparency, 
as<BR>required by the Bylaws. Second, the independent review provider and 
its<BR>procedures &nbsp;were not determined by ICANN in accordance with the 
procedural<BR>rules of ICANN's bylaws for such policy decisions. &nbsp;Instead, 
ICANN appears<BR>to have chosen the independent review provider and allowed it 
to determine<BR>procedures -- which procedures themselves do not comport with 
ICANN's<BR>Bylaws on transparency -- through completely improper secret, ex 
parte<BR>negotiations with the potential independent review provider 
while<BR>independent review requests with other parties were already 
pending.)<BR><BR>Changing the bylaws on independent review will accomplish 
nothing unless<BR>those bylaws are actually implemented (in accordance with, 
inter alia, the<BR>other provisions of the Bylaws with respect to policy 
development and<BR>decision-making procedures and transparency). &nbsp;ICANN 
has done nothing to<BR>give reason for any confidence whatsoever that ICANN 
will actually<BR>implement any accountability mechanisms, current or 
revised.<BR><BR>As I have noted repeatedly in previous comments to ICANN, ICANN 
has failed<BR>to implement any of the three accountability mechanisms required 
by its<BR>current Bylaws. &nbsp;ICANN's Board of Directors has never held a 
publicly<BR>disclosed vote to appoint or reappoint an Ombudsman. The 
Reconsideration<BR>Committee of the Board of Directors has made decisions 
which, by its own<BR>declaration, were based on matters not permitted to be a 
basis for such<BR>decisions. And ICANN has never conducted a policy development 
process to<BR>designate an independent review provider or develop or approve 
procedures<BR>for independent review, just as it never appointed the members of 
the<BR>independent review body provided for by its previous Bylaws.<BR><BR>(I 
also note that the ICANN's request for comments is materially false 
and<BR>misleading in its claim that, "ICANN has an Independent Review Process 
in<BR>place, as established at Article IV, Section 3 (1) of the bylaws". 
&nbsp;ICANN<BR>does not, in fact, have any process in place that has been 
established in<BR>accordance with ICANN's accountability and transparency 
Bylaws.)<BR><BR>ICANN has knowingly and wilfully persisted in this failure, in 
flagrant<BR>violation of its own Bylaws. Members of ICANN's Board of Directors 
have<BR>tolerated this ongoing and flagrant violation of the Bylaws. 
&nbsp;Given<BR>ICANN's failure to establish any other means of accountability, 
the only<BR>remaining mechanisms for calling ICANN to account are for the 
United<BR>States Department of Commerce to revoke its contracts with ICANN 
for<BR>breach of contract (in that ICANN has made contractual commitments to 
the<BR>DOC to observe its Bylaws on accountability), and for the State 
of<BR>California to revoke ICANN's corporate charter for persistent failure 
to<BR>operate in accordance with its Bylaws, as required by that 
charter.<BR><BR>Requests for independent review made under both the previous 
and present<BR>independent review Bylaws remain pending and have not been acted 
on by<BR>ICANN. The proposed revised independent review Bylaws are silent on 
what<BR>action, if any, will ever be taken on these outstanding 
requests.<BR><BR>Rather than revise the independent review Bylaws yet again, 
ICANN should<BR>implement its existing Bylaws on accountability, including 
independent<BR>review, by (1) appointing an Ombudsman, (2)compelling the 
Reconsideration<BR>Committee to act in accordance with the Bylaws in new cases 
and to<BR>properly reconsider those cases previous decided on impermissible 
grounds,<BR>and (3) designating an Independent Review Provider, developing 
procedures<BR>for independent review, and considering the backlog of 
outstanding<BR>requests for independent review, all in accordance with the 
procedural<BR>rules in the Bylaws for such decisions and actions, and the 
general<BR>mandate of the Bylaws for the maximum extent feasible of 
transparency in<BR>the operations of ICANN and its subsidiary 
bodies.<BR><BR>Sincerely,<BR><BR>Edward Hasbrouck<BR><FONT color=#888888><BR><A 
href="mailto:edward@xxxxxxxxxxxxx"; target=_blank>edward@xxxxxxxxxxxxx</A><BR><A 
<P><BR><BR clear=all><BR>-- <BR>Joe Baptista<BR><BR><A 
 future of the Internet is Open, Transparent, Inclusive, Representative &amp; 
Accountable to the Internet community 
 +1 (360) 526-6077 (extension 052)<BR>&nbsp; &nbsp; Fax: +1 (509) 
479-0084<BR><BR>Personal: <A href="http://www.joebaptista.wordpress.com"; 
<P>Regards,<BR><BR>Jeffrey A. Williams<BR>Spokesman for INEGroup LLA. - (Over 
294k members/stakeholders strong!)<BR>"Obedience of the law is the greatest 
freedom" -<BR>&nbsp;&nbsp; Abraham Lincoln<BR><BR>"Credit should go with the 
performance of duty and not with what is very<BR>often the accident of glory" - 
Theodore Roosevelt<BR><BR>"If the probability be called P; the injury, L; and 
the burden, B; liability<BR>depends upon whether B is less than L multiplied 
by<BR>P: i.e., whether B is less than PL."<BR>United States v. Carroll 
Towing&nbsp; (159 F.2d 169 [2d Cir. 
 1/26/04<BR>CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS. 
div. of<BR>Information Network Eng.&nbsp; INEG. INC.<BR>ABA member in good 
standing member ID 01257402 E-Mail jwkckid1@xxxxxxxxxxxxx<BR>Phone: 

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