[ga] commetns to NTIA re: Lack of progress or compliance

[Edward Hasbrouck <edward@xxxxxxxxxxxxx>]

I send the comments below to NTIA on 14 February 2007, but they have  
not yet been posted in the comment docket at:
http://www.ntia.doc.gov/ntiahome/domainname/jpamidtermreview.html

In order to ensure that members of the ICANN community are aware of  
the comments I have made to NTIA about ICANN, I am copying them to  
this list.
Edward Hasbrouck

----- Forwarded message from edward@xxxxxxxxxxxxx -----
    Date: Thu, 14 Feb 2008 03:20:03 -0800
    From: Edward Hasbrouck <edward@xxxxxxxxxxxxx>
 Subject: Lack of progress or compliance by ICANN
      To: JPAMidTermReview@xxxxxxxxxxxx

I am an investigative travel journalist and consumer advocate.  One of
my areas of particular expertise and specialization has been the use
of the Internet by travellers and for travel-related purposes, which
is the subject of one of my books: "The Practical Nomad Guide to the
Online Travel Marketplace" (Avalon Travel Publishing, 2001).  As part
of my research and writing on this subject, I have attempted to cover
the travel-related top-level Internet domains (".aero" and ".travel"),
the applications for these TLD's, the policies for these TLD's, and
ICANN's consideration of these issues.

Some of my online reports on these issues, as well as some additional
background information, are archived at:

http://hasbrouck.org/icann

Obviously, my ability (or lack thereof) as a journalist to observe and
report on ICANN decision-making has depended greatly on ICANN's
transparency (or lack thereof).  I have requested to observe meetings
of ICANN and its subsidiary bodies, and I have requests access to
ICANN documents and records.

When my requests have been ignored or denied, or access to meetings,
documents, records, and other information has not been provided, I
have formerly invoked and attempted to pursue -- will all possible
diligence -- each of ICANN's purported accountability mechanisms: an
Ombudsman, Reconsideration (by a committee of ICANN's Board of
Directors), and Independent Review.

I believe that my experience is the most extensive, clearest, and best
documented available case study of ICANN's transparency and
accountability, or the lack thereof, and that I am uniquely qualified
to assess whether ICANN is, in reality, open, transparent, or
accountable.

In my considered, experienced, and expert opinion, ICANN is none of
these things.

I submitted comments on this subject to NTIA during the previous USA
Department of Commerce public inquiry on this topic in 2006.  Those
comments are available at:

http://www.ntia.doc.gov/ntiahome/domainname/dnstransition/comments/dnstrans_comment0600.htm

http://hasbrouck.org/blog/archives/001078.html

http://hasbrouck.org/articles/Hasbrouck_NTIA_comments-7JUL2006.pdf

Those comments continue to describe the situation today, and I reiterate them.

As of today, I can attest that (1) ICANN still does not operate in
accordance with the transparency requirements of its Bylaws and its
commitments on transparency in the Joint Project Agreement with the
USA Department of Commerce, (2) none of ICANN's 3 purported
accountability mechanisms has yet been implemented and allowed to
operate in accordance with ICANN's Bylaws, (3) ICANN has made no
progress towards either transparency or accountability since your last
inquiry on this topic in 2006; on the contrary, ICANN has continued to
move to formalize its lack of transparency and accountability.

With respect to transparency, I have received no further response
whatsoever since my previous comments to any of my outstanding,
unanswered requests to ICANN for documents and records.  Most meetings
of ICANN subsidiary bodies remain closed.  Most "meetings" of ICANN's
Board continue to be conducted by closed teleconference, closed to
auditing or observing, and no recordings or transcripts of those
meetings are disclosed -- even though it would obviously be "feasible"
to allow journalists and the public to audit those meetings, and to
make audio recordings of them public.

ICANN is currently considering a set of of "Accountability and
Transparency Frameworks and Principles" that includes a "Documentary
Information Disclosure Policy".  This draft document makes no mention
of the requirement in ICANN's Bylaws that "ICANN and its constituent
bodies shall operate to the maximum extent feasible in an open and
transparent manner".  Instead, it includes numerous provisions for
withholding of information, even when that information is specifically
requested and when it would be "feasible" to disclose it.

ICANN has ignored comments pointing out the incompatibility of the
draft "Documentary Information Disclosure Policy" with ICANN's Bylaws,
and has made no changes to the original draft to bring it into
compliance with ICANN's Bylaws:

http://forum.icann.org/lists/draft-mop-2007/msg00001.html

http://forum.icann.org/lists/draft-mop-2007/msg00002.html

The draft policy provides that, "If ICANN denies the information
request, it will provide a written statement to the requestor
identifying the reasons for the denial."  I can attest that this draft
policy does not actually describe ICANN's practice to date: I have
still received no response whatsoever to most of my outstanding
unanswered written requests for information from ICANN.

With respect to accountability:

(A) There is still no publicly-disclosed record of any proposal,
consideration, or decision by ICANN's Board of Directors to appoint or
re-appoint an Ombudsman, despite the specific requirement of ICANN's
Bylaws that an Ombudsman must be appointed by the Board (in
accordance, of course, with the general procedural rules in ICANN's
Bylaws for Board decision-making).  ICANN has ignored formal written
comments calling this to their attention:

http://forum.icann.org/lists/transparency-2007/msg00003.html

(B) The Committee on Reconsideration of ICANN's Board of Directors
still has never held a public meeting.  The Committee on
Reconsideration has stated publicly that it has based its (secret)
refusal even to consider one of my requests on information provided in
secret by the person claiming to act as ICANN's Ombudsman -- in
flagrant violation of ICANN's Bylaws, which require that the
Reconsideration Committee base its actions solely on the public
written record:

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

ICANN still has entirely ignored formal written comments calling this
to its attention:

http://forum.icann.org/lists/transparency-2007/msg00003.html

(C) ICANN still has taken no action on my formal written request for
independent review of whether certain ICANN actions and decisions were
made in accordance with ICANN's Bylaws on openness and transparency:

http://hasbrouck.org/blog/archives/000554.html

ICANN still has not responded to any of my requests for specific
information concerning ICANN's designation of an independent review
provider (or lack thereof), development and approval of policies and
procedures for independent review (or lack thereof), and compliance of
any such designation, policies, procedures and policy development and
decision-making process with the procedural, openness, and
transparency requirements of ICANN's Bylaws:

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

http://hasbrouck.org/blog/archives/000964.html#ICDR

ICANN has pointed repeatedly to a report commissioned by ICANN from
One World Trust, "Independent Review of ICANN's Accountability and
Transparency -- Structures and Practices".  ICANN has misleadingly
described this report as though it were based on an "audit" of ICANN's
accountability and transparency.

In fact, this report was not based on an audit.  The report is 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.  The report considers ICANN's accountability and
transparency in general, but makes no attempt to compare ICANN's
actions and practices to the specific requirements of ICANN's Bylaws:

http://forum.icann.org/lists/transparency-2007/msg00003.html

In the Joint Project Agreement and elsewhere, ICANN has promised NTIA
and the USA Department of Commerce that ICANN will operate in
accordance with its Bylaws.  Its failure to do so is a material breach
of contract, as is its failure to fulfill its other commitments in the
JPOA on transparency and accountability.

For all these reasons, I reiterate my specific and formal written
complaint to NTIA of breach of contract by ICANN, and my specific and
formal written request that NTIA initiate an investigation of these
breaches of contract by ICANN and take action to terminate the Joint
Project Agreement with ICANN for breach of contract by ICANN and
failure of ICANN to operate in accordance with its Bylaws.

Sincerely,

Edward Hasbrouck

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

"The Practical Nomad: How to Travel Around the World"
(4th edition 2007)
"The Practical Nomad Guide to the Online Travel Marketplace"
<http://www.practicalnomad.com>

Around-the-World and multi-stop international air tickets:
http://www.airtreks.com/tools/landing.php?ref=EH&dst=MAIN


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