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

["Jeffrey A. Williams" <jwkckid1@xxxxxxxxxxxxx>]

Ed and all,

  Thank you Ed.  I don't know why the NTIA is so slow...
Maybe it's the UN rub off effect?

Edward Hasbrouck wrote:

> 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
>
> ----- End forwarded message -----

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