Re: [ga] Failure to implement Bylaws

[Joe Baptista <baptista@xxxxxxxxxxxxxx>]

you have made some excellent points.

cheers
joe

On Thu, Sep 24, 2009 at 9:50 PM, Edward Hasbrouck <edward@xxxxxxxxxxxxx>wrote:

>
> ICANN has requested comments by tomorrow, 25 September 2009, on proposed
> revisions to the ICANN Bylaws for "Independent Review" of ICANN decisions:
>
> http://www.icann.org/en/announcements/announcement-27jul09-en.htm
>
> The fundamental problem with ICANN's current Bylaws for independent review
> is that those bylaws have never been properly implemented, and that --
> despite multiple requests for independent review of ICANN decisions -- no
> independent review comporting with either the present or the previous
> independent review Bylaws has ever been conducted.
>
> (According to a cursory statement on the ICMRegistry.Com Web site, some
> sort of "hearing" is being conducted in Washington this week in response
> to ICM Registry's request for independent review of an ICANN decision.
> However, whatever is happening in that matter is not in accordance with
> ICANN's Bylaws on independent review.  First, the proceedings are not
> being conducted with the maximum extent feasible of transparency, as
> required by the Bylaws. Second, the independent review provider and its
> procedures  were not determined by ICANN in accordance with the procedural
> rules of ICANN's bylaws for such policy decisions.  Instead, ICANN appears
> to have chosen the independent review provider and allowed it to determine
> procedures -- which procedures themselves do not comport with ICANN's
> Bylaws on transparency -- through completely improper secret, ex parte
> negotiations with the potential independent review provider while
> independent review requests with other parties were already pending.)
>
> Changing the bylaws on independent review will accomplish nothing unless
> those bylaws are actually implemented (in accordance with, inter alia, the
> other provisions of the Bylaws with respect to policy development and
> decision-making procedures and transparency).  ICANN has done nothing to
> give reason for any confidence whatsoever that ICANN will actually
> implement any accountability mechanisms, current or revised.
>
> As I have noted repeatedly in previous comments to ICANN, ICANN has failed
> to implement any of the three accountability mechanisms required by its
> current Bylaws.  ICANN's Board of Directors has never held a publicly
> disclosed vote to appoint or reappoint an Ombudsman. The Reconsideration
> Committee of the Board of Directors has made decisions which, by its own
> declaration, were based on matters not permitted to be a basis for such
> decisions. And ICANN has never conducted a policy development process to
> designate an independent review provider or develop or approve procedures
> for independent review, just as it never appointed the members of the
> independent review body provided for by its previous Bylaws.
>
> (I also note that the ICANN's request for comments is materially false and
> misleading in its claim that, "ICANN has an Independent Review Process in
> place, as established at Article IV, Section 3 (1) of the bylaws".  ICANN
> does not, in fact, have any process in place that has been established in
> accordance with ICANN's accountability and transparency Bylaws.)
>
> ICANN has knowingly and wilfully persisted in this failure, in flagrant
> violation of its own Bylaws. Members of ICANN's Board of Directors have
> tolerated this ongoing and flagrant violation of the Bylaws.  Given
> ICANN's failure to establish any other means of accountability, the only
> remaining mechanisms for calling ICANN to account are for the United
> States Department of Commerce to revoke its contracts with ICANN for
> breach of contract (in that ICANN has made contractual commitments to the
> DOC to observe its Bylaws on accountability), and for the State of
> California to revoke ICANN's corporate charter for persistent failure to
> operate in accordance with its Bylaws, as required by that charter.
>
> Requests for independent review made under both the previous and present
> independent review Bylaws remain pending and have not been acted on by
> ICANN. The proposed revised independent review Bylaws are silent on what
> action, if any, will ever be taken on these outstanding requests.
>
> Rather than revise the independent review Bylaws yet again, ICANN should
> implement its existing Bylaws on accountability, including independent
> review, by (1) appointing an Ombudsman, (2)compelling the Reconsideration
> Committee to act in accordance with the Bylaws in new cases and to
> properly reconsider those cases previous decided on impermissible grounds,
> and (3) designating an Independent Review Provider, developing procedures
> for independent review, and considering the backlog of outstanding
> requests for independent review, all in accordance with the procedural
> rules in the Bylaws for such decisions and actions, and the general
> mandate of the Bylaws for the maximum extent feasible of transparency in
> the operations of ICANN and its subsidiary bodies.
>
> Sincerely,
>
> Edward Hasbrouck
>
> edward@xxxxxxxxxxxxx
> http://hasbrouck.org/icann
>
>
>


-- 
Joe Baptista

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