Response to the ICANN General Counsel's analysis of the draft .aero agreement
- Errors in the General Counsel's analysis of the draft .aero agreement
- The scope of .aero in the draft agreement is significantly different from the original proposal.
- The General Counsel's analysis ignores the 'operate to the maximum extent feasible' clause in the bylaws.
- 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
. Mr. Touton's analysis is at .)
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:
- 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.
- 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.
- Passenger air travel and travel e-commerce consumer advocate,
author, and FAQ-maintainer
- Member-at-large of the Air Transport Community and the ".aero"