ICANN Continues to Stonewall on Independent Review
posted by michael on Sunday February 05 2006, @05:27PM
I have often disagreed with ICANN's actions, especially when it comes to artificially restricting the supply of TLDs. Usually, though, I think I understand why ICANN is doing what it's doing given its professed objectives, or given the economic interests of the trademark lobby. It's very rare that I think ICANN's tactics are totally nuts given what I take to be its aims. Sub-optimal, sure, all the time. Totally whacko, almost never. Thus, for example, Board squatting, morally wrong as it was, made perfect tactical sense if you didn't care about keeping promises and were trying to make sure that the 'wrong' people were shut out of the Board, and the insiders kept control. In the event, after all, it largely worked.
The last time I thought ICANN's Board and staff had gone completely mad -- taken actions that could only hurt even their own aims in the end -- was when they clearly violated California law and sought to deny documents to one of their own directors. I even tried to tell Vint Cerf at the time that his advisers were doing him wrong, to no avail.
Well, Mr. Cerf, I'm here to tell you again that someone in the ICANN organization is doing something so boneheaded in its treatment of Ed Hasbrouck's request for a fair hearing that it can only hurt you, whatever it is you are trying to accomplish.
Here's just a sample of Hasbrouck's latest missive to ICANN:
You refer to "ICANN's standing agreement to have your concerns
reviewed by an arbitrator". But you also say that my request for
independent review -- received by you 5 April 2006, 10 months ago today
-- "does not meet the guidelines required by the ICDR procedures and consequently cannot be considered a formal IRP sufficient to forward to the ICDR."
There are at least three problems with your argument:
First, the "sufficiency" of a request for independent review should be determined solely by the independent review panel, not by ICANN. ICANN's obligation under its Bylaws to refer such a request to an IRP is not discretionary or conditional on ICANN's opinion of its "sufficiency".
Second, I said in my original request for independent review that, "I reserve the right to make additional written submissions to the IRP once
the policies and procedures for independent review have been
determined." I remain willing to comply with any applicable and
duly-adopted policies for independent review.
In order to be able to satisfy any such procedural requirements, I have repeatedly requested copies of any ICANN policies and procedures for independent review, including any agreement(s) between ICANN and any provider(s) of independent review services.
You have ignored these requests, which I reiterate.
Third, you refer to "the policies of the International Centre for Dispute resolution, which ICANN has designated to provide independent review services in accordance with its Bylaws."
But you ignore the portion of my message to you of 11 December 2005 in which I explain in detail that, despite my diligent search of the ICANN Web site, and my repeated unanswered requests to you for copies of any IRP agreement(s), I have been unable to find any record that ICANN has, in fact, "designated" the ICDR -- or anyone else -- as the IRP, or adopted any policies or procedures for independent review, "in accordance with its Bylaws".
ICANN's Web page on independent review policies
states, correctly, "New bylaws went into effect on 15 December 2002
that call for a different independent review procedure." But that Web
page contains no indication that ICANN has designated an IRP or adopted any policies or procedures for independent review:
To the best of my knowledge and belief, after diligent research and repeated, unanswered, requests to ICANN for any agreements(s) between ICANN and independent review provider(s), ICANN has not designated an IRP or adopted any policies or procedures for independent review, in accordance with the procedures required by ICANN's Bylaws for making such policy decisions.
There's more-- And don't miss the follow-up post by Ed Hasbrouck:
My e-mail message earlier today to ICANN got an uncharacteristically prompt, but characteristically unresponsive, reply just two hours later from ICANN's General Counsel and Corporate Secretary John O. Jeffrey, giving me a two-day deadline (after 10 months of delay) and continuing to mis-state my requests while completely ignoring all of the specific requests I have actually made (including for copies of ICANN records, for copies of ICANN independent review procedures if there are any, for copies of any agreements between ICANN and independent review providers, for ICANN's Board of Directors to consider my request for a stay pending independent review, and for ICANN to begin the process required by its Bylaws to properly designate an independent review provider and develop procedures for independent review).
The good news is that ICANN now seems, perhaps, to actually be willing to submit to some sort of arbitration. (I can't call it "independent" arbitration: Mr. Jeffrey has ignored my requests for copies of any pre-existing agreements between ICANN and potential arbitration providers. And his message below suggests that ICANN is having secret side discussions with a potential arbitration provider concerning the procedures to be followed.)
The bad news is that Mr. Jeffrey appears willing to refer the issue of ICANN's lack of openness and transparency to an arbitrator only if he and ICANN are allowed to make up the rules as they go along, in secret, and to impose both rules of their choice and an arbitration provider of their choice, unilaterally and retroactively, rather than following the procedures required by ICANN's Bylaws for the independent review policy development process.
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