[governance] oversight

[Edward Hasbrouck]

I think it is meaningless to create new ICANN rules for oversight, if 
ICANN can continue to ignore those rules.

ICANN's bylaws require that "ICANN and its constituent bodies shall 
operate to the maximum extent feasible in an open and transparent manner". 
But most ICANN meetings and documents are secret -- even when it would be 
feasible to make them public, and even when there is a specific request by 
a stakeholder to make them public.

There are only 4 mechanisms currently available (in theory) for oversight 
of ICANN's actions, if ICANN does not follow its own rules:

(1) A request for independent review under Article 4, section 3 of ICANN's 
bylaws.  ICANN is required to have procedures in place for independent 
review, and to refer such requests to an IRP, and to give the IRP 
authority to recommend a stay pending independent review.

More than 6 months ago, I made a formal request for independent review of 
the lack of openness and transparency in ICANN's decision-making process 
on ".travel", including the holding of closed meetings and the withholding 
of specific documents and meeting records which I had requested and which 
could feasibly have been released.  I also requested a stay of the 
".travel" decision, pending this review by an IRP:

http://hasbrouck.org/icann

ICANN has taken no (publicly disclosed) action on these requests, but has 
allowed ".travel" to be added to the root and registrations launched.

What mechanism is there to force ICANN to comply with its bylaws?  And how 
would ICANN's ability to ignore its own rules change under any new system?

(2) The Attorney General or Secretary of State could initiate legal action 
to revoke ICANN's corporate charter for failure to operate in accordance 
with its charter, its bylaws, and/or California law.  ICANN has flouted 
its bylaws, but California authorities have taken no action.

(3) The USA Department of Commerce could revoke the MOU for breach of 
contract by ICANN.  But while ICANN has clearly failed to carry out many 
of the commitments in the MOU (inncluding the commitment to provide a 
mechanism for independent review), the DOC has taken no action.

(4) Other parties (individuals, corporations, governments) could "route 
around" ICANN by acting independently, e.g. by establishing alternative 
roots.  This seems to be the only oversight mechanism that doesn't depend 
on voluntary cooperation by ICANN and/or the USA government.

We cannot relay on ICANN to police itself.  ICANN has clearly demonstrated 
that it will ignore laws, rules, and oversight procedures unless actually 
forced to do so.  Any new oversight mechanism should specify how it will 
actually be *enforced*, through what channel ICANN will be forced to 
comply, or how it will be put into effect even if ICANN ignores it.  
 
I would welcome any assistance in getting ICANN to act on my requests for 
independent review and stay, and in calling attention to ICANN's failure 
to do so, in violation of its bylaws, the MOU, and its claims to provide 
adequate oversight mechanisms that obviate the need for new oversight.

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


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