From: "Edward Hasbrouck" <edward@hasbrouck.org>
To: <DNSTransition@ntia.doc.gov>
Date: Fri, Jul 7, 2006 4:59 PM
Subject: Comments on DNS Transition, Docket No. 060519136-6136-01

Comments of Edward Hasbrouck on DNS Transition

NTIA Docket No. 060519136-6136-01

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In Docket No. 060519136-6136-01 (71 Federal Register 30388-30389, 26 may
2006), NTIA has requested comments on "the progress to date of the
transition of the technical coordination and management of the Internet
DNS to the private sector," specifically to ICANN.

NTIA has asked for comments on the following specific (but not limiting)
questions, among others:

"2.... Has ICANN achieved sufficient progress in its tasks, as agreed in
the MOU, for the transition to take place by September 30, 2006?

"3. Are these core tasks and milestones still relevant to facilitate this
transition and meet the goals outlined in the DNS White Paper and the U.S.
Principles on the Internet's Domain Name and Addressing System? Should
new or revised tasks/methods be considered in order for the transition to
occur?

"4. The DNS White Paper listed several key stakeholder groups whose
meaningful participation is necessary for effective technical coordination
and management of the Internet DNS. Are all of these groups involved
effectively in the ICANN process? If not, how could their involvement be
improved?"

I am a journalist and consumer advocate, much of whose writing has been
published on the Internet, and whose "beat" and one of whose books ("The
Practical Nomad Guide to the Online Travel Marketplace", Avalon Travel
Publishing, 2000) have focused on topics specific to the Internet and its
use by consumers.

As a journalist, I have attempted to hold ICANN to its purported
commitment to the maximum extent feasible of openness and transparency,
through requests for documents and other records and through requests for
notice of, and the opportunity to observe or audit, meetings of ICANN and
its subsidiary bodies.

When these requests have been ignored or denied, I have attempted to hold
ICANN to its commitment to due process, accountability, and oversight,
through requests in different incidents for reconsideration and for
independent review of the lack of openness and transparency of ICANN's
decision-making procedures. Those requests have also been ignored.

I have thus been the person who has attempted most systematically and
diligently to exercise the procedural, transparency, and oversight rights
purportedly guaranteed by ICANN's corporate bylaws and the commitments in
ICANN's Memorandum of Understanding with NTIA.

My unsuccessful attempts to exercise the rights purportedly guaranteed by
the openness, transparency, and oversight provisions of ICANN's bylaws are
chronicled at:

http://hasbrouck.org/icann/

To summarize my experience, and the conclusions I draw from it:

I requested access to documents and records, and notice and opportunity to
attend, observe, or audit meetings of ICANN and subsidiary bodies related
to ICANN's consideration of the proposed ".travel" sTLD. Those requests
were ignored. Many of the documents and records I requested have never
been released, others were relased after months of delay, and meetings
were closed and held with little or no notice and no opportunity for
journalists, the public, or other stakeholders to attend, observe, or
audit them.

I requested independent review of the lack of openness and transparency in
the decisions made on "travel". So far as I know, no action has been
taken on that request, which was made well more than a year ago on 8 April
2005:

http://hasbrouck.org/blog/archives/000554.html

Many months after receiving my request for independent review, ICANN
claimed to have designated an independent review provider. But ICANN has
not responded to any of my questions concerning this purported decision:

http://hasbrouck.org/blog/archives/000964.html#ICDR

When I contacted the organization ICANN claimed to have designated as its
independent review provider, they told me they had never heard of ICANN
and had no procedures applicable to review of decisions by ICANN:

http://hasbrouck.org/blog/archives/001051.html

Neither my request for independent review nor any other such requests, nor
any procedures fo independent review or designation of an indpendent
review provider, have been posted on ICANN's Web site:

http://www.icann.org/committees/indreview

And none of the procedures applicable to the adoption of policies and
precdures for independent review, or the designation of an independent
revirew provider, have been complied with by ICANN:

http://hasbrouck.org/blog/archives/001007.html#procedures

My experience, and ICANN's (lack of) action on my requests, shows that
contrary to ICANN's claims:

(1) ICANN and its constituent bodies do not, in fact, operate to the
maximum extent feasible in an opmne and transparent manner.

(2) ICANN has not, in fact, put in place or allowed to operate any
effective mechanism for oversight or accountability for decision-making or
procedural due process within ICANN itself.

(3) ICANN has not, in fact, put in place or allowed to operate any
mechanism for oversight, accountability, or review of ICANN's decision-
making or procedural due process by any body external to or independent of
ICANN.

I submit to NTIA that the effective involvement of all stakeholder groups,
particularly consumers and other members of the public, is impossible
without openness and transparency, and cannot be guaranteed without
accountability and oversight -- all of whihc are lacking in the present
operation of ICANN and its subsidiary bodies.

And the involvement of all stakeholders could best be improved, within the
present system, by bringing ICANN into compliance with the requirements of
ICANN's own bylaws for openness, transparency, accountability, and
oversight.

The implementation of effective mechanisms to ensure the maximum extent
feasible of openness and transparency in ICANN's decision- making
procedures, as well as of effective independent oversight of ICANN's
compliance with its Bylaws and other commitements, should be included in
the milestones required by NTIA for any transition of DNS management.

In light of ICANN's repeated, false, claims that it is already operating
in an open and transparent manner (and persistently ignoring the
implications or even the existence of the words "to the maximum extent
feasible"), and to be in the process of working towards an independent
review procedure that still doesn;t exist, NTIA should not be satisfied
with a mere repetition by ICANN of its repeatedly-broken promises, but
should require that the maximum extent feasible of openness and
transparency, and mechanism for independent oversight, be demonstrated in
actual and effective operation.

Amendment 6 to the MOU between ICANN and NTIA provides in part that "ICANN
agrees to ... 4. Continue to develop, to test, and to implement
accountability mechanisms to address claims by members of the Internet
community that they have been adversely affected by decisions in conflict
with ICANN's by-laws, contractual obligations, or otherwise treated
unfairly in the context of ICANN processes."

http://www.ntia.doc.gov/ntiahome/domainname/agreements/amendment6_09162003.
htm

This condition of the MOU has not been met, and ICANN's continuing failure
to take even the first step towards doing so (such as scheduling and
giving public notice of public meeting to consider ebgining the process of
developing policies and procedures for independent review, and to
designate an indpendent review provider) is a material breach of ICANN's
contractual commitment to NTIA. I demand that NTIA take prompt action to
compel ICANN to cure this breach of contract, or to terminate NTIA's
contracts with ICANN for breach of contract by ICANN.

ICANN's lack of openness and transparency is not limited to decisions made
directly by ICANN itself. ICANN can delegate only that authority which
ICANN possesses. Any valid delegation of authority by ICANN is therefore
subject to the requirements of ICANN's bylaws that "ICANN and its
constituent bodies shall operate to the maximum extent feasible in an open
and transparent manner and consistent with procedures designed to ensure
fairness." But there has been essentially no recognition of this
principle in ICANN's decisions purporting to delegate authority, and no
explicit condition in any publicly-disclosed delegation of authority by
ICANN binding the decision-maker, as a decision- making agent of ICANN, to
comply with the "maximum extent feasible" clause of ICANN's transparency
bylaw.

Instead, ICANN has used the contracting out of key decisions as a means
(albeit a legally invalid one contrary to its bylaws) to evade even that
slight degree of transparency (limited in most cases to ex post facto
publication of resolutions and votes) which it has acknowledged as
applying to decisions made directly by ICANN's Board of Directors.

Some of ICANN's most important decisions have been delegated to
contractors or third parties who have not acted, and have not been
required by ICANN to act, in accordance with the procedural requirements
of ICANN's bylaws. Despite the requirements of ICANN's bylaws, no
effective mechanisms for reconsideration, independent review, or oversight
by NTIA (or any other oversight body external to ICANN) have in fact been
made available to journalists or stakeholders affected by their inability
to observe or participate in the deliberations and decision-making of
those third parties deriving their purported authority from delegations by
ICANN.

For example, the task of reviewing and making recommendations on the most
recent round of applications for new TLD's was delegated to a panel of
"independent" evaluators whose identities and recommendations were kept
secret until after ICANN's Board of Directors had received and acted on
those recommendations, and who met entirely in secret. My requests as a
journalist and stakeholder for notice of their appointment, identities,
and meetings, and for an opportunity to observe or audit their meetings,
were simply ignored. No minutes or records of their meetings have ever
been made public. Since their reports were received and acted on by
ICANN's Board of Directors at closed telephone "meetings", it is
impossible to know why some of their recommendations on specific new TLD
applications were adopted by the Board of Directors, and some were
reversed.

As a journalist and stakeholder, I have requested that the closure of
ICANN Board telephone "meetings" be reconsidered, but that request -- made
more than a year ago in May 2005 -- has been ignored except for an
acknowledgement from ICANN's corporate secretary that it was received and
forwarded to ICANN's Reconsideration Committee. Although ICANN's bylaws
require that all requests for reconsideration be posted on ICANN's Web
site, that they be acted on within 90 days, and that the Reconsideration
Committee report annually on the requests it has received, the actions it
has taken on them, and the requests remaining outstanding, none of those
things has yet been done with my request (or any others made during 2005),
nor have I received any indication as to when, if ever, my request will be
considered or acted on by the Committee or the Board.

The Committee on Reconsideration of ICANN's Board of Directors is clearly
a "subsidiary body" of ICANN subject to the requirement of ICANN's bylaws
that kit operate with the maximum extent feasible of transparency. But
the Reconsideration Committee has never held a public meeting. Nor has it
ever given public notice of when it will meet, or the agenda for or
attendees at any of its meetings. My requests for notice of meetings of
the Reconsideration Committee, and for an for an opportunity to observe
or audit their meetings, have been ignored.

Similarly, the "authority" to set policy for sponsored. TLD's has been
(purportedly) delegated by ICANN to the entities designated by ICANN as
sponsors. None of the publicly-disclosed portions of the contracts
between ICANN and these sponsors contains any explicit acknowledgement
that the purported delegation of authority by ICANN created a relationship
in which the sponsor acts as agent for ICANN as the principal, or that the
authority of the sponsor as agent for ICANN is limited by any of the
limitations on ICANN's own authority. None of the publicly portions of
these agreements contains any explicit requirement of the "maximum extent
feasible" of transparency in the exercise by the sponsor of decision-
making authority delegated by ICANN, and none of the sponsors appears to
have recognized any such requirement or limitation.

ICANN's habitual failure to comply with the procedural requirements of its
own corporate charter and bylaws creates two risks, each of with endangers
(to the extent that any aspect of ICANN's decision-making can endanger)
the stability and security of the Internet:

First, almost all individual decisions which ICANN has made are vulnerable
to challenge and nullification as not having been made in accordance with
the procedures, the openness and transparency, and the availability of
independent review required by ICANN's bylaws, and the requirement of its
corporate charter that ICANN act only in accordance with those bylaws.

Second, ICANN's chronic failure to comply with its own bylaws, and its
habit of taking action and making purported "decisions" contrary to those
bylaws, provides sufficient ongoing cause for the Secretary of State of
California, as overseer of compliance with ICANN's corporate charter, to
dissolve the corporation at any time for ICANN's failure to act in
accordance with its charter from the state of California.

In considering whether NTIA should to terminate its oversight over ICANN,
and whether it is appropriate for NTIA to delegate authority to ICANN,
NTIA should consider the continuing threat to the stability and security
of the Internet posed by ICANN's vulnerability to dissolution as a
corporation, and to nullification of many of its key decisions -- a risk
entirely of ICANN's own creation, resulting from ICANN's failure to comply
with the procedural standards to which it has bound itself in its bylaws,
and to which it is bound by its charter from the state of California as a
public-benefit non-profit corporation.

I would be happy to discuss these comments further at your public meeting
in Washington on 26 July 2006.

Sincerely,

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