Email from Edward Hasbrouck to ICANN
From: Edward Hasbrouck
Subject: Requests related to ".travel"
Date: 07 April, 2005 1:39 AM
I request that these comments, in their entirety, be entered into the record of the public comment forum for this meeting of ICANN's Board of Directors, and be posted on the ICANN Web site.
My comments are somewhat long and legalistic. This is because my previous informal requests have been ignored, and because the ICANN Board of Directors is contemplating action tomorrow which would violate numerous provisions of ICANN's own rules.
My specific requests mostly concern the procedures that ICANN has followed in considering the ".travel" applications. That is because the substantive issues are not yet ripe for decision, and will not be ripe for decision until the record is made public.
But before I begin to talk about these procedural issues, let me explain briefly why I care about the substance of the proposed ".travel" agreement, under which decision-making authority over a new region of the Internet namespace dedicated to travel would be delegated by ICANN to a closed group representing, at best, only the interests of the "travel industry".
There is an industry associated with providing services to travellers, but travel is not an industry. I am a travel journalist, and I work in the travel industry, because I believe in the importance of travel as an activity and an aspect of life.
Most stakeholders in the use of the Internet for travel are travellers who use the Internet to post their travel stories and photographs, to research and obtain information about travel (which they generally prefer to receive from fellow travellers or from other sources independent of the travel industry), and for reserving and purchasing travel services.
There is no consensus of travellers, or of consumers of travel services, that the Internet travel namespace should be dominated by industrial uses, that the best protectors of their interests would be the companies that make up the travel industry, or that the travel industry is capable of self-regulation.
On the contrary, most travellers would prefer more regulation of the travel industry by government, more scrutiny of the travel industry by independent consumer protection organizations, and more aggressive investigative reporting about the travel industry by travel journalists.
The Bylaws of the Travel Partnership Corporation provide that only 1 board member out of 25 will represent "Travel Related Consumer Organizations". No one on the TPC board would represent travellers in any capacity except that of consumers.
Airlines -- the real parties behind this application -- have perhaps the least credibility and the worst reputation with consumers and travellers of any sector of the travel industry.
There are many different opinions as to how best to a accredit travel companies, and how best to protect and advance travellers' interests. But there is certainly no *consensus*, especially not on a proposal like this one to hand over control to industry.
If you claim that there is a consensus of stakeholders in support of the proposed ".travel" agreement, you will be lying.
If you claim that this proposal is the outcome of a bottom-up consensus development process, you will be lying.
If you claim that the series of closed meetings without public notice, at which documents were reviewed that have not been made public, through which the proposed agreement was considered, evaluated, and negotiated, was conducted "to the maximum extent feasible in an open and transparent manner", you will be lying.
So far as I can tell, ICANN has completely ignored the plain meaning of the words "maximum extent feasible" in its Bylaws.
My fundamental request to you is to stop ignoring those words in the Bylaws, and start using them as your guiding principle.
It doesn't matter if there has been *some* openness. ICANN's Bylaws require the "maximum extent feasible" of openness.
The "maximum extent feasible of openness and transparency" might be inconvenient for some people, and embarrassing to other people. Making decisions that way might be slower, and might result in different decisions. None of those are reasons not to comply with the Bylaws, or not to have such a Bylaw.
Indeed, it is because an open decision-making process produces different decisions from a closed process that openness is so important. That's why violations of openness and transparency requirements are inherently violations of stakeholders' rights.
I am raising these issues in this forum because I have received no response at all to my 3 specific e-mail messages sent to ICANN during the last week, as copied below and included in this message. (I did receive a message from Mr. Cerf confirming that at least some of my messages were received and forwarded to the ICANN Board.) I am raising these issues by e-mail because the agenda for this meeting was not posted until less than a week ago, too late for me to attend in person.
Last Sunday night, when the proposed agenda for tomorrow's Board meeting was posted on the ICANN Web site, I learned that the board proposed to consider approval of an agreement for the creation and delegation of authority over a "travel" sTLD.
I have requested that the record of meetings and documents considered by ICANN throughout its consideration of the ".travel" applications be made public. I have requested that this item be removed from the agenda of tomorrow's meeting, and that you not take any action to approve any ".travel" agreement until (1) the records I have requested have been made public, to the maximum extent feasible, (2) a bottom-up consensus development process has been conducted, to the maximum extent feasible in an open and transparent manner, and (3) the proposed policies and the reasons why they are being proposed have been published for 21 days for public comment, and placed on the agenda at least seven days in advance of a Board meeting which is conducted to the maximum extent feasible in and open and transparent manner. When ICANN announced a press conference in conjunction with this meeting, I requested an opportunity to participate.
I have received no response to any of these three requests.
None of the documents I requested in the message below have been provided to me or posted on the ICANN Web site.
Consideration of approval of a ".travel" agreement remains on the posted agenda for tomorrow's Board meeting.
And the press conference was held without me.
If my requests were made on short notice, that is entirely ICANN's own fault for giving such little and delayed notice of its past and proposed actions, and for failing to honor my prior and explicit request to exercise my right, under ICANN's bylaws, to notice of meetings to consider this issue.
I reiterate my request (1) that you respond to the questions that I would have asked, had I been permitted to participate, at your press conference, (2) that you make public the documents and records I have requested, (3) that you begin an open and transparent bottom-up process of developing consensus on "travel", and (4) that you remove any consideration of approval of a ".travel" agreement from your agenda for tomorrow's meeting.
In light of the importance of this issue, I request (although I know this is not a right) that a recorded vote be taken by the Board of Directors on the inclusion of this item on the agenda, or on whether consideration of such an agreement is in order.
If the Board decides, either by vote, by unanimous consent, or otherwise, to approve an agenda including approval of a ".travel" agreement, or actually takes up (and finds to be in order) such an agreement, I request, in accordance with Article 4, Section 3 of the ICANN Bylaws, that the decision to consider such an agreement at tomorrow's meeting be referred to an independent review panel charged with comparing this contested action of the Board to the Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Bylaws.
I would be materially affected as a ".travel" stakeholder and as an Internet travel journalist by this decision, and I assert that consideration of a "travel" agreement tomorrow would be inconsistent with ICANN's bylaws in that, (1) it was not included in an agenda posted 7 days before the meeting (2) it was not posted for 21 days for public comment, (3) no statement at all of *why* it is being proposed has been posted, and (4) ICANN and its constituent bodies have not operated to the maximum extent feasible in an open and transparent manner in formulating, evaluating, and negotiating the proposed agreement.
I also request a stay of any action on a ".travel agreement by ICANN's Board, staff, or other ICANN bodies, until such time as the Board reviews and acts upon the opinion of the independent review panel. Article 4, Section 3(8)(c) of the Bylaws requires that "The IRP shall have the authority to" recommend such a stay.
The IRP would have no meaningful authority to recommend a stay if the decision had already been carried out, before the IRP could consider recommending a stay. Accordingly, I believe it would be contrary to the Bylaws, and deprive the IRP of this authority, for ICANN to take action on such a decision before the IRP can consider this request for a recommendation for a stay.
It's necessary for me to make this request in advance because it might not be possible to make such a request in the short time between a decision by the Board and action that would make it difficult to undo the consequences of that decision.
I reiterate my request for notice, as far in advance and in as much detail as is known, of the time, place, and manner of any meetings to be held by ICANN or any of its constituent bodies, and for copies of any documents, related to ".travel", to my requests, or to policies for independent review of ICANN actions.
I look forward to the opening of the record on ".travel", and to the opportunity to participate as a ".travel" stakeholder, and to report on as an Internet travel journalist, a new bottom-up consensus development process on ".travel" that is conducted "to the maximum extent feasible" in an open and transparent manner.
My 3 previous pending requests are as follows:
From: Edward Hasbrouck <edward@xxxxx>
Subject: Request for documents, etc. related to ".travel"
Date: Sun, 03 Apr 2005 15:22:19 -0800
This is a request of you, in your capacity as secretary of ICANN, pursuant to Article III, Section 1 of ICANN's Bylaws: "ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner."
Since the usual method for ICANN to release documents is through posting on the ICANN.org web site, I initially searched the Web site, and then made a request to the ICANN Webmaster. However, it has been suggested to me that you may be the custodian of these records, and/or the person responsible for releasing them.
In my comments in the public forum for comment on the new ".travel" application, I included an explicit request, as an interested stakeholder and as the journalist who has been most closely covering the issue, for notice of any meetings held by ICANN or by an "independent review panel" chosen by ICANN to evaluate the ".travel" applications:
To date, I have received no response to this request, and have been able to find no such notice on the ICANN Web site.
Even if those meetings were for some reason closed, it would have been feasible to identify the independent evaluators and to give notice of their meetings. Without notice of any particular meeting, it is impossible for would-be observers to determine what the "maximum extent feasible" of openness might be.
The minutes of the "Special Meeting of the Board (18 October 2004)", as posted 3 March 2005, <http://www.icann.org/minutes/minutes-18oct04.htm>, record that, "members of the Board reviewed, commented and actively discussed ... the report of the independent review panel on the sponsorship application [and] the response by the applicant to the independent review panel's report."
And according to a notice posted 24 March 2005 at <http://www.icann.org/announcements/announcement-24mar05.htm>, "ICANN has completed negotiations with the applicants for the .JOBS and .TRAVEL sponsored top-level domains."
Please provide me, or tell me where I can find on the ICANN Web site, each of the following:
(1) Any notice(s) of the meeting(s) of the independent review panel on the ".travel" sponsorship application(s).
(2) Any minutes, transcripts, recordings, and/or participant and/or attendee lists of those meetings.
(3) Any documents that were reviewed or discussed in those meetings.
(4) The report of the independent review panel on the ".travel" sponsorship application(s), as discussed (according to the minutes) by ICANN's Board on 18 October 2004.
(5) The applicant(s)s' response to that report, as also discussed by ICANN's Board on 18 October 2004.
(6) Any transcripts or recordings of the Board teleconference on 18 October 2004.
(7) Any notice(s) of the negotiations with the ".travel" applicants.
(8) Any minutes, transcripts, recordings, and/or participant and/or attendee lists of those negotiations.
(9) Any documents that were reviewed or discussed in those negotiations.
I presume that it is feasible to provide copies of these documents, and accordingly, that you are obligated by ICANN's bylaws to do so. ICANN is required by its bylaws to operate in a fishbowl, and anyone submitting documents to ICANN (in this case, ICANN's own independent evaluators, operating under contract to ICANN, and an applicant for the delegation of authority from ICANN -- which authority, should it be delegated, would have to be exercised in accordance with ICANN's bylaws including the maximum extent feasible of openness and transparency) should know that.
It wasn't (and still isn't) clear whether these meetings were conducted in person, by telephone, or by other means. But without notice of the time, place, and manner of these meetings, it is impossible to determine what the "maximum extent feasible" of openness and transparency would have been. Had I received such notice, I would have considered observing in person at my own expense, or attempting to raise funds from sources outside ICANN to permit personal attendance. Webcasting would certainly have been feasible for telephonic meetings. Obviously, documents or electronic exchanges could feasibly have been made available electronically. Other mechanisms might also have been feasible, but lack of notice precludes even the attempt to exercise the rights guaranteed by the "maximum extent feasible" bylaw clause on transparency and openness.
It appears now that meetings were held (by whom, when, where, and by what means unknown) by an "independent evaluation panel". They prepared and submitted a report (secret) to ICANN's Board. The applicants prepared and submitted responses (secret). ICANN's Board held a closed "meeting" by telephone (not actually a valid meeting within the meaning of the bylaws, since it clearly would have been feasible to Webcast it, but it was not Webcast) at which a decision was made, after review of these secret documents (and perhaps other as yet unknown ones), to authorize "negotiations" (by whom, we do not know) with the applicants.
Had I known of these negotiating meetings, or of the meetings of the independent review panel, I would have requested and would have been entitled to observe them, to the maximum extent feasible.
This proposed decision to authorize negotiations was not posted publicly for 21 days or subject to a public forum; the Board "meeting" notice referred only to a status report, and didn't mention any proposed decision. The existence of the report of the independent evaluators and the response from the applicants was only made known on 3 March 2005 with the posting of the minutes. Apparently (secret) negotiations have in fact been conducted, since a proposed agreement has now been posted. Less than 21 days, I should note, before the Mar del Plata meeting, the agenda for which has yet to be posted less than 7 days in advance, but which I fear may nonetheless attempt to actually make a decision on this proposed agreement -- on the basis of these secret meetings and documents.
Each of these constitutes a violation of the requirement of the bylaws for the "maximum extent feasible" of openness and transparency. And such a secret, top-down decision-making process constitutes a violation of ICANN's contractual commitment to the USA Department of Commerce to make decisions through a bottom-up consensus-development process.
Accordingly, without prejudice to my request for these documents (which I am requesting independently of what may be planned or transpire at Mar del Plata), I request that you advise the Board, as their secretary, that objection has been made to the process already conducted for independent review of the ".travel" applications, Board consideration of and action on this issue, and negotiations with the applicant(s), as failing to comply with the requirement of the bylaws for the "maximum extent feasible" of openness and transparency, or with ICANN's contractual commitment to the USA Department of Commerce for a bottom-up consensus development process.
To preserve my rights, I also request that I be given notice, to the maximum extent feasible (even it is ICANN's intent to hold a closed meeting), as far in advance as feasible, of the time, place, and manner of any meetings by ICANNN or any constituent bodies related to the ".travel" applications), and that I be provided with copies of any documents discussed in any such meetings
I also specifically request that you advise me whether you are aware of any intention by ICANN's Board to consider any resolution concerning ".travel" at Mar del Plata. Had such notice been included in an agenda posted seven days prior to the meeting in accordance with ICANN's bylaws, I would have been in attendance. My rights as a ".travel" stakeholder and as a journalist will be infringed if any such measure is discussed without proper notice and/or without public access to all of the documents considered by the Board and forming party of the basis for any decision.
Since this request concerns my rights as a journalist as well as a ".travel" stakeholder, I am copying it to "firstname.lastname@example.org". There is no point of conduct designated on ICANN's Web site for requests for documents or for other requests to exercise rights under the "maximum extent feasible" of openness and transparency, as required by the bylaws. It might facilitate the making and handling of such requests were ICANN to designate a "transparency officer" responsible for responding to such requests, or at least an e-mail address to use for them.
From: Edward Hasbrouck <edward@xxxxx>
Subject: proposed ICANN action contrary to bylaws
Cc: email@example.com, firstname.lastname@example.org
Date: Sun, 03 Apr 2005 20:41:09 -0800
I am writing to you as members of the ICANN Board of Directors.
(I have been unable to find a contact address for the Board as a whole on the ICANN Web site. I have addressed this message to all those Board members for whom I have found e-mail addresses on the ICANN Web site. I am also addressing this message to Mr. John Jeffrey in his capacity as Secretary to the Board, with the request that he forward it to all members of the Board, since I have no other way to contact them all. Since this also concerns the rights of journalists and the rights of the public to participate in ICANN decision-making, I am also forwarding it to the "General Manager, Communications and Public Participation".)
Tonight, 3 April 2005, an agenda for your planned meeting Friday, 8 April 2005 was posted to the "minutes" section of the ICANN Web site. This agenda includes the "Proposed sTLD Agreement for .TRAVEL".
Article III, Section 4 of ICANN's Bylaw's provides that, "At least seven days in advance of each Board meeting (or if not practicable, as far in advance as is practicable), a notice of such meeting and, to the extent known, an agenda for the meeting shall be posted."
This agenda was posted less than 7 days before the proposed meeting. The agenda was *not* accompanied by any claim that it was not known 7 days in advance that this item would be considered at this meeting, or that it would not have been practicable to post this item of the agenda at least 7 days before the meeting.
In addition, Article III, Section 6 of the Bylaws requires without exception that, "With respect to any policies that are being considered by the Board for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges, ICANN shall: a. provide public notice on the Website explaining what policies are being considered for adoption and why, at least twenty- one days (and if practical, earlier) prior to any action by the Board."
The first portions of the proposed agreement were posted on the ICANN web site 24 March 2005 (15 days before the Board meeting). Appendix A of the proposed ".travel" agreement was posted 2 April 2005 (6 days before the meeting).
In addition, it was revealed in the minutes of the Board's 18 October 2005 meeting (which minutes were not posted or made public until 3 March 2005), and with the posting of the proposed ".travel" agreement, that there have been numerous meetings of ICANN and various of its constituent bodies, and that numerous documents have been considered by the Board and by other ICANN bodies, for which the "maximum extent feasible" of openness and transparency, as required by Article III, Section 1 of the Bylaws, has not been provided. I have already detailed these concerns to Mr. Jeffrey as Secretary to the Board, with the request that he forward them to you.
Had such notice been included in an agenda posted seven days prior to the meeting in accordance with ICANN's Bylaws, I would have been in attendance in Mar del Plata. My rights as a ".travel" stakeholder and as the journalist who has been giving the most detailed investigative coverage to ".travel" will be infringed if any such measure is discussed without proper notice and/or without public access to all of the documents considered by the Board and forming part of the basis for any decision.
Accordingly, for all of these reasons, it will be a violation of ICANN's Bylaws for you to consider this agenda item at your meeting 8 April 2005. Such action would also be a violation of your individual duty as Directors to comply with the Bylaws. And it would be a material breach of ICANN's contractual commitment in its Memorandum of Understanding with the USA department of Commerce to determine policies through a bottom-up consensus- development process, sufficient to warrant revocation of that MOU.
I urge you to make public the complete record of ICANN's past meetings on ".travel", including all documents reviewed and considered by ICANN or its constituent bodies to date, and to start over with a bottom-up process of consideration of ".travel" in which travellers, journalists, and other stakeholders are given "the maximum extent feasible" of openness and transparency, including notice of meetings and the opportunity to observe them, so that Tralliance, TTPC, TheGlobe.com/Voiceglo, and IATA, and the relationships and agreements between all of them, can be subjected to public comment and scrutiny, to see if any consensus emerges as to whether any of them should be delegated authority over ".travel".
Should you wish to discuss this, you can reach me by e-mail or by phone in San Francisco at +1-415-824-0214. My own articles on this topic are at:
From: Edward Hasbrouck <edward@xxxxx>
Subject: Questions for ICANN press conference
Date: Tue, 05 Apr 2005 13:52:12 -0700 Yesterday ICANN's Web site announced:
"A teleconference press conference is scheduled for 12:00-13:00 (local time) on Tuesday, 5 April. Participation details are available upon request."
I immediately responded to "email@example.com", "Please send information on how I can participate in the telephone press conference on Tuesday, as mentioned on the ICANN Web site."
My message was sent at 10:29 San Francisco time (14:29 Mar del Plata time), Monday, 4 April 2005. I have received no response to this request, nothing further has appeared on the ICANN web site about the press conference, and -- being 10,000 kilometers away -- I can't tell if the press conference was held, much less who was allowed to participate or what was said.
This is a serious violation of ICANN's Bylaws, and a serious infringement of my rights as a journalist (as well as a stakeholder in ".travel") and the rights of my readers who have been following the ongoing ".travel" scandal through my reporting over the last four years.
If the press conference was held, and if a recording, transcript, and/or record of attendees and/or participants was made, I request copies of these and request that they be posted on the ICANN Web site. I also request that I and any others who were not given an opportunity to participate be given another opportunity, at the earliest possible time, for a telephone conference to question those who participated in the original press conference.My questions are as below, and are also on my Web site at:
1. When did ICANN learn of the 25 February 2003 purchase option agreement between Tralliance Corp. and TheGlobe.com/Voicego (details still secret), the 24 February 2004 agreement between Tralliance and the Travel Partnership Corp., TTPC ("Appendix A" to the proposed ICANN-Tralliance ".travel" agreement), and the 22 October 2002 memorandum of understanding between TTPC and IATA (details still secret) mentioned in that "Appendix A" ? Specifically, were these 3 agreements reviewed by the ICANN Board of Directors before or during their 18 October 2004 conference call?
2. In light of the fact that the latest TTPC financial statement shows that as of 31 December 2004 TTPC was insolvent , and that revenues from TTPC's proposed share of Tralliance/TheGlobe.com/Voiceglo's proposed share of ".travel" registration fees will not commence until after the start of ".travel" registration, does ICANN know who will actually absorb TTPC's start-up costs of formulating ".travel" policies? What, if any, mechanisms are proposed to ensure that TTPC would not be a financial captive of those financial backers, subject to having funding cut off and being forced to shut down for lack of money if TTPC were to adopt policies counter to their interests?
3. The proposed ICANN-Tralliance agreement provides that, "Registry [i.e. Tralliance] may assign this Agreement as part of the transfer of its registry business if such transfer and assignment are approved in advance by ICANN in accordance with its procedures." Has such a request been made to ICANN in relation to the contemplated sale of Tralliance to TheGlobe.com/Voiceglo? Has ICANN begun the process of developing a consensus on the criteria and procedures that should be used to evaluate such a request?
Since this concerns a breaking news story of critical importance prior to the Board's possible consideration of this issue on Friday, I look forward to your prompt reply.