Message from John Jeffrey to Edward Hasbrouck
From: John Jeffrey
Sent: Thursday, May 12, 2005 4:08 PM
To: Edward Hasbrouck
Subject: Formal Response to your Complaints
Dear Mr. Hasbrouck,
This message is in response to numerous emails you sent to ICANN Board and staff members during and after ICANN's recent public meetings in Mar del Plata, Argentina, 4-8 April 2005 and emails and various other forms of communications on this topic since that time. We have also been advised by ICANN’s Ombudsman regarding his efforts to understand and respond to your complaints, and have worked to provide information to the Ombudsman that we are aware has been provided to you during this time.
We would like to again formally acknowledge receipt of your messages, and to let you know that your comments have been received and considered by ICANN's Board and staff. We understand that you personally are opposed to ICANN's proposed delegation of .TRAVEL, (as you were to the delegation of .AERO several years ago http://www.icann.org/committees/reconsideration/rc01-7.htm) but as you are aware, ICANN's Board has decided to approve the application for a new top-level domain in accordance with its approved procedures after having publicly acknowledged that the board had considered your personal objections.
The process and criteria for this new round of sTLD introductions were developed publicly. Your comments were taken into account both in the development of the process and in the evaluation. To date, ICANN has determined that five applicants – .CAT, .JOBS, MOBI, .POST, and .TRAVEL – have met the baseline criteria. We ask you to take a fair reading of the record available on the ICANN website, which will indicate that ICANN's efforts to create new Internet top-level domains including .TRAVEL have been exceptionally "open and transparent." The following is just a summary of the public process that has led to this week's consideration of a concrete proposal for the implementation of a new .TRAVEL TLD intended to serve the needs of the international travel industry:
The current round of introduction of new sponsored top-level domains was launched on 15 December 2003 <http://www.icann.org/announcements/announcement-15dec03.htm>. On that date ICANN posted an open request for proposals for any interested party to apply for the delegation of a new top-level domain <http://www.icann.org/tlds/new-stld-rfp/new-stld-application-parta-15dec03.htm>
The publicly-posted RFP, including a full description of the selection process and criteria was posted at <http://www.icann.org/tlds/new-stld-rfp/new-stld-application-parta-15dec03.htm>. ICANN also posted its criteria for the selection of the panel of independent technical, financial and other experts that were responsible for reviewing the applications against the posted criteria <http://www.icann.org/tlds/new-stld-rfp/panel.htm>.
The RFP was developed openly and with full public participation, including a lengthy public comment period for review of a draft version of the RFP <http://forum.icann.org/mtg-cmts/stld-rfp-comments/general/ index.html>. The RFP was also the subject of open public webcasted meetings in 2003 in Montreal <http://www.icann.org/montreal/> and Tunisia <http://www.icann.org/carthage/>.
On 19 March 2004, ICANN announced that it had received ten applications for sTLDs, including .ASIA, .CAT, .JOBS, .MAIL, .MOBI, .POST, .TEL (2 applications), .TRAVEL, and .XXX. ICANN posted the non-confidential portions of the applications for public review and comment <http://www.icann.org/announcements/announcement-19mar04.htm>. The .TRAVEL application is available for review at <http://www.icann.org/tlds/stld-apps-19mar04/travel.htm>.
A public archive of the dozens of email comments ICANN received on the TRAVEL application is available at <http://forum.icann.org/lists/stld-rfp-travel/>. Also, some .TRAVEL- related comments are available in the general public comment archive at <http://forum.icann.org/lists/stld-rfp-general/>.
At its teleconference on 18 October 2004, ICANN's Board adopted two resolutions concerning the .TRAVEL application, authorizing the President and General Counsel to enter negotiations relating to proposed commercial and technical terms with the applicant, and requesting the President to present the negotiated agreement to the Board for approval and authorization <http://www.icann.org/minutes/resolutions-18oct04.htm>. Notice of that Board action was posted several weeks in advance of ICANN's meetings in Cape Town in December 2004, and the sTLD process was the subject of a presentation and public discussion at that open meeting. Transcripts and a video of the live webcast of that meeting are available at <http://www.icann.org/meetings/capetown/>.
On 24 March 2005, ICANN posted an announcement reporting that negotiations with the applicants for the .JOBS and .TRAVEL sponsored top-level domains were completed. The .JOBS and .TRAVEL sponsored TLD registry agreements were posted on the ICANN website and submitted to the ICANN Board for approval <http://www.icann.org/announcements/announcement-24mar05.htm>. ICANN's next Board meeting was scheduled for Friday, 8 April 2005, in Mar del Plata, Argentina. You complained that the posting of the proposed .JOBS and .TRAVEL agreements fifteen days before the Board meeting failed to meet the deadline in ICANN Bylaws Article III, §6 <http://www.icann.org/general/bylaws.htm#III-6>, but that 21-day notice requirement applies only to actions that will create binding new generally-applicable ICANN "policies", not to operational actions such as the approval or amendment of bilateral contracts. (ICANN gave you this same answer when you raised this same issue in your request for reconsideration submitted in 2001 opposing the delegation of .AERO; see ICANN RR 01-7 <http://www.icann.org/committees/reconsideration/rc01-7.htm>.)
On Sunday, 3 April 2005, the final agenda of the 8 April 2005 Board meeting was posted <http://www.icann.org/minutes/>. While ICANN strives to post details of the agenda of Board meetings as far in advance as practicable, in this case the shape of the agenda was not finalized and posted until Sunday, 3 April 2005 (five days before the meeting) due to last-minute travel and discussions before the meeting. That posting was in compliance with the Bylaws, which state that the agenda for any Board meeting should be posted seven days before a meeting OR "as far in advance as is practicable." You have complained that this two-day (from Friday, April 1, to Sunday, April 3) delay in posting the agenda prevented you from being able to attend the April 8th Board meeting in person, but even if that is true and the 24 March 2005 posting was insufficient to compel you to attend the Board meeting in person, it is not clear how this could have prejudiced you. You had already had the opportunity, which you took, to have the substance of your comments raised and considered in previous round of open public comment. Further, your eight pages of new and re-submitted comments were received and entered into the record <http://www.icann.org/meetings/mardelplata/captioning-public-forum-2-07apr05.htm> of the open public forum on 7 April 2005, and have been posted in full on the ICANN website <http://www.icann.org/correspondence/hasbrouck-to-icann-07apr05.htm>, with a hyperlink from the point in the public forum transcript when Vint Cerf discusses your comments. Extending this courtesy and attention to you was somewhat unprecedented; ordinarily participants in ICANN public forums submit brief statements or questions, not extended remarks such as you submitted. Video and audio of the entire public forum on 6 7 April 2005 and the Board meeting on 8 April 2005 were webcast live on the Internet, and a transcript was posted within hours of each session <http://www.icann.org/meetings/mardelplata/>.
While the above procedures meet every reasonable definition of "open and transparent", you have also complained because ICANN did not grant your request to allow you to personally monitor all of the evaluation work and the negotiations with the applicant. While it might arguably have been "possible" to have granted your request to monitor the sTLD evaluations and negotiations, we do not believe it would have been "feasible." Some portions of the sTLD applications, including proprietary financial and technical information submitted by the applicants, were kept confidential by ICANN and the evaluators (in compliance with the announced procedures). While ICANN does strive for openness and transparency, the Bylaws do expressly acknowledge that there will be exceptions in order to accommodate feasibility and fairness.
ICANN Bylaws Article III, §1 states 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." One issue your correspondence has highlighted is the need for ICANN to develop "procedures" for access to data that ensure privacy and confidentiality where appropriate and required to ensure fairness; establishing such procedures will require time and the considered input of concerned Internet community members such as you. We believe that it is a well understood principle of fairness that data that has been submitted with a reasonable expectation of confidential treatment should not be released to third-parties without the express consent of the submitting party. ICANN has posted the complete text of the .JOBS and .TRAVEL agreements, but we believe that both feasibility and fairness required us to conduct the evaluation of the applications (which included confidential and proprietary applicant business and technical information) and the negotiation of the agreements with the applicants privately and bilaterally.
Based on the above, we understand that you have a particular and long-standing concern about the allocation of domain names related to travel, but we question whether you personally have been "materially affected" by ICANN's decision to delegate either .AERO or .TRAVEL. The use of the .TRAVEL (and .AERO) TLD will be completely optional. If you are not satisfied with the policies of the proposed sponsor of the TLD, you are free to not use or register in that domain. We understand that you have indicated a desire to seek independent review of the ICANN Board's decision to approve the delegation of .TRAVEL. Under ICANN's Bylaws independent review is available to persons that are "materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws." In order to assist in the preparation of an appropriate response, could you please describe why you believe that you were personally "materially affected" by the delegation of .TRAVEL? Also, please confirm that you understand that the party not prevailing in an independent review proceeding is ordinarily responsible for bearing all the costs of the independent review provider, including the fees and expenses of the arbitrators.
Thank you again for your concern and interest. Please provide any response in writing if you have any questions or comments regarding the above, or if you feel that we have failed to respond to your previously addressed concerns..
John O. Jeffrey