ICANN Is Never Wrong - Bret Fausett
ICANN Is Never Wrong:
If you've been following the practical problems of The Practical Nomad in getting an Independent Review out of ICANN, you'll want to read the latest salvo from ICANN's General Counsel. Brief background: At the recent ICANN Public Forum in Vancouver, ICANN's Board Chair Vint Cerf pledged to a patient yet dogged Edward Hasbrouck that "GENERAL COUNSEL IS PREPARED TO PROVIDE YOU WITH THE DETAILS OF HOW TO GO ABOUT THIS PROCEDURE [AN INDEPENDENT REVIEW]."
At the ICANN Board meeting the following day,
ICANN's Counsel read a letter to Mr. Hasbrouck stating "PLEASE PROVIDE
US WITH YOUR FORMAL IRP REQUEST IN WRITING, AND WE WILL FORWARD YOUR
REQUEST TO THE INTERNATIONAL CENTER FOR DISPUTE RESOLUTION, WHICH ICANN
HAS DESIGNATED TO PROVIDE INDEPENDENT REVIEW SERVICES IN ACCORDANCE
WITH THE BYLAWS." (emphasis added). Mr. Hasbrouck immediately did so,
agreeing (under protest) to ICANN's financial preconditions and
attaching his previous Independent Review request from months earlier.
ICANN's official response is truly mind-boggling.
If you follow ICANN closely, you really ought to read it. It has
enormous impact on the entire ICANN community. As background, remember
that the IRP provided by the ICANN Bylaws provides that "Any person materially affected by a decision
or action by the Board that he or she asserts is inconsistent with the
Articles of Incorporation or Bylaws may submit a request for independent
review of that decision or action."
In its response to Mr. Hasbrouck, ICANN takes the unreasonably narrow
view that only Board "resolutions" are reviewable by Independent
Review. It further claims that ICANN's operating "procedures" are not
reviewable, even when they were necessary precursors to ICANN Board
actions or followed directly from such actions. Finally, and most
troublesome of all, ICANN claims that Staff
actions that are inconsistent with, or even in direct violation of,
ICANN's Bylaws are never reviewable, even when those Staff actions
informed or followed from Board decision-making.
To top off
ICANN's insult to what remains of its own integrity, ICANN declines to
forward Mr. Hasbrouck's request to an Independent Review panel, despite
the public promises it made to him in Vancouver and Mr. Hasbrouck's
agreement to ICANN's preconditions. Instead, ICANN insists that Mr.
Hasbrouck redraft his request and resubmit it in a legalistic format
that is specified nowhere on ICANN's website.
We all need to
stand on the side of Edward Hasbrouck on this issue. Whether he's right
or wrong on his ultimate claim matters less than the precedent ICANN
will set by construing its Independent Review provisions as reviewable
of almost nothing.