ICA Tells ICANN Ombudsman Office Its IRT Report is “Tardy, Nonresponsive and Non-Persuasive”

On April 21, 2009 the ICA filed a formal request with the ICANN Ombudsman requesting an investigation of our allegations that the Implementation Recommendation Team (IRT) established by ICANN to propose “solutions” for trademark owners at new gTLDs was a “constituent body” acting in violation of relevant ICANN Bylaws requiring the maximum feasible amount of transparency and fair procedures (click here for text of the original complaint).

On June 3, 2009 — the week after the IRT released its Final Report and concluded its work – we received an official report from the Ombudsman. Not only was this response received too late to do any possible good (on the off chance that our allegations were determined to be valid by this ICANN accountability procedure) but it failed to ever grapple with our central contention — that the IRT was a “constituent body” bound by the Bylaws. As for whether the ICANN community was provided with clear and timely notice of the opportunity to apply to be a member of the IRT, the documents offered up by the Ombudsman to prove that point actually prove the opposite.

The full text of the Ombudsman report and our response to it are below. One salient point raised in our response is the question of exactly how much was expended by ICANN in financial support for the IRT (we estimate it was in the range of $50-100,000). We hope that in the interest of transparency the full amount is shared with the ICANN community.

We shall shortly depart for Sydney to publicly voice our criticisms of the IRT process and recommendations – and to make the case for a comprehensive UDRP reform process that is open, inclusive, balanced and transparent in keeping with the ICANN Bylaws. We shall also be opposing even the consideration of implementing any part of the major policy changes recommended by the IRT unless they are vetted by the full GNSO review process (hopefully, in the context of comprehensive UDRP reform), as that is supposed to be the case for any policy change relating to gTLDs.  

BUTERA & ANDREWS
Attorneys at Law
1301 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-1701
202-347-6875
Philip S. Corwin, Partner
pcorwin@butera-andrews.com


By E-Mail
June 12, 2009

Dr. Frank Fowlie, DCR
Ombudsman
The Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey
California, USA, 90292

Dear Mr. Fowlie:

I am writing in response to your e-mail of June 3, 2009, which provided the results of your investigation of the allegations of the Internet Commerce Association (ICA) of April 21, 2009. We alleged that the Implementation Recommendation Team (IRT) constituted by ICANN to let intellectual property interests develop proposed “solutions” for new gTLDs was operating in violation of relevant provisions of the ICANN Bylaws, and requested prompt corrective action to require compliance.

We have carefully reviewed your findings and regret to say that we find them tardy, nonresponsive, and non-persuasive. It is precisely this type of inadequate process and unconvincing result that leads so many within the ICANN community to regard it as an organization lacking effective assurance of accountability.

There are two overarching problems with your response:

1.    It is inexcusably late. As four-time British Prime Minister Williams Gladstone observed, “Justice delayed is justice denied.” It is difficult to understand why your investigation and resulting report consumed 6.5 weeks from the time of receipt of our complaint. You were well aware that the IRT was required to issue its Final report on May 24th (later extended by staff fiat to May 29th). Assuming your neutral objectivity at the inception of your inquiry, if our allegations were correct it was incumbent for your office to intervene while the IRT was still in operation and receiving ICANN staff and financial support. Your delay in reaching a final conclusion assured that the IRT would be undisturbed by any finding against its mode of operation had that been your conclusion.

2.    It fails to even address the central foundation of our complaint – that the IRT was a “constituent body” of ICANN and thereby bound to act in accordance with ICANN Bylaws. We believe that we put forth a persuasive case for that proposition in our original letter, yet your report sidesteps it completely. The Bylaws require 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” – and we emphasize the requirement for conformance to “the maximum extent feasible” and not to the minimum amount excusable, which appears to have been the standard utilized by the IRT.  Our belief that the IRT was a “constituent body” was further buttressed by the visual evidence of the letterhead on which our invitation to present to its San Francisco meeting arrived – the ICANN name and logo next to “Implementation Recommendation Team”, conveying the clear message that the IRT was an official entity within ICANN.

Turning to the specific points of your report:

•    In regard to whether the ICANN community was adequately informed of the opportunity to submit applications to be considered for membership on the IRT, I have reviewed the three documents referenced in your report and, contrary to your conclusion, they confirm that the notice was not widely distributed in a timely manner. The first document is an e-mail sent by Kristina Rosette of the Intellectual Property Constituency (IPC) to members of the GNSO Council on March 11, 2009 at 6 PM – this was a scant 36 hours prior to the deadline for submission of applications, set for 12 noon on Friday, March 13th! The second document is the ICANN Weekly Newsletter of March 7, 2009 which contains a brief introductory notice of the Board’s decision to constitute the IRT but which does not state that applications for membership were being solicited, much less provide the application criteria and procedures and the submission deadline. That brief notice links to the third and final document, a March 6, 2009 ICANN press release entitled “Trademark Issues to be Addressed Ahead of Internet Address Expansion” which repeats the same general information about the Board’s decision to constitute the IRT but nowhere mentions that there is an ongoing application process for interested parties or that there is a submission deadline one week later. In sum, these documents provide evidence that the application process was not widely noticed to the ICANN community in a timely fashion, only that this information was distributed to members of the GNSO Council one-and-one-half days prior to the application deadline (which in turn explains why members of the Business Constituency, of which ICA is a member, did not receive any notice of the opportunity to apply until after the deadline had passed, and why general members of the ICANN community received no clear and timely notice at all). These documents reinforce the impression that the opportunity to apply for IRT membership was likely conveyed on a highly selective basis by the IPC to individuals they pre-approved for solicitation.

•    It is clear from the IRT membership list that no representation was provided to the professional domain investment community, despite the fact that we nominated a highly qualified individual on the afternoon on March 13th after learning of the application opportunity at the very last moment by sheer happenstance. We have previously stated that we do not regard the opportunity to make a 30 minute presentation as in any way equivalent to full time participation.

•    In regard to the transparency of the IRT process, particularly its decision to not release mp3 recordings or transcriptions of its meetings and to only provide vague and general minutes in their stead, we do not believe that your comparison of the IRT to the ICANN Board is an appropriate one. The ICANN  Board has certain fiduciary responsibilities under California law which may sometimes require confidential deliberations (we note, however, that the Board’s consistent practice of only releasing summary minutes of its telephonic meetings came under sever criticism at the June 4, 2009 U.S. Congressional oversight hearing on ICANN). The better comparison is to the GNSO and various ICANN working groups, all of which generally provide public access to full recordings of their proceedings. They somehow manage to contribute to the ICANN process in a full and effective way without invoking confidentiality as the rule rather than the exception. That is, they take seriously the Bylaws requirement to operate in a transparent manner to the maximum extent feasible.

•    As to statements of interest for IRT members, we recognize that such statements are included in its Final Report but do not understand why they could not have been released at the outset, especially given our skepticism for the claim that members of the IRT were acting in an individual capacity and not on behalf of their employers or clients (a claim belied by the IRT’s rationale for non-transparency and confidentiality, which was that many of its members might not have been permitted to participate  by those very same employers or clients if the meetings were fully open to public review).

•    Finally, while not raised in our initial letter, we believe that the ICANN community has a right to know exactly how much ICANN expended in staff time and related compensation, and in direct expenditures for the support of travel expenses of IRT members and ICANN staff, as well as the portion of staff salary associated with their IRT activities. Given that support was made available for 15 IRT participants for travel, accommodations, and related expenses for two multi-day meetings in Washington and San Francisco, and that the salary and expenses of supporting ICANN staff (we observed three present in San Francisco) should also be included, we would estimate that it falls in the range of $50-100,000. The community might well wish to ask why funds were made available for this IPC-directed enterprise when other constituencies and advisory groups are repeatedly told that they cannot be provided requested financial support.

As we expected, the IRT has proposed “solutions” for new gTLDs that are heavily biased in favor of the IP interests that selected its membership and dominated it, and that do not adequately consider the interests and concerns of registrants. The Global Protected Marks List, for example, proposes a preemptive regime that has no basis in trademark law; were ICANN to adopt this recommendation it would be assuming legislative functions that go far beyond its legitimate role as technical coordinator of the DNS.

Likewise, the proposal for a Uniform Rapid Suspension (URS) system is overbroad, provides insufficient due process for registrants, has no effective appeals process for registrants who believe their domains have been unfairly suspended, and has no effective sanctions against abusive complainants. The URS really should be called the URSP because it would constitute a radical new Policy that would almost completely displace the UDRP at all new gTLDs. Only the GNSO, which consists of a broad array of constituencies (not just the IPC acting in the guise of the IRT) is supposed to develop and recommend to the ICANN Board substantive policies relating to gTLDs – yet we suspect that ICANN may well try to short-circuit that deliberative process and rush through part or all of the IRT recommendations on the excuse that they are mere implementation details for new gTLDs. That would be an inexcusable and dangerous precedent.

We continue to believe that what is needed is not an entirely new and untested trademark protection scheme for new gTLDs but the convening within ICANN of a fair, open, inclusive, deliberative and fully transparent process for comprehensive UDRP reform that takes the perspectives and interests of all parties into account and that results in a uniform policy across all gTLDs, both incumbent and new, that fairly balances the rights of trademark owners and registrants.

We and others shall clearly state our views on the IRT recommendations and the proper process going forward at the upcoming ICANN meeting in Sydney. And if ICANN does try to do an end run around its own prescribed policymaking process we shall likely seek redress through means other than an appeal to its Ombudsman office.

Sincerely,
Philip S. Corwin
Counsel, Internet Commerce Association

June 3, 2009

Dear Mr. Corwin,

Thank you for your recent set of correspondence, drawing to my attention a number of issues concerning the Implementation Recommendation Team (IRT).  Please consider this to be my preliminary report into your complaints.  Should you have any questions or concerns arising from this review, please do contact me.  If your concerns are satisfied by this correspondence, I will close my file.  As a courtesy to you, I will leave the file open until June 15th in order to provide adequate time for you to respond.  Should you be attending the upcoming ICANN meeting at Sydney I would also be pleased to meet with you there to discuss any concerns you may have.

If I understand your complaints correctly, you have informed me of three concerns which relate to the administrative fairness in the formation and operation of the IRT.  If these are not an accurate portrayal of your concerns, please do revert to me.

1.    That there was not a fair call for applications for candidates for the IRT.  You have complained that you were unaware of the call for candidates and a candidate you encouraged to participate was not asked to serve on the IRT;

2.    That the IRT has not provided sufficient records of its meetings to be considered to have discharged its work in an open and transparent manner; and,

3.    That the IRT members have not provided sufficient conflict of interest disclosure to the community.

I propose to evaluate your concerns on a one by one basis.

First, from your May 8th correspondence it appears that you have concerns that you were not given a fair opportunity to either participate in the IRT as a member, or to encourage others to do so.

I have verified the traffic on the GNSO listserv; verified the content of the ICANN website and news releases; and have had discussions with the President of the Intellectual Property Constituency (IPC) to determine what steps were taken to advise community members of the opportunity to serve as a member of the IRT.  My investigation leads me to believe that there was an announcement of the call for candidates on the GNSO list [1]; that the call was included in the ICANN Newsletter [2]  and on the ICANN website [3].

I am informed by the IPC President that all GNSO constituencies and ICANN supporting organizations were informed of the call for candidates.

While it is regrettable that you did not learn of the call for candidates until the last minute, I can find no evidence that ICANN acted in any way to prevent you or any other person from learning of the call for candidates.  As well, the evidence that I have before me indicates that those community members selecting IRT candidates did so with a view to ensure a variety of values and perspectives in the discussions, and also a fair geographic distribution of the membership.

I am further informed that the IPC, when forming the IRT membership had received more applications from candidates than could reasonably be selected to for a working team of 15 people, as was the direction from the Board.  It appears that unsuccessful  applicants were not selected to ensure a wide representation of view, and geographic location. I also understand that you were invited by the IRT to and did make a presentation to the IRT at its meeting in San Francisco.

Based on the above, I can find no evidence that the opportunity to serve as a member of the IRT was either unfairly administered, or that the general make-up of the members was unfair to those who were not selected.

Second, your April 21 letter makes two specific recommendations for my Office to consider, the first of which deals with openness and transparency.  Your citation and analysis of ICANN Bylaw requirements for open and transparent operations is noted.

In my analysis of your complaint I have looked at general principles of Access to Information; and have also compared the operations of the IRT with other ICANN bodies.  It seems to be a generally accepted standard in the public domain that certain discussions can be held by participants without having to provide verbatim reports.  While ICANN strives for openness and transparency, there are times when it reports on its discussions by way of minutes, as opposed to full verbatim reports.

Certainly the ICANN Board of Directors operates in the above described manner.  Board meetings are portrayed to the community in the form of minutes, and not verbatim reports.  I am also informed that other supporting structures hold in camera sessions when there is consensus to do so.  I note that when it is decided to use minutes as opposed to verbatim recordings, that the minutes reflect this decision being made.

The IRT minutes for its inaugural March 25 meeting [4] contain the following at item 4:

Reporting & Transparency – the call today was recorded since IRT operational protocols being decided on the call; minutes of this call and all meetings shall be posted on the wiki; many team members raised concerns about being able to participate fully and effectively if team work was fully public; agreed to closed mailing list, recordal of calls for IRT members only, no distribution of MP3, discussions to be confidential except general updates and ideas may be shared provided no attribution; issue of conflicts raised and agreed participants shall submit statements of interest.


It is my understanding that appropriate minutes have been recorded of all IRT meetings, that these minutes have been posted on the web for the benefit of the community, and that statements of interests are included in the IRT’s final report.  Based on all of the above, I cannot make the determination that ICANN has acted unfairly by producing minutes as opposed to verbatim recordings of the IRT meetings.

Third, you have requested that the IRT release and make public conflict of interest disclosure statements.  One of the principles in freedom and information and privacy is not to release third party information held by an agency, government, organization, etc.  In this case, the holding of disclosure information provided by the members of the IRT should be respected by ICANN.  I note that ICANN requires members of the Board of Directors to make conflict of interest disclosure, but that these statements are held confidentially by the organization.  I can see no reason why members of the IRT would not be extended the same level of privacy given to members of the Board.

I note that the members of the IRT are all identified in the final report by their position and place of employment, that the final report also includes statements of interest for each IRT member, and that the final report is available on the web. [5]

I find that it is not an unfairness for ICANN refuse to release third party information about members of the IRT.

Thank you for contacting the Office of the Ombudsman with your concerns.  Should you have any questions, concerns, or further information you wish to provide me concerning my preliminary report please contact me by email, or through the case management system, as I will be on overseas travel status over the coming weeks.

Best regards,
Frank Fowlie
_______________________________________________________________

[1]http://gnso.icann.org/mailing-lists/archives/council/msg06420.html
[2]http://www.icann.org/en/newsletter/archive/newsletter-20090306.htm
[3]http://www.icann.org/en/announcements/announcement-6-06mar09-en.htm
[4]https://st.icann.org/data/workspaces/new-gtld-overarching-issues/attachments/trademark_protection:20090410223141-0-23728/original/MTGMINS-March25.pdf
[5]https://st.icann.org/data/workspaces/new-gtld-overarching-issues/attachments/trademark_protection:20090407232008-0-9336/original/IRT-Directory.pdf

Dr. Frank Fowlie, DCR
Ombudsman

The Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey
California, USA, 90292

tel: +310-823-9358
fax: +310-823-8649

www.icannombudsman.org
The Values of this Office are:
-Respect for Diversity;
-Excellence in Ombudsmanship;
-Professionalism;
-Confidentiality;
-Impartiality;
-and Independence.

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