If ICANN followed it's own bylaws scams like the one going on in German would not be happening. http://bit.ly/o4Qz5 regards joe baptista ---------- Forwarded message ---------- From: Edward Hasbrouck <edward@hasbrouck.org> Date: Thu, Sep 24, 2009 at 9:50 PM Subject: [ga] Failure to implement Bylaws To: iic-proposed-bylaws@icann.org Cc: na-discuss@atlarge-lists.icann.org, ga@gnso.icann.org ICANN has requested comments by tomorrow, 25 September 2009, on proposed revisions to the ICANN Bylaws for "Independent Review" of ICANN decisions: http://www.icann.org/en/announcements/announcement-27jul09-en.htm The fundamental problem with ICANN's current Bylaws for independent review is that those bylaws have never been properly implemented, and that -- despite multiple requests for independent review of ICANN decisions -- no independent review comporting with either the present or the previous independent review Bylaws has ever been conducted. (According to a cursory statement on the ICMRegistry.Com Web site, some sort of "hearing" is being conducted in Washington this week in response to ICM Registry's request for independent review of an ICANN decision. However, whatever is happening in that matter is not in accordance with ICANN's Bylaws on independent review. First, the proceedings are not being conducted with the maximum extent feasible of transparency, as required by the Bylaws. Second, the independent review provider and its procedures were not determined by ICANN in accordance with the procedural rules of ICANN's bylaws for such policy decisions. Instead, ICANN appears to have chosen the independent review provider and allowed it to determine procedures -- which procedures themselves do not comport with ICANN's Bylaws on transparency -- through completely improper secret, ex parte negotiations with the potential independent review provider while independent review requests with other parties were already pending.) Changing the bylaws on independent review will accomplish nothing unless those bylaws are actually implemented (in accordance with, inter alia, the other provisions of the Bylaws with respect to policy development and decision-making procedures and transparency). ICANN has done nothing to give reason for any confidence whatsoever that ICANN will actually implement any accountability mechanisms, current or revised. As I have noted repeatedly in previous comments to ICANN, ICANN has failed to implement any of the three accountability mechanisms required by its current Bylaws. ICANN's Board of Directors has never held a publicly disclosed vote to appoint or reappoint an Ombudsman. The Reconsideration Committee of the Board of Directors has made decisions which, by its own declaration, were based on matters not permitted to be a basis for such decisions. And ICANN has never conducted a policy development process to designate an independent review provider or develop or approve procedures for independent review, just as it never appointed the members of the independent review body provided for by its previous Bylaws. (I also note that the ICANN's request for comments is materially false and misleading in its claim that, "ICANN has an Independent Review Process in place, as established at Article IV, Section 3 (1) of the bylaws". ICANN does not, in fact, have any process in place that has been established in accordance with ICANN's accountability and transparency Bylaws.) ICANN has knowingly and wilfully persisted in this failure, in flagrant violation of its own Bylaws. Members of ICANN's Board of Directors have tolerated this ongoing and flagrant violation of the Bylaws. Given ICANN's failure to establish any other means of accountability, the only remaining mechanisms for calling ICANN to account are for the United States Department of Commerce to revoke its contracts with ICANN for breach of contract (in that ICANN has made contractual commitments to the DOC to observe its Bylaws on accountability), and for the State of California to revoke ICANN's corporate charter for persistent failure to operate in accordance with its Bylaws, as required by that charter. Requests for independent review made under both the previous and present independent review Bylaws remain pending and have not been acted on by ICANN. The proposed revised independent review Bylaws are silent on what action, if any, will ever be taken on these outstanding requests. Rather than revise the independent review Bylaws yet again, ICANN should implement its existing Bylaws on accountability, including independent review, by (1) appointing an Ombudsman, (2)compelling the Reconsideration Committee to act in accordance with the Bylaws in new cases and to properly reconsider those cases previous decided on impermissible grounds, and (3) designating an Independent Review Provider, developing procedures for independent review, and considering the backlog of outstanding requests for independent review, all in accordance with the procedural rules in the Bylaws for such decisions and actions, and the general mandate of the Bylaws for the maximum extent feasible of transparency in the operations of ICANN and its subsidiary bodies. Sincerely, Edward Hasbrouck edward@hasbrouck.org http://hasbrouck.org/icann -- Joe Baptista www.publicroot.org PublicRoot Consortium ---------------------------------------------------------------- The future of the Internet is Open, Transparent, Inclusive, Representative & Accountable to the Internet community @large. ---------------------------------------------------------------- Office: +1 (360) 526-6077 (extension 052) Fax: +1 (509) 479-0084 Personal: www.joebaptista.wordpress.com