Reconsideration Request 04-2
24 July 2004
Specific Action of ICANN Staff, and Inaction on the Part of ICANN’s Generic Names Supporting Organization
From: Danny Lee Younger
Date: Sat., 24 July 2004
Dear members of the Reconsideration Committee:
My name is Danny Lee Younger; my postal address is 2311 60 th Street, Brooklyn, New York, USA 11204. I may be contacted by e-mail at this address: firstname.lastname@example.org .
I write to you regarding both specific action of ICANN staff, and inaction on the part of ICANN’s Generic Names Supporting Organization, for which I seek review and/or reconsideration, namely:
Action has been taken by ICANN staff (on/or around April 20, 2004) to effectively close that which was known as the General Assembly Discussion List; the GNSO Council - which is charged under the Bylaws with the responsibility to manage this list - neither formally authorized this list closure, nor took any action to restore to the public this unique tool which has long served to promote the development of consensus in the ICANN process.
When any member of the ICANN community with knowledge of and an interest in issues pertaining to the area of domain name policy development seeks to access the public archive of current discussions (so that they may be better prepared to make an informed contribution to proposals in their development stages, to draft document preparation, etc.), they come upon this page at http://gnso.icann.org/mailing-lists/archives/ga/ which demonstrates that there are no current discussions being archived subsequent to 20 April, 2004.
As a member of the general public, I am affected both by this action on the part of ICANN staff (that has eliminated the possibility of continued participation in ICANN’s only open-to-all domain name policy discussion list), and by that inaction of the part of the GNSO that has allowed this closure to transpire (one might also mention the failure through inaction of the GNSO to properly manage this list – self-evident in view of the number of non-substantive postings that may be found within the archives).
This unauthorized list closure affects me and those others in the general public that are not members of formally recognized GNSO constituencies - we now no longer have a venue within ICANN for public domain name policy discussions; only constituency members continue to have such privileges... registrars and others (such as those from the non-commercial world) will continue to have informed and insightful discussions on their respective lists, but the public no longer may participate in like manner. This is neither fair nor productive - our right to meaningfully participate in ICANN by way of a well-managed list environment has been abrogated without the benefit of any discussion or due process.
One might ask, "Other than the chilling effect of the exclusion of a vital segment of the ICANN community - the general public - from a domain name policy discussion forum, what harm will be done if this list is not restored to full operational status under proper management?"
The General Assembly Discussion List has historically served as a cross-constituency forum that allowed for the exchange of views amongst all parties in the ICANN process - it was possible for members of the public on an ongoing basis to engage in dialogue with both members of industry and members of the ICANN Board on issues of mutual concern. This robust dialogue (which allowed for the possibility of consensus to emerge), served as a vehicle which most probably reduced the incidence of litigation - parties could debate and resolve their differences openly without what seems to be the current need for parties in the ICANN process to rush headlong into the Courts for a verdict on matters under dispute.
The elimination of a consensus development tool can occasion another form of harm as well… as we work to facilitate the transition to fully privatized technical management of the Internet, we must be cognizant of the fact that ICANN must meet certain milestones that have been set by the U.S. Department of Commerce, one of which states:9. Continue to develop, to test, and to implement appropriate mechanisms that foster informed participation in ICANN by the global Internet community...Closing a mechanism that has fostered informed participation in ICANN without offering a suitable replacement mechanism in its stead cannot be viewed as a step taken without the potential for harm. The Department of Commerce may consider an action that terminates a form of public participation to be a significant failure to comply with language that calls for continued development and testing of participation mechanisms.
In view of these considerations, I request that as a first step, the General Assembly Discussion List be restored to full functionality (further steps/recommendations to be outlined later in this document).
As this matter involves both staff action and GNSO inaction, it is incumbent upon me to provide a detailed explanation of the facts as presented to the staff, and the reasons why the staff's action and the GNSO’s inaction are inconsistent with established ICANN policy:
Like many members of the public that seek to participate in the ICANN process, I too am often spurred into action by the prospect of another round of upcoming decision-making at ICANN plenary sessions. This prompts me at certain times of the year to review discussions underway in several communities. At such times I will review discussions on the registrar's list and other such lists to keep abreast of current issues.
Prior to the Kuala Lumpur session I began the process of reviewing the lists and discovered that the archives for the General Assembly List were not current. I contacted ICANN about this matter during the week prior to the start of activities in Kuala Lumpur, and was referred to the Technical Systems Manager who confirmed his role in the matter of the General Assembly list. He informed me that he had received no complaints about the situation and that he would not take any further action without instructions from ICANN management. I was able to cordially share my views with him, and indeed agreed with many of his particular insights regarding “noise” on such lists.
Unfortunately, his action (though in his own mind well-intended) does not accord with established ICANN policy which designates the GNSO Council, not ICANN staff, as the body responsible for list management:The GNSO Council is equally culpable for not having paid attention to the list that they were supposed to manage - I have no indication that anyone on the council was even aware of the non-functioning status of the GA list (no commentary appears anywhere on the Council discussion list relative to this topic).
ARTICLE X: GENERIC NAMES SUPPORTING ORGANIZATION
Section 3. GNSO COUNCIL
Paragraph 4. …In addition, the GNSO Council is responsible for managing open forums, in the form of mailing lists or otherwise, for the participation of all who are willing to contribute to the work of the GNSO; such forums shall be appropriately moderated to ensure maximum focus on the business of the GNSO and to minimize non-substantive and abusive postings.
One might equally ask if this matter involved any Board action or inaction... unfortunately, one must answer in the affirmative. Our Bylaws call for a periodic review of ICANN structure and operations:
"The first of such reviews, to be initiated no later than 15 December 2003 and to be completed in time for Board consideration at ICANN's annual meeting in 2004, shall be of the GNSO Council". - Article IV, Section 4, Paragraph 2.
As the ICANN Board is already more than seven months into its review of the GNSO Council, it is a foregone conclusion that members of the Board must have been aware of the current state of events with respect to the Council’s management function as it pertained to the various lists.
In view of this situation, and to answer the question, “Why didn’t I bring this matter to the Board instead of the Reconsideration Committee”, I decided that with the Board already being aware of the situation in light of the Review, and with members of the Board already having decided, for their own good reasons, to adopt a course of inaction (no resolutions having emerged from the Kuala Lumpur Board meeting on this topic), the only appropriate step to take was to have this matter reviewed by the Reconsideration Committee.
The specific steps that I am requesting that ICANN take are as follows:
The grounds on which the requested action should be taken (other than those self-evident in ICANN's MOU with the U.S. Department of Commerce) are these:
ICANN's Blueprint for Reform set forth a commitment to "developing mechanisms to encourage full public participation in ICANN". This commitment was codified in the Core Values of the ICANN Bylaws which establish the following as values:
Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making.
Employing open and transparent policy development mechanisms that (i) promote well-informed decisions based on expert advice, and (ii) ensure that those entities most affected can assist in the policy development process.
When ICANN makes a commitment to encourage full public participation, it should honor that commitment.
I recognize that the general public is the entity most affected by ICANN’s policy development process; its informed participation is vital - closing down a public forum does not advance the cause of full public participation. While I will be the first to admit that there have been problems associated with the General Assembly list environment, I do not agree that the proper solution (as enacted by ICANN staff) is to close down the list without due process.
Sadly, those that participated on the General Assembly Discussion List have been singled out for disparate treatment. Registrars have not had their discussion list terminated; neither has the non-commercial constituency’s list been closed, nor the discussion lists of other parties in the ICANN process – only the public’s list has been terminated – this action stands in opposition to the language of the Bylaws which state:
"ICANN shall not apply its standards, policies, procedures, or practices inequitably or single out any particular party for disparate treatment unless justified by substantial and reasonable cause, such as the promotion of effective competition."
I cannot conceive of any substantial and reasonable cause that would have warranted the closure of this list without the benefit of public comment on the topic.
I ask for your review of this matter.