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From: Edward Hasbrouck [mailto:edward@hasbrouck.org]
Sent: Monday, May 16, 2005 5:36 PM
To: reconsider@icann.org
Cc: jeffrey@icann.org; press@icann.org; committee@alac.icann.org
Subject: Lack of openness and transparency of 3 May 2005 Board "meeting"

This is a request for reconsideration submitted 16 May 2005 to the Committee on Reconsideration of the Board of Directors of ICANN <reconsider@icann.org, pursuant to Article 4, Section 2 of ICANN's Bylaws.

A. NAME, ADDRESS, AND CONTACT INFORMATION FOR THE REQUESTING PARTY, INCLUDING POSTAL AND E-MAIL ADDRESSES:

Edward Hasbrouck
1130 Treat Avenue
San Francisco, CA 94110
USA

edward@hasbrouck.org:

telephone +1-415-824-0214

B. THE SPECIFIC ACTION OR INACTION OF ICANN FOR WHICH REVIEW OR RECONSIDERATION IS SOUGHT:

(1) Failure to provide -- when it would have been feasible and was directly, and explicitly requested, in advance, by a journalist, stakeholder, and member of the Internet community -- any information as to the time, place, or manner, of the "Special Meeting of the Board" of 3 May 2005, or any means for attending, observing or auditing that "meeting".

(2) Failure to post a preliminary report of the 3 May 2005 Board "meeting" on the ICANN Web site within 5 business days thereafter, as required by Article 3, Section 5 (2) of ICANN's Bylaws.

(3) Failure to respond to my request or inform me of the decision to deny it, resulting in complete lack of openness and transparency as to who was responsible for its denial, the reasons for its denial, and the process followed in deciding to deny it.

C. THE DATE OF THE ACTION OR INACTION:

(1) I Since I have to date received neither any acknowledgement nor any response to my requests for information about, and access to, the 3 May 2005 Board "meeting", I don't not know whether, when, or by whom the decision to ignore my request (and thus to deny it by inaction) was made. The fact that a "meeting" (not a valid meeting within the requirements of the Bylaws) was held on 3 May 2005 became known to me when a preliminary report was posted on the ICANN Web site 14 May 2005.

(2) Under Article 3, Section 5 (2) of ICANN's Bylaws, a preliminary report of any Board meeting must be posted on the ICANN Web site (with exceptions that do not appear to apply in this instance) within 5 business days. A preliminary report should have been posted by 10 May 2005, and the Bylaw was violated as of that date.

(3) As a direct result of the (in)action complained of in this request for reconsideration, I do not know where, when, or in what manner the 3 May 2005 Board "meeting" was held, or which staff or other persons (other than Board members named in the preliminary report posted 14 May 2005) attended, observed, audited, or participated.

D. THE MANNER BY WHICH THE REQUESTING PARTY WILL BE AFFECTED BY THE ACTION OR INACTION:

(1) Any violation of openness and transparency is "per se" harmful, without the need to demonstrate specific harm. It is impossible to know in what ways decision-making might be influenced by openness and transparency, or the deficiency thereof.

(2) As a journalist, my ability to report on the "meeting" was and is impaired by my inability to observe or audit it, and delayed by the absence of real-time information about the "meeting" as well as by the delay in posting of the preliminary report.

(3) As an Internet user and domain registrant, I am a stakeholder in topics which were discussed at the "meeting".

(4) As a member of the Internet community entitled to participate in ICANN's "consensus-development process", I have an interest in knowing by what process ICANN makes decisions, which was and is impaired by inability to observe or audit meetings.

E. THE EXTENT TO WHICH, IN THE OPINION OF THE PARTY SUBMITTING THE REQUEST FOR RECONSIDERATION, THE ACTION OR INACTION COMPLAINED OF ADVERSELY AFFECTS OTHERS:

(1) All Internet users, stakeholders, and members of ICANN constituencies are adversely affected by any lack of openness and transparency in ICANN's decision-making process.

(2) Readers of my reporting are adversely impacted by my inability to fully and promptly report on Board deliberations and actions, as a result of the closure of Board "meetings" and late release of information about them.

F. WHETHER A TEMPORARY STAY OF ANY ACTION COMPLAINED OF IS REQUESTED, AND IF SO, THE HARMS THAT WILL RESULT IF THE ACTION IS NOT STAYED:

I request that any further holding of closed "meetings", without provision for attendance, observing, or auditing by those who request access, be stayed pending action on this request.

I request that any "decisions" made at the 3 May 2005 "meeting" be stayed until they can be reconsidered at a meeting held with the maximum feasible extent of openness and transparency.

All of the harms of closure of meetings, as described above, are cumulative and, in ICANN's past practice continuing harms. It is impossible to know how decisions might differ if they were made through a maximally open and transparent process, which would include being subject on request to attendance, observing, or auditing by journalists and other interested stakeholders, Internet community members, and would-be participants in "bottom-up consensus development".

G. IN THE CASE OF STAFF ACTION OR INACTION, A DETAILED EXPLANATION OF THE FACTS AS PRESENTED TO THE STAFF AND THE REASONS WHY THE STAFF'S ACTION OR INACTION WAS INCONSISTENT WITH ESTABLISHED ICANN POLICY(IES):

As noted above, I have received no communication from any ICANN staff in response to my request. I do not know whether, or if so by whom, any action was taken by ICANN staff.

H. IN THE CASE OF BOARD ACTION OR INACTION, A DETAILED EXPLANATION OF THE MATERIAL INFORMATION NOT CONSIDERED BY THE BOARD AND, IF THE INFORMATION WAS NOT PRESENTED TO THE BOARD, THE REASONS THE PARTY SUBMITTING THE REQUEST DID NOT SUBMIT IT TO THE BOARD BEFORE IT ACTED OR FAILED TO ACT:

Since I was unable to observe or audit the "meeting", I do not know whether my request was considered by the Board, or if so, what information was or was not considered by the Board.

My request for access to the Board meeting was made 29 April 2005 by e-mail to "press@icann.org" (the publicly designated e-mail address of ICANN's "General Manager, Communications and Public Participation") and "jeffrey@icann.org" (the address of the secretary of the Corporation, who I presume is responsible for custody of records of Board meetings).

When I received no acknowledgement or response to this request, I re-sent it 2 May 2005 to all members of the ICANN Board of Directors for whom I could find e-mail addresses from the ICANN Web site. (I was unable to find any e-mail address or designated contact for communication with the Board as a whole on the ICANN Web site.)

I. WHAT SPECIFIC STEPS THE REQUESTING PARTY ASKS ICANN TO TAKE- I.E., WHETHER AND HOW THE ACTION SHOULD BE REVERSED, CANCELLED, OR MODIFIED, OR WHAT SPECIFIC ACTION SHOULD BE TAKEN:

(1) Any "decisions" made at the 3 May 2005 Board "meeting" should be reconsidered at a meeting open to attendance, observing, and/or auditing (depending on the manner in which the meeting is held), and for which a public forum is provided.

(2) Any transcript and/or recording of the 3 May 2005 "meeting", if either or both exists, should promptly be posted on the ICANN Web site.

(3) Future Board meetings should be open to attendance, observing, and/or auditing (depending on the manner in which the meeting is held), and each should include a public forum.

(4) Future requests for the exercise of rights guaranteed under the openness and transparency clause of the Bylaws, such as requests for documents, records, or access to meetings, should be responded as promptly as is feasible, identifying (a) whether the request is denied in whole or in part, (b) the person or body within ICANN responsible for any decision to deny a request in whole or in part, and (c) the reason(s) for any decision to deny a request in whole or in part.

J. THE GROUNDS ON WHICH THE REQUESTED ACTION SHOULD BE TAKEN:

(1) Article 3, Section 1 requires 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." It would have been feasible (a) to provide information as to the time, place, and manner of the 3 May 2005 Board "meeting", in response to my request, and (b) it would have been feasible to provide for attendance, observing, or auditing (depending on the manner is which the "meeting" was held). Providing this information and access, on request, would have resulted in greater openness and transparency, and was thus required in order to provide "the maximum extent feasible" of openness and transparency.

(2) Article 3, Section 5 (2) of ICANN's Bylaws requires unambiguously that, "No later than five (5) business days after each meeting (as calculated by local time at the location of ICANN's principal office), any actions taken by the Board shall be made publicly available in a preliminary report on the Website". The first preliminary report of the 3 May 2005 meeting was posted no earlier than 14 May 2005, more than eight full business days after the meeting.

(3) In Resolution [04.24], adopted 6 March 2004, the Board resolved "that based on the Reconsideration Committee's Recommendation RC 04-1, the Board hereby recommends that staff pay due attention to the Bylaws' transparency provisions, and urges staff to dedicate necessary resources to ensure compliance with the prescribed timelines for the posting of preliminary reports." In that Recommendation [RC 04-1] (4 March 2004), the Reconsideration Committee considered this same issue of late posting of preliminary reports, and requests for auditing of Board meetings, and recommended that "if difficulties with posting the preliminary reports continue, the full Board should consider the suggestion to make available audio recordings of all Board meetings". At a minimum, therefore, since the failure to post preliminary reports within the time limit set by the Bylaws persists, the Reconsideration Committee should recommend the release of audio recording of Board meetings.

K. ANY DOCUMENTS THE REQUESTING PARTY WISHES TO SUBMIT IN SUPPORT OF ITS REQUEST:

My original request is as follows:

From: "Edward Hasbrouck" <edward@hasbrouck.org Organization: The Practical Nomad To: "ICANN Board and staff" Date: Mon, 02 May 2005 16:27:09 -0700 Subject: (Fwd) Request for Board meeting info and access CC: jeffrey@icann.org, press@icann.org, committee@alac.icann.org

Since I have received no answer or acknowledgement of the message below from ICANN staff, I am copying it to all those members of the ICANN Board of Directors for whom I was able to find e-mail addresses from the ICANN Web site.

I appeal to the Board of Directors to comply with the requirement of the bylaws that, "ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner," including by responding to requests for documents and records, and providing public access to observe and/or audit your meetings, "to the maximum extent feasible".

Sincerely,

Edward Hasbrouck

------- Forwarded message follows -------

From: Edward Hasbrouck <edward@hasbrouck.org To: jeffrey@icann.org, press@icann.org Subject: Request for Board meeting info and access Date sent: Fri, 29 Apr 2005 19:01:16 -0500

According to the ICANN Web site, a meeting of the Board of Directors is to be held on Tuesday, 3 May 2005.

But the Web site does not give sufficient notice of the time, place, or manner of this meeting to enable journalists, stakeholders, or other interested parties to attend or observe the meeting. No means of remote observing or participation is indicated on the Web site, and no address is on the Web site for any public forum.

Please tell me, and post publicly, when, where, and by what means the 3 May 2005 Board of Directors meeting will be held, and what means are feasible for public attendance, observing. auditing, and remote participation.

In particular, if this meeting is to be held by telephone. I believe that it would be feasible to provide an audio Webcast of the meting, and/or to permit interested observers to audit the conference call. In accordance with the requirement of ICANN's bylaws that ICANN conduct itself with the maximum extent feasible of openness and transparency, I request that provision be made for audio Webcasting and/or telephone auditing, and that a forum be provided for public input.

If ICANN cannot afford the cost of telephone auditing of the meeting, I am willing to pay the reasonable cost of my auditing a telephone meeting. (Commercial teleconferencing services are available for no more than US$0.10 per minute per participant or auditor.)

I am sending this request once again to the addresses specified on the ICANN Web site for the manager of public participation and the Secretary of the Corporation. To date, I have received absolutely *no* response from either of you to my repeated and specific requests for ICANN documents, records, and meeting information, which ICANN is required to provide, on request, to the maximum extent feasible.

There is no address on the ICANN Web site for the Board of Directors as a whole. Please forward this message to the members of the Board of Directors, so that they are aware that a request has been made that the 3 May 2005 meeting be held with the maximum extent feasible of openness and transparency, specifically including audio Webcasting and/or telephone auditing.

One of my unanswered requests for documents and records was posted on the ICANN Web site (under "Correspondence", not under the public forum, and not linked in any way from the record of the meeting or the announcement of the decision on ".travel to which it pertains). But neither my request for independent review, nor any of the public comments by other people sent to "argentina@icann.org" have yet been posted or acknowledged by ICANN.

I reiterate my previous unanswered requests for documents and records, my request for independent review of the decision to approve an agreement on ".travel", and my request for a stay of action by ICANN pending the recommendation of the independent review panel concerning a stay.