My reporting on the Internet Corporation for Assigned Names and Numbers (ICANN) has gone through several stages since 2000, and came to be about a very different, and more fundamental, set of issues than were at stake in my earliest stories about ICANN and Internet domains names for travel.
The article below was written in the heat of events, and has not been re-written from the present tesne to the past tense. ICANN has twirsted and turned and changed, but as of 2020, all of the problems with ICANN as “privatized governance” persist.
The details are tedious, but what is at stake is not just the control of an important global resource — the Internet — but the broader question of the rights of journalists and the public in a world in which the power to make decisions over such important public resources is being transferred by governments to private corporations that lack accountability or transparency.
I’m sorry that the story may seem technical, but fundamental rights are actually at stake. It’s not just about travel: ICANN’s handling of .aero and .travel epitomizes the larger problems with Internet governance and privatization of decision-making on public policy.
I didn’t set out to write a treatise on ICANN or on how and by whom the Internet is “governed”, and I didn’t expect to become a participant myself in the story. My coverage of ICANN began with my attempt to report on what seemed a relatively straightforward story at the intersection of my interests in travel, the Internet, and consumer advocacy: the creation under ICANN’s supervision of top-level Internet domain names (TLD’s, like .com or .edu or .info) restricted to the travel industry: .aero (for air transportation) and .travel (originally proposed by the airline cartel IATA, but eventually approved for a wider range of the travel industry, although still to the exclusion of travellers).
For travellers, the issue is that while keeping top-level domains artificially scarce to enhance their value to the handful of companies given the franchise to control them, ICANN is allocating a huge proportion of this limited Internet “namespace” for the exclusive use of the industry that sells travel-related services — and is equating that industry with the entire concept of travel.
ICANN’s own consultants agreed with me that neither airlines nor the travel industry adequately represent the interests of consumers and travellers. They recommended against .travel, for this same reason, when it was first proposed in 2000, and again in 2004. ICANN overruled them
What should be a public commons is being captured by corporate interests, travel is being reduced to the purchase of services, and travellers and the rest of the public are being reduced to consumers. .aero and .travel are the first industry-specific TLD’s, making travel the test case of the corporate enclosure of this virtual commons.
But that turns out to be the least of the problems I’ve uncovered. In trying to investigate who was really behind the .travel and .aero proposals, and to report on ICANN’s consideration of their applications, I came up against a pattern of cronyism, back-room deals, and above all of secrecy and arbitrariness in both the substance and the process of making decisions — in fundamental violation of the high-sounding commitment in ICANN’s bylaws 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 when I tried to complain, I discovered that ICANN is accountable to no one, and has made no provision for oversight of its decisions.
What began as an attempt to “get the story” as a journalist, and to advocate for the interests of travellers and consumers, gradually became, of unfortunate necessity, first an attempt to hold ICANN to its purported principles of transparency and then, when that was denied, an attempt to hold ICANN accountable under its purported provisions for independent oversight.
ICANN is the governing body of the Internet, but ICANN doesn’t like to speak of what it does as “governing” because that might suggest that it should be held to the same standards of democracy, public accountability, etc. as a government agency, or even that its power should be transferred to some sort of actual government entity.
Unfortunately, governance of the Internet by ICANN is the poster child for the efforts of the government of the USA not just to privatize and outsource to corporations the provision of government services (delivering the mail, sweeping the streets, etc.) but to privatize governance itself — that is, to outsource to corporations the making of policy decisions — and to impose that model of corporatized private governance on the world, regardless of any objections by other governments or global civil society.
To point out, as I have, that ICANN is arbitrary and secretive, is to call into question whether corporations can do a better job of the process of governing than the traditional institutions of democratic government (elections, legislatures, courts, etc.). That’s a heresy that religious devotees of “market forces” as divinely inspired, and believers in the inherent superiority of privatization, are constitutionally incapable of imagining, much less admitting. If they did, that would cast doubt on whether the “ICANN model” of delegating decision-making to private corporations should be extended to other areas where public policies are currently set by legislation or government regulations.
As a private California corporation, ICANN exercises government-style global power over the Internet, without admitting to being subject to any of the laws that protect the rights of the press and the public when we are dealing with actual government agencies.
In ICANN’s Alice-In-Wonderland world of privatized governance, open meeting laws, freedom of information or “sunshine” laws, and laws guaranteeing administrative due process are replaced by corporate bylaws on “transparency” and “accountability”. And if your rights under those bylaws are violated, as mine have been, your only possibility of redress is through — you guessed it — private arbitration by another corporation, not the courts.
At the most fundamental level, my dispute with ICANN over access to meetings, documents, and records has become the test case of the meaning of “due process” and “judicial review” in the context of privatized government-by-corporation. What rights, if any, do the public and the press have to access to information about the process of decision making? And what, if any, accountability do corporations have to independent oversight when they are exercising the authority to determine public policy? As privatization “progresses” from delivery of services to the decision-making functions of government, these are crucial questions for the retention of any semblance of democracy and justice.
ICANN claims to have agreed to submit to “independent” arbitration of whether they followed their own transparency bylaws in their (non)responses to my attempts to report on .travel. But it remains to be seen if I will be offered genuinely independent arbitration, or only a corporate kangaroo court designed by ICANN to ensure that the arbitrators of their choice rule in their favor or that the arbitration process is so expensive that I can’t afford to risk having to pay for it if I lose — which, of course, is what is required for corporate justice.
Under its bylaws, ICANN is supposed to have procedures in place for the arbitration, and to have chosen the arbitration corporation in advance. They haven’t. Instead, they are trying to ignore their own decision making policies, pick their own arbitrator (with whom they may already have a secret side agreement they haven’t yet shown me) in secret, make up the rules for the arbitration as they go along, and impose them unilaterally and retroactively.
ICANN is the poster child for those who believe in privatization and outsourcing to corporations not just of the provision of government services but of governance (government decision making) itself.
Authority to set policy for the Internet has been handed over by the USA Federal government to a private California corporation. In ICANN’s corporate world, corporate bylaws have replaced laws requiring open meetings, freedom of information, and due process. And arbitration by other private corporations has replaced law enforcement and appellate justice in the world of fee-based corporate “justice”.
As a private corporation, ICANN is exempt from open meetings laws, public records laws, the Freedom of Information Act (FOIA), and other “sunshine” laws used by journalists and the public to obtain information about government policy-making activities. Journalists’ and others’ ability to observe and report on entities like ICANN, to which policy-making authority has been delegated, depends instead on enforcement of contracts and bylaws that guarantee access.
I have attempted to use ICANN’s bylaws on transparency, and ICANN’s contracts with the government of the USA promising transparency, to observe meetings and obtain documents. When my requests for access were denied, I have attempted to use ICANN’s bylaws on oversight, and ICANN’s contracts promising the government of the USA that ICANN would provide such an oversight mechanism, to obtain an “independent review”, by a panel of arbitrators, of whether ICANN has complied with the commitments to transparency in its own rules and contracts.
In this context, my challenge as a journalist to ICANN’s secrecy and failure to follow its own rules has become the test case of press freedom and democracy in the brave new world of governance by corporation. Its results should be, and I think will be, closely watched as evidence of whether any sort of justice, accountability, or transparency is possible in such a framework.
As a secondary but significant matter of concern for the rights and independence of journalists, ICANN has delegated to airlines and the travel industry the authority to determine which journalists reporting on those industries are legitimate. “Aviation media” are eligible to register .aero domain names, but only if they “promote” the industry. No critics or muckrakers need apply. SITA promised ICANN that there would be a policy-making body for .aero on which aviation media would be represented, but SITA instead has taken it upon itself to “represent” journalists, and ICANN has allowed this breach of contract. Similarly, “travel media” are allowed to register in .travel, but only if they are deemed to be legitimate by TTPC, an industry body in which they have no representation.
And ICANN itself has demonstrated the problems in allowing the subject of the reporting to decide who to allow to report on its activities, refusing to recognize me as a journalist, because of my critical and investigative reporting.
As for the specific top-level domain names that ICANN has created for the travel industry, why should anyone care that the Internet is being hijacked by commercial interests?
The issue is, in part, whether the Internet will be governed democratically or ruled by money and back-room cronyism. It’s also about whether we should have top-level domain names for sectors of activity — open to everyone with a stake in those activities — or solely for industries and commercial interests. Will the Internet travel namespace be a virtual community of travellers, or a domain where — as in a speech I heard a while back by the then-president of one of the largest Internet travel agencies — “interactivity” and “participation” will be limited to the opportunity to click on the “buy” button?
Under the scheme that has been approved and allowed to be put into effect, travellers have no say in .travel or .aero policy making, and only commercial users of the Internet are permitted in .travel — no travel journals, photos, or other personal or non-commercial uses.
The sponsors of this proposal say the best way to protect consumers is to give control to the travel industry. I don’t think so. Neither did the consultants hired by ICANN to evaluate the .travel and other sTLD applications, who twice recommended against approval of .travel under industry-only sponsorship — first in 2000 and again in 2004 — for almost exactly this reason.
All of this, I have come to realize, is typical of how ICANN operates. ICANN has no organizational culture of respect for process or procedural rules, and no appreciation for the fact that “democracy” is a process. A benevolent despot, or an enlightened technocrat, is not a democracy, no matter how wise or popular their decisions.
ICANN has bylaws that require openness and transparency (the counterpart in the ICANN context of the Freedom of Information Act and similar laws) and that require ICANN to have specified accountability and review mechanisms (the counterpart in the ICANN context of the U.S. Administrative Procedure Act). Those provisions were included in ICANN’s bylaws as a condition of the U.S. government’s willingness to delegate decision-making power to ICANN, under contracts between ICANN and the U.S. Department of Commerce that require ICANN to operate in accordance with those bylaws. Perhaps more importantly, those provisions were included in ICANN’s bylaws because of the belief that transparency, accountability, and due process will result in better decisions.
As a journalist and a believer in democracy, I think that those who wrote and approved ICANN’s bylaws were right. Democracy, or the lack therefo, lies in the process, not just the results. But many ICANN insiders and observers disagree. They believe that “better” decisions (where “better” is often measured by their personal or corporate financial interest) will result if meetings are held behind closed doors, documents are kept secret, or decisions are discussed on private e-mail lists before the pro forma public meetings. Other people simply don’t care about the process, and base their opinion of ICANN solely on whether they agree with the outcomes.<\p>
Even if it were correct (which I don’t think it is), belief that decision-making would benefit from closed meetings or from consideration of documents and records withheld from public disclosure is, at most, an argument that might be made in favor of a proposal to amend ICANN’s transparency bylaws, not a valid justification for ICANN to ignore its cureent bylaws.
In practice, as result of this attitude that only the final decision matters, ICANN can’t even be said to “make up the rules as it goes along”. Rather, ICANN has no rules. ICANN feels free to ignore anything it has previously said, including the general procedural rules in its bylaws and specific procedures laid out for particular decisions. The defining characteristic of the ICANN process is that all decisions are ad hoc.
In this context, anyone like me who suggests that ICANN has any duty to comply with its own (or any other) rules, or who tries to evalaute ICANN’s compliance wuith the specific terms of its own rules, appears crazy. The fact that what I am doing is so unusual as to easy to characterized as “crazy” is a measure of how alien transparency, accountability, or democracy are to ICANN’s behavioral norms.
As I said in 2001 in my introduction to The Practical Nomad Guide to the Online Travel Marketplace:
Travel and the Internet go hand-in-hand. That should be no surprise: the movement of information has always paralleled the movement of people, power, and money. Historically, global electronic networking actually was pioneered by the travel industry long before the Internet existed. Today, travel reservations, especially airline ticket sales, are the leading edge of e-commerce.
The Internet might seem to provide an alternative to travel, or to render it unnecessary. But the reverse has been the case. Those who predicted that the Internet would be the death of travel … have been proven dead wrong. Travel … is the largest seller on the Internet. The present Internet age is distinguished not just by ease of communications, but by personal mobility and opportunities for travel unprecedented in human history. And for more and more people, long distance communications and travel are part and parcel of the same style of life, business, and leisure.
E-mail, instant messaging, electronic chat rooms, Internet discussion groups and mailing lists, Internet phone calls and video conferences, and of course Internet personal advertisements and virtual match-making services haven’t replaced face-to-face meetings and personal experience of distant places. Rather, Internet-fueled globalization of human and business relationships has driven the need and desire for more people to travel further more often, for business and pleasure alike.
Given this context, it’s not surprising that some of the first proposals to ICANN for new top-level Internet domains were related to travel. And from the start, my Web site (including the section of my blog on Internet domain names) and my e-mail newsletter have provided in-depth investigative and consumer reporting on these proposals and their implications for travellers who use the Internet.
The problem isn’t with the basic idea of travel-specific Internet domain names, which I have consistently supported.
The problem is that Internet governing body ICANN has handed over control of the Internet travel namespace to front groups for the interests of airlines and the travel “industry”, to the exclusion (and the detriment) of the travelling public and “civil society” organizations and communities concerned with travel. And my attempts to investigate and report on this story have led to a major test case of the right of public access to ICANN decision-making, and of whether there is any oversight or accountability of ICANN to independent review.
The Internet was originally controlled by the government of the USA. Beginning in 1998, much of the USA government’s authority to set policy and make decisions about the Internet was delegated (through a series of contracts of dubious validity), to ICANN, a California non-profit corporation created in 1998 specifically to enable the privatization of Internet governance. ICANN itself is governed (under the laws of California and the USA, ICANN’s corporate charter, and its bylaws) by a Board of Directors.
(This isn’t the place for a complete history of ICANN and its relationship to the Internet and the government of the USA. Unfortunately, many of the organizations, acronyms, and terminology referred to here and in my correspondence with ICANN are likely to be unfamiliar to readers who haven’t been following ICANN, Internet governance, and domain name politics. If you are new to this issue, see these background articles for an introduction to ICANN’s history, activities, and procedures, and some of the legal issues they raise.)
In 2000, ICANN issued a public request for proposals, for a US$50,000 non-refundable fee per application, from would-be sponsors of new top-level Internet domain names (TLD’s) to be added to the existing TLD’s like .com, .org, .edu, .mil (USA military), .int (international organizations), and so forth.
Two of the 44 proposals were related to travel. Both were from organizations of airlines: the Société Internationale de Télécommunications Aéronautiques (SITA), a cooperative owned by member airlines (originally created to provide shared electronic communications and reservations services for its members) proposed a .air TLD for the air transportation industry, and the International Air Transport Association (IATA), proposed a .travel TLD.
Almost all of the world’s airlines are members of IATA, which generally describes itself as a “trade association”. It is more accurately described as a cartel, since it openly engages in the fixing of certain “industry fares”, and airlines in the USA require special legal exemption from USA anti-trust law (which they have been granted by Congress) to participate in IATA “traffic conferences”.
Both SITA’s proposal for .air and IATA’s proposal for .travel were for “sponsored” TLD’s. An “unsponsored” TLD like .com is open to anyone who wants to sue it for a legal purpose. But for a “sponsored” TLD, ICANN explicitly delegates to the sponsor of the TLD the right to control who is, and who is not, allowed to register domain names in that TLD, and which domain names they are allowed to register.
The consultants hired by ICANN to evaluate the TLD applications in 2000 reported that, “The evaluation team cannot conclude, at this juncture, that IATA has demonstrated that it is or would be broadly representative of the diverse global travel industry.”
Vocal objections to IATA’s proposal to sponsor .travel were also raised by those travel agents who work for consumers rather than travel suppliers, and who feared that having their Internet domain names controlled by the airlines would give airlines a means to force travel agents to put airlines’ interests ahead of consumers’ interests — or lose their .travel domain names.
For these reasons, IATA’s application for .travel was, quite rightly, passed over by ICANN’s Board of Directors when it was considered in late 2000. The airlines that make up IATA aren’t representative of the diversity of the travel industry, much less of all those outside the travel “industry” with an interest in travel.
SITA’s application was approved, although ICANN changed the name of the TLD from .air (as proposed by SITA) to .aero.
In its application to ICANN, which I supported, SITA promised, explicitly that .aero and its policy-making would be open to the aviation industry, its customers, and its critics alike; that it would be operated for the benefit of the entire community of entities with an interest in air transportation (not just the industry providing air transportation); and that consumer advocates, the aviation media, and unions of aviation workers would be represented in the body SITA would create to set policies for .aero (such as who would be allowed to register .aero domain names, and which names they could register).
ICANN’s bylaws require it to “operate to the maximum extent feasible in an open and transparent manner”. Instead, following approval of .aero by ICANN’s Board of Directors, the rules for .aero were drafted by ICANN staff in secret meetings with SITA. These rules differ radically from the original proposal, in that only suppliers of travel services, not consumer advocates, are allowed to register .aero domain names. Consumers and travellers aren’t welcome. Members of the “aviation media” can register .aero domain names, but only if they “promote” air transportation. No critics or muckrakers need apply.
SITA’s chief negotiator with ICANN in those secret sessions, Rosa Delgado, told me in an interview just after the agreement was made public (which I reported at the time in my newsletter and on my Web site, and later in my comments to the public forum during ICANN’s June 2003 meeting in Montréal), that ICANN’s chief negotiator, Louis Touton, not only drafted most of the terms of the sponsorship agreement and forced them on SITA, but insisted on excluding some groups of stakeholders from eligibility to register .aero domains in order to be able to put them in .travel, even though Ms. Delgado and SITA “fought really hard” to argue that they were included in the .aero proposal as originally approved by ICANN’s Board of Directors.
The secretly-negotiated agreement for the creation of .aero under SITA’s sponsorship, with the new and narrower terms of eligibility, was made public in late 2001 under a strange procedure that allowed it to go into effect “without objection” by ICANN’s Board of Directors and without any Board debate or public hearing. I formally requested that ICANN’s Board of Directors reconsider this decision, but that request was denied.
At that time, ICANN’s bylaws required it to have “policies and procedures for independent third-party review of Board actions alleged by an affected party to have violated the Corporation’s articles of incorporation or bylaws”, as I believe it did in the secret negotiations with SITA on the .aero agreement. If ICANN had actually had such an independent review body in place, I would have requested that it review the .aero agreement and the process by which it was adopted. But ICANN never appointed the independent review panel required by the bylaws then in effect. With no further appeal possible, .aero went into use in early 2002.
SITA promised ICANN that it would establish open, participatory decision-making procedures for .aero. But SITA has reneged completely on those promises, as I pointed out in my comments in the public forum during ICANN’s March 2003 meeting in Rio de Janeiro, and in my 2006 comments on SITA’s pending application for renewal of its agreement with ICANN to sponsor .aero. SITA has abrogated to itself the task of “representing” airline passengers, aviation workers and their unions, the aviation media, and most other stakeholders in air transportation. And policy for .aero has been determined entirely in secret.
Despite my having repeatedly and directly brought these issues to the attention of ICANN and its Board of Directors, ICANN has done nothing to enforce its contract with SITA, or to sanction SITA for noncompliance.
The initial contract delegating authority over .aero was for a 5-year term, from 17 December 2001 through 17 December 2006. SITA applied to renew the sponsorship agreement, and that renewal application is now under consideration (in secret, of course, like most ICANN decision-making) by ICANN.
I pointed out in formal comments to ICANN that the .aero agreement had been violated, and should not be renewed. In response, response, SITA claimed that no individual stakeholder has ever contacted the (unnamed) person SITA now claims to have designated to represent them in .aero decision-making. Scarcely surprising, since it is impossible to determine from SITA’s Web site or any other public source who that purported representative is, or even that they exist, or what issues or proposals for .aero policies or decisions are under consideration.
On 30 June 2006, ICANN’s Board of Directors decided that my comments did not “raise a substantial question about whether renewal of SITA’s agreement would be in the best interest of the sponsored TLD community and the global Internet community”, and voted unanimously and without debate to authorize ICANN’s staff “to enter into negotiations with SITA for a renewal of the .AERO Sponsorship Agreement.”
The original sponsorship contract would have required a formal review by ICANN’s staff, and a further opportunity for public comment, if my comments or any others had raised such a “substantial question” — regardless of how ICANN’s Board of Directors or staff believed that question should have been answered. In the absence of any debate, it’s unclear from the transcript whether the members of the Board of Directors understood that the issue properly before the Board was whether the comments raised, as a threshhold showing, a “substantial question”, and not how to answer that question. Nor is there any indication of what they would have considered to constitute a “substantial question”.
The delegation by ICANN to SITA of authority over .aero expired with the expiration of the original 5-year contract 17 December 2006. In June 2006, in response to my comments in the public forum on ICANN’s registry continuity plans, ICANN revealed that they had secretly “granted” an amendment and extension of the agreement for SITA to sponsor .aero. But any such secret “grant”, without the procedures required by the Bylaws (notice of the proposal, public comment, notice of the Board of Directors agenda, Board vote, etc.) is null and void, and should be reconsidered “de novo”, according to the procedures required by the Bylaws.
In December 2008, following secret negotiations with SITA, ICANN finally posted a proposed new agreement providing for “.aero” to be transferred to a different one of SITA’s several corporate incarnations, this one a Delaware (USA) corporation. The proposal was for a 10-year agreement, with a provision for presumptive renewal in perpetuity. The only public comments were in opposition to the proposal: my objection on the basis of lack of transparency of the process, and an objection to the “presumptive renewal” clause. No public support was expressed for the proposal. Nevertheless, ICANN’s Board of Directors approved the new “.aero” agreement unanimously, by voice vote, at another of their telephone “meetings” (closed to the public and the press, in violation of their transparency bylaw) on 3 February 2009.
The .aero TLD remains little used, even by the airlines who backed the proposal. But ICANN’s approval of “aero” set the precedent for the handover of travel-related or sector-specific sponsored TLD’s to the control of industry, to the exclusion of public or civil society interests. That precedent was eventually followed with .travel, although it took several more years and required at least superficial concessions by IATA and a change of formal sponsorship of the proposal.
ICANN’s public position was (and still is) that the TLD applications passed over in 2000, including IATA’s application for .travel, were not “rejected” but remained pending. To answer the objections from travel agents, ICANN’s consultants, and ICANN’s Board of Directors as to IATA’s ability to represent .travel stakeholders other than airlines, IATA began taking steps to create a new front group to sponsor .travel that would at least appear to represent a broader range of travel-related businesses.
Following a meeting 26 November 2001 at IATA headquarters in Montréal, IATA announced the formation of a Travel Partnership Corporation (TTPC), ostensibly to ensure that .travel is operated for the benefit of travellers. But it was all a sham; the only real purpose of the “partnership” was as a front for the interests of IATA, to make IATA more acceptable to ICANN. Only one of the 25 members of the .travel governing board is supposed to be a consumer representative, none were appointed to the initial board, and, as of 2006, none has yet been appointed to the board.
After I called IATA on its role in creating the Travel Partnership Corporation, IATA and TTPC shifted to working through a joint venture with the Tralliance (for “travel alliance”) Corporation. In 2003-2004, when ICANN issued a request for a second round of proposals for new sponsored TLD’s, the Tralliance Corp. and TTPC submitted their own new application to sponsor a .travel TLD.
Tralliance was supposedly an independent company, but its initial staff included former key staff of IATA’s .travel project as well long-time cronies of key personnel at ICANN.
In February 2003, Tralliance concluded a secret deal (not disclosed in its application to ICANN for .travel, and not made public until much later, after ICANN’s Board of Directors had already given the first stage of approval to its application for .travel) for a sale of Tralliance Corp. to TheGlobe.com (also known as Voiceglo.com) — contingent on ICANN approval of its .travel application.
It’s not clear what relationship TTPC and Tralliance/TheGlobe.com/Voiceglo.com have today with IATA. (They do have some sort of contract related to .travel, but it remains secret.) But the fix had been in with ICANN for years with respect to .travel.
As was described to me by Rosa Delgado, SITA’s principal negotiator with ICANN for .aero, a back-room deal existed was made at least as early as 2001 by ICANN staff and their industry cronies to approve IATA’s sponsorship of .travel in the next round of new top-level domains. In late 2001, Ms. Delgado told me ICANN staff (who are, by all accounts, the real decision makers) were already talking about the award of .travel to IATA as a fait accompli — even though at that time ICANN’s evaluation team had recommended against giving .travel to IATA, and IATA’s application for .travel had officially been passed over and denied reconsideration by ICANN’s Board of Directors.
When ICANN issued a request for a second round of proposals for more new TLD’s in 2003-2004, the terms of the request were such as to favor IATA and its front groups, Tralliance and TTPC, on every point. Was that coincidence or conspiracy? Who knows, since the terms of the request for proposals were drafted in secret by ICANN staff, in consultation with we know not whom.
Tralliance and TTPC, as expected, filed a new application in March 2004 to sponsor a .travel TLD. In an elaborate shell game, the for-profit Tralliance Corp. asked that .travel be created and delegated to them, but with a tenuous (and probably powerless) relationship to the “non-profit” TTPC providing a veneer of greater legitimacy. On its face, this application was entirely independent of IATA’s application for “travel”, which was still officially “pending” although not approved. There was no mention in the public portion of the Tralliance/TTPC application to ICANN of the secret 2002 deal between IATA’s and the TTPC, or the February 2004 deal, less than a month before their application to ICANN, between Tralliance and TTPC. (ICANN still hasn’t responded to my questions as to when ICANN itself learned of these secret agreements between the ostensibly “independent” parties involved in the two .travel proposals.)
I objected to the 2004 .travel proposal, as others did, on the grounds that Tralliance and TTPC were no more representative than IATA (or any other industry body) of travellers, journalists reporting on travel, or the general public, and that the proposal included none of the provisions for openness, transparency, due process, and public participation in decision making required by ICANN’s rules.
Although my request to observe their meetings (as would have been feasible, and as I was entitled to do under ICANN’s bylaws requiring them to “operate to the maximum extent feasible in an open and transparent manner”) was ignored, the consultants ICANN hired to evaluate the applications agreed with my substantive objections, at least on my first point: ICANN’s consulting evaluators “were not persuaded that .travel met sufficient of the selection criteria to warrant the application proceeding”:
While the applicant does a very thorough job of defining a community, we did not believe that the community is consistent in breadth with the name string .travel. Rather, the community defined is limited to the commercial providers of travel services…. Hence, the delegation of the entire sTLD namespace .travel by ICANN to this Sponsor would not result in appropriately representative policy formulation…. The application and supporting material indicate broad support from the travel industry… However, we are concerned … that even this breadth of [industry] support is not sufficient to sustain the designation .travel, which has both commercial and non-commercial aspects…. The stated function of the TLD is to serve the global travel industry. However, the implication of the chosen namestring .travel extends well beyond commercial travel services. For example, … the applicant indicated that individuals with an interest in travel would be excluded from registration, as would providers of travel-related products. While there is reason to consider such potential registrants as outside the of the travel services industry, they certainly fall within the general notion of “travel”…. Furthermore, the public comment forum is particularly ambivalent about support for .travel, most notably because of lack of public interest representation … and whether it is representative of that community.
ICANN kept their “independent” evaluators’ report and recommendation against awarding .travel to Tralliance/TTPC secret for more than a year. Meanwhile, ICANN’s Board of Directors, for reasons that remain entirely secret, decided at a so-called meeting (closed to journalists and the public, in violation of their bylaws on transparency) in October 2004 to overrule their consultants’ recommendation and authorize ICANN’s president and general counsel to work out the details of ICANN’s delegation of .travel to Tralliance/TTPC in another series of closed negotiating sessions (also in violation of ICANN’s bylaws on transparency).
That agreement was duly and secretly negotiated, and presented at the last minute (without the advance notice and public comment period required by ICANN’s bylaws, and with portions of its terms still being kept secret) for final approval by ICANN’s Board of Directors at their meeting in Mar del Plata, Argentina, in April 2005.
I didn’t (and still don’t) know what was really going on behind the scenes, but it was clearly not in the interests of travellers, consumers, or the public.
As the secret negotiations with ICANN moved toward completion, I continued to report on what made it into the public record, and to ask questions about:
ICANN revealed a further web of secret contracts between IATA, Tralliance, and TTPC on 2 April 2005, less than a week before ICANN’s final decision on .travel, when ICANN released a contract between Tralliance and the TTPC as an appendix to the (secretly-negotiated) draft agreement between Tralliance and ICANN for sponsorship of .travel. But ICANN continued to ignore most of my questions and requests for documents and access to meetings, going to increasingly ludicrous lengths to keep me out of their press conferences.
In detailed comments to ICANN’s public forum on 7 April 2005, I reiterated the specific requests I had made, and which ICANN had ignored, for access as a journalist and a member of the public, in accordance with ICANN’s bylaws on openness and transparency, to ICANN meetings and documents. I pointed out my exclusion from ICANN’s press conference (also in violation of ICANN’s bylaws), and ICANN’s failure to provide the advance notice, explanation of the reasons for the proposal, and 21-day public comment period on the proposed .travel agreement (all also as required by ICANN’s bylaws). I advised that, if ICANN’s Board of Directors proceeded to consider or approve the .travel agreement during its meeting the next day, I would request that any such “decision” be referred to an independent review panel — as also provided for by ICANN’s bylaws — charged with determining whether the decision had been made in a manner consistent with ICANN’s bylaws on openness and transparency.
I wasn’t surprised that ICANN’s Board of Directors ignored me, and proceeded on 8 April 2005 to approve an agreement (portions of which were kept secret) to create a .travel TLD and delegate authority over it to Tralliance and TTPC. ICANN shouldn’t have been surprised that, as I had said I would, I immediately submitted a formal request to ICANN that it refer its decision on the .travel agreement to an independent review panel, in accordance with its bylaws. I also requested — as also provided for by ICANN’s bylaws — that ICANN’s Board of Directors (which was still in session in its meeting when they received my request) stay their decision pending the recommendation of the independent review panel.
ICANN’s bylaws require it to “operate to the maximum extent feasible in an open and transparent manner”. This requirement has been ignored in the process of ICANN approval of .travel, and this failure to comply with its own procedural requirements for openness and transparency is the basis for my request for independent review of ICANN’s decision on .travel.
In a separate set of requests, I’ve also exhausted ICANN’s internal procedures for review of its decisions by ICANN’s pretender to the title of ombudsman, and by a committee of the ICANN Board of Directors. The Committee on Reconsideration secretly denied my request on the basis of a secret recommendation by the person claiming to act as Ombudsman (despite never having been properly appointed), in violation of ICANN’s rules requiring the committee to base its decisions solely on “the public written record” and in a demonstration of gross professional malfeasance by the Ombudsman in deliberately (and successfully) attempting to influence the committee to take this improper action.
Since the decision on .aero in 2001 (at which time ICANN’s bylaws required ICANN to have its own Independent Review Panel, which ICANN never actually appointed), ICANN has amended its bylaws to require that “ICANN shall have in place a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws”. But so far as has been publicly disclosed, ICANN does not in fact have in place any such process.
ICANN has never publicly acknowledged or acted on my request for a stay. Instead, they ignored my request entirely while they did everything possible to put their questioned decision into effect, so that it would be as hard as possible to undo, even if that’s what the independent review panel eventually recommends.
On 5 May 2005, ICANN and Tralliance signed off on their agreement for the creation and sponsorship of .travel (portions of which still remain secret), just a week later on 12 may 2005 TheGlobe.com purchased Tralliance — exercising its option contingent on the agreement with ICANN.
TheGlobe.com/Voiceglo.com has been kept from bankruptcy only by a series of convertible loans from “E & C Capital Partners II, LLP”, a partnership whose principals Michael Egan and Ed Cespedes are also the principal owners of Florida-based tour operator Certified Vacations. By “calling” those notes and converting them to stock, Egan and Cespedes could at any time take control of TheGlobe.com/Voiceglo.com, its subsidiary Tralliance Corp., its financial captive the Travel Partnership Corp., and (subject to ICANN’s approval, if ICANN asserted its contractual right to approve the transfer of control of the domain) the .travel domain.
On 27 July 2005, the .travel TLD was added to the root-zone files, and registration of .travel second-level domain names launched on 3 October 2005.
So far as I can tell, ICANN took no action whatsoever on my request for independent review and stay pending independent review until almost 8 months after my initial request. In December 2005, I went to Vancouver to report in person on ICANN’s annual meeting, which was ICANN’s only public meeting in North America in more than 2 years. Only then, after I “stood up at the public forum and shamed them into responding”, as one observer put it, did ICANN agree that, “we will refer your complaint to an Independent Review Panel”, as they were required to have done when they first received it.
Six weeks after this public “agreement”, ICANN’s General Counsel sent me a bizarre letter saying that my request wasn’t worthy of being forwarded to an Independent Review Panel.
In response, I once again asked ICANN to tell me what, if any, procedures they think they have adopted for independent review of their decisions, in accordance with the requirements of their bylaws.
ICANN didn’t respond to those questions. Instead they went to extremes to exclude me from the press conferences during their meeting in New Zealand at the end of March, 2006. (Among other things, they claimed that the Internet isn’t a legitimate medium for journalism about the making of Internet policy!) But in response to an unprecedented showing of public support for my request for independent review, the Chairperson of the Board of Directors, Dr. Vint Cerf of Google, put forward a novel and unsupported claim that a decision made during an earlier secret telephone conference of ICANN’s Board, based on a secret proposal, authorizing a contract which (if it exists at all) remains secret, had fulfilled ICANN’s obligation under its Bylaws to designate an independent review provider (IRP) and approve IRP procedures through a maximally open and transparent, bottom-up, consensus process of policy development.
Dr. Cerf “recommended” that I contact the International Centre for Dispute Resolution (ICDR), to “initiate” my request for independent review. (Which request I had already initiated, in actuality, almost a year earlier.) ICDR isn’t really so international at all: it’s an operating division of the American Arbitration Association. And none of its standard procedures would fit the requirements of ICANN’s Bylaws for independent review.
Moreover, when I contacted ICDR for comment, they said they had never heard of ICANN, and they have no procedures applicable to independent review of decisions by ICANN. And in order to make a request to them for arbitration, I’d have to provide them with a contract which, if it exists at all, ICANN has refused to provide me, in spite of a year of explicit requests.
In June 2007, ICANN posted as a fait accompli links to ICDR as the purported Independent Review Provider, and new procedures for independent review, as well as proposed new rules for (non)disclosure of information. But there was no mention of how, when, or by whom these newly-posted policies and procedures had been adopted, and no indication that the decision-making process satisfied the requirements of ICANN’s Bylaws.
As I pointed out in comments and a follow-up, ICANN’s “Documentary Information Disclosure Policy” (DIDP) fails to satisfy the requirement of ICANN’s Bylaws for the maximum extent feasible of transparency. ICANN published that policy without a formal policy development process, and I have requested that, if ICANN considers it to be a policy, it be referred to an independent review panel charged with determining whether it is consistent with ICANN’s Bylaws. That request has, of course, been entirely ignored.
But in the meantime, to test that policy, I made renewed formal requests in 2009 for any records of (1) ICANN decisions to designate an independent review provider or approve independent review policies or fees, and (2) appointment by ICANN of an Ombudsman.
With regard to independent review, ICANN responded in April 2009 with (1) an explicit admission that ICANN has a secret side agreement with ICDR, its claimed “independent” review provider (which agreement, according to ICDR’s rules, I would have to provide a copy of in order to initiate arbitration by ICDR), and an explicit categorical refusal to disclose that secret contract, and (2) an explicit admission that ICANN has not, in fact, conducted any policy development process for independent review since the independent review Bylaws were amended in 2002, and has no independent review policies:
ICANN/ICDR Agreement: … ICANN does not make public its individual vendor contracts. Further, individual contracts of this type are protected from disclosure under the balancing test outlined within the DIDP…. Allowing public disclosure will impede ICANN’s ability to negotiate and enter into contracts with persons and entities not wishing to make their business dealings open to the public, which will greatly harm the organization in running its business. Moreover, it is hard to identify what public interest would be served by the disclosure of the contract. This harm/benefit analysis is sufficient justification for nondisclosure under the DIDP. ICANN can, however, confirm the existence of an agreement with the International Centre for Dispute Resolution (“ICDR”) as the Board-designated Independent Review Panel Provider.ICANN does not currently maintain any “policies” relating to the Independent Review process…To be clear, since 2002, ICANN has not undertaken any policy actions nor adopted any policies pursuant to Article III, Section 6 of ICANN’s Bylaws to govern the Independent Review Process or the designation of the Independent Review Panel Provider.
With regard to appointment of an Ombudsman, ICANN responded in May 2009 that, “Ombudsman was appointed on November 1, 2004, with the appointment consistent with ICANN’s Bylaw V.” Since that article of the Bylaws requires that an Ombudsman be appointed by the Board of Directors, and since there was no notice or minutes of a Board meeting on that date, such an appointment could not possibly have been consistent with those Bylaws. ICANN’s Bylaws also provide for any initial appointment of an Ombudsman to be for 2 years, subject to renewal by the Board. ICANN didn’t respond at all to my request for information about renewal of an Ombudsman’s appointment. But a 2-year appointment made in 2004 would, of course, have expired in 2006 unless it had been renewed.
More than five years after my original request for independent review, I still don’t know when, if ever, ICANN will actually designate an independent review provider, or put in place procedures for independent review of whether their decisions comply with their Bylaws.
In the meantime, TheGlobe.com / Tralliance is almost bankrupt.
Even supporters of privatization of Internet governance have criticized ICANN’s failure to act on my request or allow any independent review of its decisions. Here’s what Network Solutions, LLC, said about it in its formal comments to the USA Department of Commerce, 7 July 2006:
To date, however, there is no evidence that this Independent Review procedure is effective at all inasmuch as this mechanism does not appear to have been allowed to work by ICANN, essentially obviating its value as a realistic tool for any challenge of a Board decision. For example, travel expert Ed Hasbrouck initiated an Independent Review in April 2005…. ICANN did not act on Hasbrouck’s Independent Review request for 8 months. In a January 2006 letter, ICANN General Counsel John Jeffrey stated that earlier e-mail communications from Mr. Hasbrouck did not “meet the guidelines” for a formal IRP…. ICANN has failed to demonstrate that its [independent review] process is viable. Thus, the amended MoU should include terms that require … an actual venue for challenging Board decisions. ICANN should be required to institute a formal, user-friendly process for seeking an [independent review]. These changes should include enforceable timelines by which ICANN will respond to and provide a decision on an [independent review] request.
One corporation with a financial stake in an ICANN decision, ICM Registry, has chosen to accept ICANN’s after-the-fact and procedurally-improper “decision” to designate the ICDR as the Independent Review Provider.
In an exchange of comments on ICANNwatch.org with Stuart Lawley, the CEO of ICM Registry’s, I said this about his company’s request:
Stuart Lawley says, “I think we are actually the first entity to actually file an Independent Review Petition. I may be wrong but I think you simply indicated to ICANN that you wanted one and I guess they just pointed you to the ICDR and sat and waited for you to file.”
This is not correct. I filed a formal request with ICANN. (ICANN didn’t “point me to the ICDR”. They ignored me for months, than promised to act on my request, then didn’t act.) ICANN’s Bylaws provide that an IRP request be filed with ICANN. ICANN claims to have adopted procedures for IRP requests to be filed directly with ICDR, but (1) ICANN has never actually approved such procedures in accordance with the rules in ICANN’s Bylaws for such decisions, and (2) even if they had, they would not comply with the Bylaws, which provide for filing of IDP requests with ICANN.
As a business, Mr. Lawley and ICM Registry are, understandably, more concerned with a favorable decision that would allow their business plans to move forward than with the procedures. They may choose to accept ICANN’s (procedurally improper) “decision” to designate ICDR, and may choose to follow procedures (not in accordance with ICANN’s Bylaws) for filing directly with ICDR, etc. But their willingness to follow those procedures does not legitimate those procedures, negate the claims of other pending IRP requesters, or require others to follow them rather than insisting that ICANN actually bring itself into compliance with the IRP Bylaw by (1) conducting a proper policy development process to designate an IRP provider and approve IRP procedures, and (2) acting on the outstanding IRP requests.
Fundamentally ICM Registry’s objection is to the substantive outcome of ICANN’s decision, not the process. The IRP request relates to the process, but its main goal is to overturn the substantive decision. Ultimately, ICANN would be able to accommodate such an IRP ruling without fundamental or procedural change.
In light of ICM’s commercial goals, the cost of an independent review, even at US$1 million, is small compared to the profits if the IRP rules in ICM Registry’s favor. So ICM Registry has little reason to object to the establishment of IRP procedures and fees unaffordable to individuals or public interest advocates.
Fundamentally, my objection is to the process, and my goal as a journalist is change in ICANN’s process with respect to openness and transparency. This is much more threatening to ICANN, since a ruling in my favor by an IRP would require major change in how ICANN operates. And I cannot afford, and would not readily “agree” to, expensive procedures. My request is thus much more threatening to ICANN’s established secrecy. Perhaps that is why ICANN has been unable to conduct the kind of discussions with me about my IRP request that it has apparently been willing to have with ICM Registry.
Of course, by any interpretation, ICANN has violated its Bylaws by failing to post the ICM Registry request, or any of the other IRP requests, on the ICANN Web site.
After I made this public comment, ICANN posted some documents related to ICM Registry’s request, but nothing related to my request or any of the others. As I have pointed out again in more recent comments to ICANN ICANN’s agreement with ICM Registry to submit a particular matter to a particular arbitration body, under particular rules, by mutual consent, did not satisfy the requirements of ICANN’s Bylaw, and do not relieve ICANN of its obligation to comply with its Bylaws and to act on my request and the other pending requests for independent review. For what it’s worth, though, the panel of three arbitrators agreed upon by ICANN and ICM Registry eventually declared that ICANN’s actions in relation to ICM Registry were not in accordance with ICANN Bylaws.
Meanwhile, despite public objections, ICANN has amended its Bylaws (by voice vote at a closed telephone “meeting”, as usual) to abolish the Committee on Reconsideration and transfer its responsibilities to a new “Governance Committee” — all of which does nothing to address the problems in the reconsideration process. A few months later, ICANN proposed to rewrite its independent review Bylaws yet again — but still, as I pointed out, without any promise that it would actually implement its Bylaws or take up the outstanding requests for independent review.
Most recently, in June 2010, ICANN posted a page of what it said were its answers to my “Recurring Questions Regarding the Independent Review Process”. In these “answers”, ICANN:
But I haven’t given up. This is a work in progress. ICANN tries to ignore me, but I’m not going to let the ICANN parade pass by without holding up a sign that says, “The emperor has no clothes.” (See my blog and my articles from “ICANN Watch” for the latest updates I haven’t had time to add to this page.)
Much of the jargon in the articles linked below may be unfamiliar to readers who haven’t been following ICANN and domain name politics. What’s needed, perhaps, is an “Internet Governance for Dummies”, but so far as I know it doesn’t yet exist. I would welcome reader suggestions for other background references.
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