This is a request for the ICANN's Independent Review Panel to review ICANN's rejection of Reconsider Request 99-4.
This is a submission to ICANN's Independent Review Panel under section 6.1 of ICANN's Independent Review Policy on the grounds that ICANN's "Board has acted or failed to act in a manner contrary to the Corporation's Articles of Incorporation and/or Bylaws."
I have been materially affected by the contested action and I have exhausted ICANN's internal reconsideration process.
During the late hours of of November 3, 1999 the final drafts of a package of agreements were worked out between Department of Commerce, Network Solutions Inc., and ICANN regarding the the Internet's Domain Name System. The next morning, November 4, 1999, in a meeting that began at 10am, the ICANN Board of Directors adopted this package of agreements.
These agreements were signed on November 10, 1999.
This package is visible on the ICANN web site at: http://www.icann.org/nsi/nsi-agreements.htm
Neither the drafts nor any of the final agreements were ever submitted to the ICANN Domain Name Supporting Organization (DNSO) for its consideration.
I submitted a timely Request for Reconsideration on November 17, 1999 complaining that the failure to involve the DNSO was a violation of ICANN's by-laws. The request was assigned number 99-4.
My request is visible on the ICANN web site at: http://www.icann.org/committees/reconsideration/auerbach-request-17nov99.htm
Nearly six months later, on May 2, 2000 I received an e-mail from the Reconsideration Committee informing me of the committee's rejection of my request.
This e-mail is visible on the ICANN web site at: http://www.icann.org/reconsideration/rc99-4.htm
On May 2, 2000 the board adopted the Committee's rejection.
The board's action is visible on the ICANN web site at: http://www.icann.org/minutes/prelim-report-04may00.htm#00.30
It is unknown on what date the May 2, 2000 board meeting minutes were published.
The Reconsideration Committee ruled against my Reconsideration Request. That ruling should be overturned for the following reasons.
The committee relies on ICANN's Bylaw Article VI, Section 2(g) as a means by which the board may bypass the obligations imposed by Bylaw Article VI Sections 2(b), 2(c), 2(d), 2(e), and 2(f).
The committee argues that:
This provision [Bylaw Article VI, Section 2(g)] confers on the Board the ability to act when necessary or appropriate to promote ICANN's purposes, even without a referral to one or more of the supporting organizations.
That argument is flawed.
There is a well known rule that rejects interpretations of legal documents in a way that reduces portions of that document to mere surplus.
The committee's rationale reduces Article VI Sections 2(b), 2(c), 2(d), 2(e), and 2(f) to nothing but advisory language.
The committee's rationale goes so far as to destroy the "primary responsibility" of ICANN's Supporting Organizations for matters within their respective spheres.
I submit to the Independent Review Panel that the committee's interpretation is improper. I submit that the proper interpretation is that Bylaw Article VI Sections 2(g) is merely an escape provision to cover situations not handled by the more specific rules established by Bylaw Article VI Sections 2(b), 2(c), 2(d), 2(e), and 2(f).
By-laws are rules for the corporation to follow. The ICANN board and the Independent Review Committee should not be permitted to reduce the By-laws to something that the ICANN board may follow or ignore at its whim.
Speaking of whims let us move on...
The Committee recites that the Board acted on the powers granted by Bylaw Article VI, Section 2(g).
Section 2(g) reads:
Nothing in this Section 2 is intended to limit the powers of the Board or the Corporation to act on matters not within the scope of primary responsibility of a Supporting Organization or to take actions that the Board finds are necessary or appropriate to further the purposes of the Corporation.
This section releases the limits on Board powers in either of two situations:
The committee did not deny that the Domain Name System and the agreements are within the "primary responsibility of a Supporting Organization". Thus the first of the abovementioned two situations did not occur.
In fact, the committee's report clearly states that it relies on the second of those two situations.
If one reads Bylaw Article VI, Section 2(g) one will notice the words "that the Board finds are necessary or appropriate to further the purposes of the Corporation."
In other words, before using the second situation of Bylaw Article VI, Section 2(g), the board must make a finding that the proposed action is "necessary or appropriate to further the purposes of the Corporation."
ICANN's board has never made such a finding. The matter of making such a finding has never been on ICANN's agenda nor does it appear in any minutes. And as a witness to ICANN's Board meeting of November 4, 1999, I saw no discussion of this matter nor any unrecorded finding.
In fact the first mention of the board's reliance on Bylaw Article VI, Section 2(g) appears nearly six months after the fact in the reconsideration committee's rejection.
The Reconsideration Committee stated in its rejection that:
The Committee also notes that the ICANN/NSI/DoC agreements were posted for public review and comment for over a month prior to their approval.
This is neither relevant and nor factually correct.
It is not relevant because it has no bearing whatsoever on the responsibility of the board to follow Bylaw Article VI Sections 2(b), 2(c), 2(d), 2(e), and 2(f).
It is factually incorrect because the agreement was not worked out until the late night or early morning before they were adopted.
A period of at most from midnight to 10am - the period between the completion of the draft agreements and the start of the board meeting at which those agreements were adopted - does not even come close to the "over a month" that the committee claims. To the contrary, the public had virtually no ability during those ten hours to review the documents or make comment.
Despite the reconsideration committee's assertion to the contrary, my contractual rights, present and future, have been changed by the suite of agreements entered into between ICANN, NSI, and NTIA. Those agreements impose many new conditions on domain name owners and their options for holding those names. To say that those agreements do not materially affect domain name owners, such as myself, is to trivialize the massive negative effect on stability of domain name ownership that has occured as a result of these agreements.
The committee, to its credit, did proceed to the merits of my complaint. And so should the Independent Review Panel.