Holding ICANN Accountable, A Personal Sojourn Into ICANN Dysfunction

News Review | ©2016 DomainMondo.com
Domain Mondo's weekly internet domain news review (NR 2017-06-04). This week features the DomainMondo.com Editor's personal sojourn in ICANN accountability. Next week the regular format of Domain Mondo's News Review will return.

Holding ICANN Accountable (facts, analysis, and opinion):
If there is one thing ICANN resists and hates more than advice from governments (ANY government) and even more than transparency, it must be accountability. I believe this flaw is so ingrained in ICANN's corporate culture that nothing short of "firing everybody and starting over" will ever cure ICANN of this organizational defect and trait. I remember the resistance and attempts of ICANN management and ICANN corporate to stop, control, and subvert the initial demands (spring-summer, 2014) of the "ICANN community" to add an "accountability component" to the IANA transition, something that neither the Obama administration (NTIA) nor ICANN corporate had anticipated at the time of the NTIA's IANA transition announcement in Washington, D.C., on March 14, 2014.

In the dysfunctional rush to complete the IANA transition (a jointly-sponsored project of the U.S. government and ICANN, a California corporation), and thereby avoid the "Snowden fallout" of a "foreign takeover" of the internet by a non-U.S. agency or corporation, the IANA transition's "accountability component" was severed in two--Work Stream 1 (WS1) and Work Stream 2 (WS2)--which is why we now have a tired, semi-dysfunctional WS2 working a year behind schedule, trying to grapple with fundamental, threshold questions like jurisdiction which should have been decided in WS1 before spending $32 million dollars (including $15 million in external legal fees) to "customize" ICANN in accordance with California and U.S. laws.

Which brings me to my recent personal sojourn into "ICANN accountability." I should have known better from my prior experience which you can read about here, but in anticipation of the important comment periods closing in May, 2017, on 1).NET Registry Renewal, 2) Improving SO/AC Accountability, 3) New gTLDs Subsequent Procedures PDP, and 4) Competition, Consumer Trust and Consumer Choice Review for New gTLDs, I rolled up my questions  and submitted them to ICANN's President & CEO, ICANN Chairman (& Board), and the Global Domains Division (GDD) President, in advance (April 26) of the ICANN FY17 Q3 Quarterly Stakeholder call on April 27. 2017.

On April 27, upon logging onto the Adobe Connect for the Stakeholder call, I inquired as to whether my questions for the call had been received, at which time I was advised by ICANN Staff member Mia Crampton (via Adobe private chat) "We'd like to get back to you offline so we can be as thorough as possible to your many questions."  

On May 11, not having received a response to any of my questions, I sent an email to ICANN staff Mia Crampton, Karla Hakansson (GDD staff who I had also been in contact with), and engagement @icann.org, inquiring about the status of any response to my questions, and concluding, "The comment periods close this month on the CCT RT draft report (May 19), SO/AC accountability (May 26), and .NET registry agreement (May 30). It would be useful to have the ICANN answers to my questions well before the aforesaid closing dates. Is that asking too much? Please advise."

On May 16, still having received no response, I sent an email to the ICANN Ombudsman and Complaints @icann.org:
After promising on April 27, 2017, to answer my questions (see below), ICANN has now gone "silent" and will not even give me the courtesy of a reply to my email of May 11 below. Why is ICANN so afraid of accountability and transparency, and afraid to answer my questions? Do I need to file formal complaints against Goran Marby, Akram Atallah, Steve Crocker and the entire ICANN Board of Directors? Can any of you do anything to get ICANN and its referenced officers and directors to answer my questions? The courtesy of a reply would be appreciated.
On May 17, I heard from the ICANN Ombudsman:
I would like to acknowledge reception of your complaint and advise that I have made inquiries with ICANN. I see you have also included ICANN Complaints Department in your email. I will be discussing your complaint with the complaints officer to ensure there is no duplication in your request. I will be back in touch very shortly.
and from Complaints @icann.org:
I would also like to acknowledge receipt of your message and confirm that Herb and I are both inquiring within ICANN. We will coordinate with each other and be back in touch soon.
and then again from the Ombudsman:
I have validated confirmation from ICANN there is a team working on replies to your questions and they expect to be able to respond fully sometime next week. Should you not receive a reply by the end of next week please contact me and I will further inquire into the delay.
On May 26, 2017 (Friday of Memorial Day weekend here in the U.S.), I received ICANN's responses (both signed by Cyrus Namazi, VP Domain Name Services & Industry Engagement, Global Domains Division), to my questions (pp. 1-4), in two separate emails:
1) via Ms. Hakansson of ICANN's GDD, answers re: .NET (p. 4 of my questions);
2) via engagement @icann.org re: answers to my other questions (pp. 1-3 of my questions)

Before receiving ICANN's answers on May 26, due to ICANN's comments close deadlines, I had already submitted my comments re:
Early on May 30, I submitted my comment on the .NET Registry Renewal (pdf), only to receive an email hours later from ICANN that:
"Posting of your message titled "Comment re: Proposed Renewal of .NET Registry Agreement" has been rejected by the list moderator.  The moderator gave the following reason for rejecting your request: "Non-members are not allowed to post messages to this list." Any questions or comments should be directed to the list administrator at ..." (emphasis added)
I have heard critics say ICANN is run like a "private members-only club" but this was the first time I had encountered ICANN rejecting a comment submitted on a public comment issue, because "non-members are not allowed."

However, nothing surprises me anymore about the depth of ICANN dysfunction, and therefore I responded to the "list administrator" (attaching a copy of the "rejection email" above):
"How do I become a "member" in order to post a comment since I already have SOI on file and have been a participant in an ICANN CCWG and am on several ICANN mailing lists as an observer?"
I also sent an email to the ICANN Ombudsman and Complaints @icann.org (with a copy of the above):
"Public comment rejected by ICANN? I need this addressed ASAP! Public comments close today."
Long story short (you can read more here), my comment had been rejected by GDD staff Ms. Hakansson (purportedly as "spam"), and after I re-submitted the comment (exactly the same way I originally submitted it), it was published.

On May 28, 2017, I sent the following to Controller @icann.org with cc to ICANN Ombudsman:
"Re: ICANN FY16 Form 990 Announcement | ICANN.org: "The Form 990 contains information and disclosures as required by the IRS on financial statements, funding sources, compensation practices, and much more. It is a useful source of information, which we invite the ICANN community to review and offer comments or questions as desired (controller @icann.org). ICANN filed its Form 990 [PDF, 5.54 MB] for the fiscal year ending 30 June 2016 with the Internal Revenue Service on 12 May 2017 in compliance with the extended due date of 15 May 2017."
"I am a gTLD domain name registrant and therefore am an "ICANN stakeholder" as well as being editor of DomainMondo.com. I have reviewed your recently filed ICANN Form 990 (FY16), in this post: News Review: A Red Flag in ICANN Financial Disclosures? | NR 2017-05-21
"I request your answers, explanations, and provide the information requested therein, as well as ICANN's rationale(s) for not disclosing all remuneration, income, and other compensation paid to ICANN Board Chairman Steve Crocker directly, or indirectly via his corporation Shinkuro, Inc., or via any other entity, device, or scheme, for the period of the FORM990 (FY16) and for the period he has been an ICANN Board member (2008 to present).

"For your assistance I have highlighted the questions raised in the post below. I also ask whether any ICANN officer or director is or has been doing business with ICANN via their personal "corporation" or other entity, device, or scheme, for the period of the Form 990 (FY16) and for the period from 2008 to present similar to Mr. Crocker, or otherwise, and again the explanations and rationales for "hiding" and not disclosing that information to the IRS and the global multistakeholder community, in accordance with your obligations under the Internal Revenue Code, laws of the United States of America and State of California, and ICANN bylaws and articles of incorporation.
"Further, in view of past experience with ICANN directors, officers, and staff failing to provide timely, responsive answers, evading accountability, and otherwise being non-transparent, your failure to reply within 10 days hereof will be deemed a refusal to answer."

On June 1, I received the following response Xavier Calvez, ICANN CFO, to the foregoing:
"Dear Sir,
As the signatory of the ICANN Form 990, I have been provided with your question on this document. I hereby acknowledge receipt of your email and question, and thank you for your time and effort in reviewing this document and inquiring about it. Your question and its upcoming response further enhance the transparency on this document. I will submit your email and question for publication on the “Correspondence” page of our website. Our response will also be published on this page, and you will be notified of such publication as soon as it will have occurred. Thank you."

On June 2, 2017, I sent the following to ICANN staff Mia Crampton and engagement @ICANN.org, cc to ICANN Ombudsman and Complaints @ICANN.org:
"I have reviewed the document signed by Cyrus Namazi and sent May 26, 2017 in response to the first three pages of my questions submitted on April 26, 2017, in advance of the ICANN Quarterly Stakeholder Call on April 27, 2017, and directed to the ICANN President & CEO, ICANN Chairman (& Board), and GDD President. While Mr. Namazi failed to address many of my questions, I am nevertheless most interested (and persistent) in having ICANN's response to the question below which is on p.3 of my questions which Mr. Namazi failed to address, and I have again set out below:
"In December, 2008, the U.S. Department of Justice Antitrust Division told ICANN:
“ICANN is obligated to manage gTLDs in the interests of registrants and to protect the public interest in competition. ICANN appears to have assumed that the introduction of new gTLDs necessarily will enhance competition and promote choice and innovation, without offering any evidence to support that assumption .... The Division makes two specific recommendations. First, ICANN’s general approach to new gTLDs should be revised to give greater consideration to consumer [registrant] interests. ICANN should more carefully weigh potential consumer harms against potential consumer benefits before adding new gTLDs and renewing new gTLD registry agreements. Second, the RFP process and proposed registry agreement should include provisions that would enable ICANN to constrain new registry operators from exercising market power. In particular, ICANN should establish competitive mechanisms for authorizing new gTLDs and renewals of gTLD registry agreements whereby prospective gTLD operators would compete for gTLDs by proposing registry terms – including maximum fee schedules – that would provide consumer [registrant] benefits.”—U.S. Department of Justice, Antitrust Division, December 3, 2008 (pdf) (read the entire letter!) via a U.S. Department of Commerce (NTIA) letter (pdf) in December, 2008.
"Why did ICANN reject (and to this day continues to reject) the wise, experienced, expert advice of the U.S. Department of Justice Antitrust Division, which is among the world’s foremost authorities on “consumer choice and competition” issues?
I note that the correspondence I referenced above appears in ICANN's records at https://www.icann.org/en/system/files/files/baker-to-dengate-thrush-18dec08-en.pdf. I have searched and have not found any response from ICANN to the December 2008 correspondence from NTIA and DOJ referenced above. I find a response in April 2009 from ICANN Sr. V.P. Kurt Pritz to NTIA but that letter specifically states it is responding to correspondence from NTIA of August 1, 2008, NOT the correspondence I referenced above. I know Mr. Namazi was not employed by ICANN until 2013, but my questions were not directed to him. They were specifically directed to the ICANN President & CEO Goran Marby, ICANN Chairman Steve Crocker (& Board), and Global Domains Division President Akram Atallah. Mr. Atallah worked alongside Kurt Pritz, both before and after Mr. Pritz resigned due to an undisclosed "conflict of interest" in late 2012. In addition, the current ICANN Chairman has been on the ICANN Board from late 2008 to present. Since the the new gTLDs program is currently being reviewed and initial planning is underway for the "next round(s)," it would be helpful to understand whether ICANN, its community, its management and staff, and its Board of Directors, ever responded, discussed, or otherwise seriously considered the specific recommendations from the U.S. Department of Justice Antitrust Division dealing with new gTLDs, "consumer choice and competition," and consumer (registrants) protection, as set forth specifically in DOJ's letter of December 3, 2008, and if not, why not? If there are documentary records specifically applicable in answering this, it would be helpful if you could provide direct links to those documents since the ICANN website is a "mess" and has many broken links.
"Note that I deferred having an answer given to these questions during the stakeholder call on April 27, 2017, in response to Mia Crampton's request at that time in Adobe private chat: "We'd like to get back to you offline so we can be as thorough as possible to your many questions."
"I look forward to your response."
No response from anyone at ICANN as of the time of this post. Stay tuned.

-- John Poole, Editor, Domain Mondo 

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