How long can the ICANN Board hide its secret meeting?
by Kieren McCarthy | 19 Sep 2011 |
Update: ICANN has, surprisingly, responded quickly to our latest request. Less surprising is the response itself. See below.
In the second week of August, 8-12, ICANN's Board members all joined a teleconference call where they discussed whether to extend the contract of current CEO Rod Beckstrom.
The following week, 16 August, Beckstrom announced his intention to leave the organization. And the organization said it would start looking for a replacement.
ICANN responded on 19 September (the last possible day) listing three Board Committee meetings but not acknowledging the meeting where the Board discussed its CEO's contract.
Our concern at the Board's willingness to hold a secret meeting on a vital organizational matter and not disclose it to the community has been compounded by ICANN's subsequent refusal to acknowledge the meeting happened even after a direct, formal request.
What we ascertain from the response provided to our first request is that ICANN staff were not present on the call. If staff were present and then failed to provide knowledge of the meeting despite a direct request, it would open up the organization to allegations of serious misconduct.
As such, we have put forward a second request for how the information was actually gathered and whether ICANN staff communicated with Board members on the first request and any details of that correspondence.
You can find the request at the bottom of this page.
This is far from the first time that ICANN has obfuscated rather than be open, transparent and accountable. In fact, ICANN has a default position of not providing information and obfuscating or stalling when asked for it.
[We should be fair here and say that ICANN has improved over time, particularly with regard to releasing Board materials. It took many years of pressure to get there but the first point in the Guiding Principles for Review of Materials is "Start with the presumption that all material will be posted." This is big jump forward for ICANN. Now it just has to live up to its own stated principles - something that it has a historically poor record of.]
It is this culture that has led to countless complaints about the organization's accountability and transparency, most recently by an independent review team, actually called the Accountability and Transparency Review Team (ATRT).
- In 2002, ICANN Director Karl Auerbach sued ICANN after it refused to provide him with records he requested back in 2000, mostly financial. It then tried to impose what the judge subsequently called "unreasonable requirements" on his access.
Auerbach won the case on 5 August 2002, but rather than acknowledge its failings, ICANN put out a supercilious announcement in which it said that "portions of the Court's legal analysis are incorrect" and claimed that the "practical effect of the overall ruling is quite similar to the ICANN procedure that Mr. Auerbach rejected". [Read the judgment (pdf)]
- That same tone was repeated with the dot-xxx case. ICANN initially approved and then disapproved the top-level domain. The applicant ICM Registry challenged the decision through ICANN's own processes, taking five years and spending millions of dollars.
In the end, the Independent Review Panel (IRP) decided conclusively against ICANN, saying that the Board's vote against dot-xxx three years earlier was “not consistent with the application of neutral, objective and fair documented policy”. It also, remarkably, said it had found “grounds for questioning the neutral and objective performance of the Board”. [Read the decision (pdf)]
ICANN's response echoed its previous refusal to admit wrongdoing, pointing to the dissenting opinion of the third IRP panelist and claiming that the other two panelists had not fully understood the situation. ICANN's CEO even went so far as to note that "the panel’s decision is not binding" in a blog post - earning him some angry responses from the community.
Rather than reverse the decision then, ICANN created a whole new process which took another year before the top-level domain was finally approved.
- Journalist Edward Hasbrouck spent two years (2005-2007) chasing ICANN to explain its decision-making process in approving the dot-aero and dot-travel top-level domains. In his extensive catalog of the fight, Hasbrouck notes: "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... 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."
In the end, Hasbrouck declined to take ICANN up on its offer to guide him through the IRP process (which had cost ICM Registry over $3 million), but reappeared at a 2011 ICANN meeting in San Francisco to deny claims by ICANN staff that they had responded to his requests for information.
ICANN's refusal to accept wrongdoing or accept greater openness, combined with its cultural default of obfuscating and fighting a request for information to the very bitter end (and then claiming the judgement was wrong anyway), lies at the very heart of the organization's accountability and transparency problems.
Fortunately for our request, there need only be the simple recognition of an event having taken place: a meeting of ICANN Board members in order to decide what to do with their current CEO.
It was a meeting of significance but it is also extraordinarily typical of a Board performing its job. How long ICANN is willing to avoid informing the community of this meeting is representative of how little it is willing to acknowledge global concerns about its accountability and transparency.
Our second DIDP request in full:
Thank you for your response earlier today with regard to my DIDP request 20110820-1.
I have a follow up specific to that request.
Can I request that you provide separate and numbered answers to each of the numbered questions below.
- What was the process ICANN staff used to arrive at the list of three Board Committee meetings that were provided i.e. how precisely was the information gathered?
- Did ICANN staff directly contact any Board members and ask what meetings they had held with at least three other Board members during which ICANN business was discussed between 29 July 2011 and 16 August 2011?
- If yes to question 2 i.e. ICANN staff did contact Board members and request what meetings they had held with other Board members between 29 July 2011 and 16 August 2011, could you please provide copies or notes of any such correspondence from the date of the original request (20 August 2011) to the response to that request (19 September 2011).
- If no to question 2 i.e. ICANN staff did not contact Board members and request what meetings they had held with other Board members between 29 July 2011 and 16 August 2011, could you please request from each Board member a list of any meeting, teleconference or online discussion that they had held with at least three other Board members during which ICANN business was discussed that was NOT listed on the list you provided in response to 20110820-1 during the period of 29 July 2011 and 16 August 2011.
- If you need to carry out request 4 i.e. ICANN staff did not previously contact Board members and request what meetings they had held with other Board members between 29 July 2011 and 16 August, can you provide the results of that request.
Our expectation for this DIDP request:
- The response will again arrive on the last possible day: 18 October.
- There will be a Board discussion about the issue - which won't appear in any minutes - where it will decide not to reveal the secret meeting and then alot of time will be chewed up figuring out how not to reveal the information without denying the meeting had taken place.
- Meanwhile, ICANN's legal team will be looking at the different ways it can *not* ask the Board members for information relating to meetings so that they can claim no direct knowledge and so send back as plain a message as possible. They will select from the long list of get-out clauses, picking one that can be repeated ad nauseam to any future DIDP requests and which is most difficult to challenge through the Reconsideration Committee or the Independent Review Panel.
And all this because ICANN refuses to acknowledge that it should be held accountable by anyone except itself.
Update 20 Sep: Rather incredibly, ICANN has responded swiftly to our request sent yesterday asking for the process it used to compile a list of Board meetings between 29 July and 16 August.
It would appear from the response that the staff did as we suspected and simply compiled a list of formal meetings without actually contacting any Board members to request whether they had held any other meetings. We have responded asking for clarification.
The response also appears to refuse to contact Board members and ask them whether they held any meetings other than those formally listed by claiming that approach would be compiling new information, which is outside the remit of the DIDP.
So we have responded asking whether existing emails sent between Board members using their 'icann.org' address are covered by the DIDP and then asked for copies of any correspondence that points to any meetings between 8-12 August that are not formal meetings.
While ICANN decides how it is not going to ask Board members about Board meetings and on what grounds it is not going to look for information it already has, we will break out our copy of Kafka's The Trial to get into the mood.
This is the response sent by ICANN earlier today:
Meetings of the Board of Directors are those that are called pursuant to Article VI, Sections 13‐19 of the ICANN Bylaws (see http://www.icann.org/en/general/bylaws.htm#VI). Each committee of the Board has a relevant provision for the calling of meetings of the Committee. See http://www.icann.org/en/committees/board-governance/charter.htm for an example of the Meetings provision in the Committee charters. The meetings identified in response to Request 20110820‐1 are all meetings that were noticed according to the relevant provisions within the specified timeframe. Your request for the production of compilations of dates of conversations between and among members of the Board of Directors is not within the scope of the DIDP, as the DIDP is not to be used for the creation of compilations of information.