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>Subject: Letter to ICANN from Office of Advocacy of SMA on lack of procedure
>
>[Following is a letter to ICANN from the Office of Advocacy of the U.S.
>government Small Business Administration about the fact that ICANN's
>procedures deny users any way to participate in their processes.
>The concern here was particularly with the interests of small businesses,
>but the concerns raised refer to all users, including the home user,
>the hobbyists, the library users, those using the Internet for school
>or university studies, etc.It is interesting that U.S. this government
>office has taken on the hard challenge to inform ICANN that there
>is a problem with what they are doing and that the Dept of Commerce
>contract they have obligates them to do something very different
>from their current activities. Also the letter points out, in
>a helpful way, that ICANN's board has been quick to try to remove
>from their bylaws any mechanisms that the public may have to
>participate in their processes. The problem I see with this
>letter is that the process of allowing comments doesn't have
>any way to effectively change the fact that ICANN has been created
>to exclude the public from any of its processes and to hand
>power and property that is public over to a private
>and nonaccountable entity in a way that is unprecedented. Still
>the letter is important so I am including the whole letter in
>this post. It is online.-r]
>
>
> Office of Advocacy
>
>
> October 27, 1999
> Ms. Esther Dyson
> Internet Corporation for Assigned Names and Numbers
> 4676 Admiralty Way
> Suite 330
> Marina Del Ray, CA 90232
>
> Re: Request for a Procedural Policy
> Dear Ms. Dyson:
> Introduction
> The Office of Advocacy, U.S. Small Business Administration,
> ("Advocacy") submits this letter to request that the Internet
> Corporation for Assigned Names and Numbers ("ICANN") adopt and
> publish a policy statement on major issues that affect domain name
> holders. ICANN has not issued a formal policy statement on such
> crucial matters as notice and comment, openness, and transparency.
> Procedural questions have arisen at almost every stage of
> ICANN’s activities throughout its existence and are
> undermining the consensus needed for ICANN to operate effectively.
> Furthermore, Advocacy believes that procedural policies are
> mandated by ICANN’s Memorandum of Understanding with the U.S.
> Department of Commerce ("DoC" or "Commerce Department") and
> through ICANN’s Bylaws for the Interim Board.
> Advocacy recommends that ICANN open a proceeding at its Los
> Angeles meeting in early November to solicit proposals and
> submissions on possible procedural policies. After receiving
> submissions, ICANN should issue a proposed procedural policy for
> public comment and then adopt a policy that incorporates the
> comments received. This process for drafting a policy should allow
> sufficient time for public input on all matters affecting material
> interests.
> Also, ICANN should base its procedural policy on the
> Administrative Procedure Act. Regulatory actions by the Commerce
> Department are subject to the APA. Because of ICANN’s close
> and particular relationship with the DoC, any procedural policy
> should be based on the APA and incorporate the same duties and
> protections.
> Finally, a little over two weeks ago ICANN proposed amendments to
> its Bylaws and allowed 14 days for comment. These amendments would
> remove the only meaningful section in the Bylaws that deal with
> transparency and procedures. In that section’s place, ICANN
> is proposing a vapid sentence that essentially removes all
> openness and transparency requirements on ICANN. Advocacy
> considers this proposal and the insufficient notice and comment
> period all the more evidence that a procedural policy is needed
> and needed now.
> Background
> The United States Congress established the Office of Advocacy in
> 1976 by Pub. L. No. 94-305, codified as amended at 15 U.S.C. ��
> 634(a)-(g), 637, to represent the views and interests of small
> business within the U. S. federal government. Its statutory duties
> include serving as a focal point for concerns regarding the
> government’s policies as they affect small business,
> developing proposals for changes in U.S. Federal agencies’
> policies, and communicating these proposals to the agencies. 15
> U.S.C. � 634(c)(1)-(4).
> Small businesses are a crucial element of the U.S. economy and the
> Internet. In 1998, there were 23 million small businesses in the
> United States, which represent more than 99 percent of all
> businesses in this country. Small businesses employ 52 percent of
> private workers and employ 38 percent of private workers in
> high-tech occupations. Virtually all of the net new jobs created
> in the United States in the past few years were created by small
> businesses.
> Small businesses use of the Internet is rapidly expanding. In the
> past two years, small businesses with access to the Internet have
> doubled from 21.5 percent to 41.2 percent. Thirty-five percent of
> small businesses maintain a Web site and one in three maintain
> business transactions through their site. Any policy that
> detrimentally affects the ability of these small businesses to use
> the Internet would have a significant impact on this nation’s
> economy and limit the effectiveness of the Internet as a tool of
> business, commerce, and communication.
>
> 1. Current Procedural Difficulties
>
> ICANN has been troubled from the beginning with questions about
> procedure and process. Commenters have repeatedly raised questions
> about ICANN’s openness, accountability, and transparency,
> particularly since ICANN’s actions in Singapore to adopt specific
> language for the registrar accreditation despite serious objections.
> Advocacy believes that these procedural concerns are legitimate, and,
> to the extent they are being ignored, de facto barriers are being
> erected to meaningful participation of small businesses and
> individuals in the ICANN decision-making process. Advocacy has broken
> these procedural concerns down into four different issue areas.
>
> a. Notice to the General Public Insufficient
>
> Many of ICANN’s notice deadlines are too short for small
> businesses and individuals to respond in a timely and informative
> manner. Far-reaching policy thus far has been adopted after very brief
> comment periods – which can be as short as a week. These brief
> comment periods were particularly noticeable at ICANN’s latest
> public meeting in Santiago. For example: a proposal to lengthen the
> term of the initial at-large directors was posted August 18 with
> comment due by August 26; the staff report on at-large membership was
> posted August 11 with any comments due by August 26; bylaw amendments
> were posted September 16 and the deadline for public comment was Sept
> 27; comments on the Uniform Dispute Resolution Policy was posted on
> September 29 and was due on October 13, comments for another set of
> Bylaw amendments were posted October 8 with comments due on October
> 22, and just last week on October 21 ICANN posted a draft charter for
> the Ad Hoc Working Group on Convergence with comments due before the
> meeting on November 2 - 4.
>
> Furthermore, it is difficult for small businesses to monitor all of
> ICANN’s activities as they are posted on several different Web
> pages without any organization or central list. In order to keep
> appraised of all the different actions and activities of ICANN, the
> Domain Name Supporting Organizations, and the constituency groups, an
> interested party must visit on a daily basis: icann.org, dnso.org,
> ipcc-meetings.com, www.ncdnhc.org, and bcdnso.org. Often times, these
> sites are poorly organized and notices of important actions are hard
> to find unless you are intimately familiar with the layout.
>
> b. Handling of Comments Problematic
>
> Procedural difficulties also extend to ICANN’s handling of
> comments after they are received, including the posting of comments
> and consideration of comments. Comment posting is an important step in
> the overall process as it allows participants to view other
> submissions and to respond to them. The current organization of posted
> comments is jumbled and difficult to follow. The listings provide
> sparse information and that does not facilitate quick review of
> comments. Also, comments from several different proceedings are merged
> together into a single list, adding to the confusion.
>
> On a related note, ICANN does not have any means of recognizing
> receipt of comments, as Advocacy discovered when its comments
> regarding the UDRP, which were filed on time, were not posted on
> ICANN’s Web page. Upon further inquiry, Advocacy learned that
> ICANN had no record of the comments, even though Advocacy’s
> e-mail program said that the comments had been sent and the office
> received no notification that the e-mail was not delivered.
>
> c. Scope of Authority Questioned
>
> Industry representatives, consumer advocates, and members of the U.S.
> Congress have questioned ICANN’s scope of authority. Questions of
> authority have arisen during the adoption of the UDRP, the
> consideration of the proposed $1 fee on all domain name registrants,
> ICANN’s ability to enforce a definition of a "famous trade mark",
> and ICANN’s ability to impose contracts upon all domain name
> registrants enabling them to take away the domain name at any time.
> These questions of authority and legitimacy are especially
> troublesome, because they are beginning to undermine the validity of
> ICANN’s proceedings and eroding support for its efforts. It is
> imperative that boundaries be drawn on ICANN’s authority so that
> its ability to strike a consensus is not impugned.
>
> d. Openness and Transparency Concerns
>
> Participants also have raised concerns about ICANN’s
> consideration of comments once they are received. Because ICANN does
> not address comments directly nor refer to them in its decision-making
> process, many commenters believe that their comments were not given
> adequate consideration or were ignored out of hand. Regardless of the
> veracity of this claim, ICANN makes no meaningful effort to offer
> evidence that a process exists to ensure that all comments are
> considered.
>
> Congressman Thomas J. Bliley, chairman of the House Commerce
> Committee, also brought attention to ICANN’s closed board
> meetings. While some of the board meetings are now open, most board
> decisions seem to be made during private meetings with the discussions
> announced at public board meetings. Other meetings also remain closed,
> including special committees on IP address convergence and new generic
> TLDs. Advocacy understands that complete openness and transparency at
> all levels may not be feasible. However, decisions made at closed
> closed-door meetings and backroom dealings raise suspicions about
> ICANN’s fairness – suspicions that are undermining
> ICANN’s credibility.
> 2. A Procedural Policy Is Necessary and Proper
>
> ICANN needs to adopt a written and enforceable procedural policy. It
> is not just a good thing to do; it is essential. Advocacy believes
> that ICANN’s Bylaws for the Interim Board and the Memorandum of
> Understanding ("MoU") with the Commerce Department require it to adopt
> such a policy. Furthermore, a definite policy will further
> ICANN’s goal of consensus. Without a definite policy, ICANN will
> continue to be hounded by questions of procedure, openness, and
> transparency, which will cast doubts on it’s ability to perform
> the tasks assigned to it by the Department of Commerce.
>
> a. A Procedural Policy Is Required by ICANN’s Authority
>
> Advocacy is of the opinion that ICANN is required to create a
> procedural policy by its authoritative documents. Both the Memorandum
> of Understanding and ICANN’s Bylaws for the Interim Board require
> the organization to develop and adopt procedural policies that will
> ensure openness and transparency.
>
> The Memorandum of Understanding was intended to "promote the design,
> development and testing of mechanisms to solicit public input . . .
> into a private-sector decision making process." Section II.C.4. The
> MoU also directed ICANN to create a private-sector management system
> that reflects a bottom-up management, Section II.C.3. Both parties are
> to design, develop, and test procedures, Section II.B. V.A.1, and to
> manage the functions listed in the MoU in a transparent,
> non-arbitrary, and reasonable manner. DoC will provide expertise and
> advice on methods and administrative procedures for conducting open,
> public proceedings concerning policies and procedures, Section V.B.2.
>
> ICANN’s Bylaws, before the recently proposed amendments, echo the
> MoU’s emphasis on process. An entire article is dedicated to
> transparency and procedures. Advocacy finds the language of the first
> section, which has been targeted for deletion, particularly
> compelling:
>
> ICANN shall operate to the maximum extent feasible in an open and
> transparent manner and consistent with procedures designed to
> ensure fairness. In addition to the specific procedures set forth
> in these Bylaws, the Initial Board shall investigate the
> development of additional transparency policies and transparency
> procedures designed to provide information about, and enhance the
> ability of interested persons to provide input to, the Board and
> Supporting Organizations. Any such additional transparency policies
> and procedures shall be widely publicized by the Board in draft
> form, both within the Supporting Organizations and on a
> publicly-accessible Internet World Wide Web site maintained by the
> Corporation (the "Web Site"). Any such additional transparency
> policies and procedures may be adopted only after a process of
> receiving and evaluating comments and suggestions has been
> established by the Board, and after due consideration of any
> comments or suggestions received by the Board.
> Article III, Section 1
>
> This language clearly and specifically directs ICANN to initiate and
> adopt a procedural process that facilitates meaningful public
> involvement. It provides a functional roadmap as to how ICANN should
> conduct itself while adopting a procedural process. Advocacy is
> gravely concerned by ICANN’s recent proposal to strike this
> provision. This section is the only meaningful section in the Bylaws
> on transparency and openness, and ICANN is suggesting it be deleted,
> only allowing a 14-day comment period and scheduling the decision for
> a telephone meeting shortly thereafter. This entire process leads
> Advocacy to the conclusion that ICANN has already made its
> determination and has no intention of addressing, much less responding
> to, public comment.
>
> b. A Procedural Policy Is Necessary for Consensus
>
> Separate and apart from the procedural requirements of the Bylaws and
> the MoU, a process is necessary to reach the consensus necessary for
> ICANN to function. To arrive at a consensus, ICANN will need
> participation from industry, government, and Internet users. If people
> feel their participation is acknowledged and considered, they will be
> more willing to accept the decisions of ICANN. Many parties that wish
> to contribute to the ICANN process are not large corporations,
> individuals with flexible schedules, or English-speakers. A procedural
> policy will assist all of these people to give their input to ICANN.
> For example, a procedural policy will allow adequate time for response
> to ICANN proposals, which will improve comments and encourage
> participation. It is important for consensus that ICANN be accessible
> and its procedure is clear and predictable.
> 3. Advocacy Requests that ICANN Initiate a Process to Adopt a
> Procedural Policy at the November Meeting in Los Angeles
>
> Advocacy requests that ICANN initiate a process, as required by
> ICANN’s Bylaws for the Interim Board and the MoU with the DoC, to
> adopt a procedural policy. This process should begin immediately, at
> ICANN’s meeting in Los Angeles at November 2 - 4. Time is of the
> essence; ICANN has operated too long already without procedure firmly
> in place. Therefore, Advocacy proposes the following schedule:
>
> At its November meeting, ICANN should request submissions for a
> procedural policy. It should accept those comments up until two weeks
> before its first public meeting in 2000. At its first public meeting
> in 2000, ICANN should issue its own proposal on a policy statement and
> ask for comments up until two weeks before a second public meeting in
> 2000, scheduled for a time that would allow adequate opportunity for
> public comment (certainly no less than 60 days). At the second public
> meeting in 2000, ICANN Board should adopt a specific procedural
> policy, explaining reasons for its decision and replying to
> suggestions received during the comment period.
>
> Advocacy believes that meetings scheduled to discuss these issues
> should allow sufficient time for adequate comment. A thorough and
> deliberative process is necessary to consider a procedural policy that
> will affect every action ICANN takes and impact every participant to
> the ICANN process.
>
> At this time Advocacy only makes this one recommendation to ICANN on
> the specifics of a procedural policy. ICANN should model its
> procedural process after the APA. DoC is subject to the APA and
> because of the relationship between ICANN and DoC, Advocacy believes
> that it is necessary and appropriate to extend it to ICANN as well.
> The APA has been tested and proven as a "checks-and-balances" process
> that protects the rights of parties while giving those parties a
> meaningful opportunity to participate. Furthermore, DoC is charged
> under the MoU with providing expertise and advice on methods and
> administrative procedures. DoC is intimately familiar with the APA and
> can provide better advice and expertise on a procedural policy that
> will work for ICANN if it is based on the APA.
>
> Advocacy understands that the international nature of ICANN will
> require that it consider and adopt policies to accommodate
> international concerns but a policy based on the APA should facilitate
> that. A full comment period initiated by ICANN will bring these issues
> to the fore, and ICANN should consider additional procedures to
> respond to comments. The APA should remain the base line for the
> policy.
>
> Conclusion
>
> Small businesses throughout the world have a major interest in how
> domain names are governed. No one believes the task is easy, but no
> organization should assume to itself power to govern an international
> system without meaningful participation by those entities which have a
> major stake in the issue – not if it wants to remain credible and
> avoid becoming a target for an international investigation. What
> Advocacy is recommending here are some first steps for engaging
> stakeholders in ICANN’s work. To summarize:
> * ICANN should adopt a procedural policy to address four issues:
> notice to the general public, handling of comments, scope of
> authority, and openness and transparency. A procedural policy is
> required by the ICANN’s MoU with the Commerce Department and
> by ICANN’s Bylaws for the Interim Board and is necessary for
> ICANN to reach the consensus it needs to meet its duties under the
> MoU.
>
> * ICANN should start the process of constructing procedural rules at
> its meeting in November in Los Angeles. Any delay would further
> exasperate the problem and would undercut ICANN’s ability to
> fulfill its mandate under the MoU, namely, that ICANN accommodate
> the broad and diverse interest groups that make up the Internet
> community.
>
> * ICANN should not adopt the proposed amendment that would reduce
> Article III Section 1 to a single vague sentence, as it runs
> counter to ICANN’s duty under the MoU. Furthermore, a notice
> and comment period of 14 days did not allow sufficient time for
> meaningful public comment. Should ICANN reduce this section as
> proposed, it will serve as a signal to all interested parties,
> that ICANN does not consider openness and transparency a condition
> precedent to fair and informed decision making.
>
> Sincerely,
>
> /s/ _____________________
> Jere W. Glover
> Chief Counsel for Advocacy
>
> /s/ _____________________
> Eric E. Menge
> Assistant Chief Counsel for Telecommunications
>
>
>
>
--
[EMAIL PROTECTED] [EMAIL PROTECTED]
"I see you've got yout fist out. Say your peace and get out. Guess
I get the gist of it, but... it's alright. Sorry that you feel that
way. The only thing there is to say is to say: ever silver lining
has a touch of grey" - JG.
