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[ga] ".aero" draft posted for approval in 7 days
All assembly members,
The following was posted to the ALSC forum. I thought that this
would be an issue of interest and possible concern to the
DNSO GA and othere DNSO constituencies. Hence I am posting it here
for everyones review and possible comment.
================== Copy as follows ===========================
From: Edward Hasbrouck <edward@hasbrouck.org>
I sent the following today to the ICANN Board of Directors. Background
and further details are at <http://hasbrouck.org/icann>.
=============================
Contents:
1. Request for action by members of the ICANN Board of Directors
2. The delegation of authority in the draft .aero agreement would
violate
ICANN's bylaws
3. The confidentiality restrictions in the .aero agreement would violate
ICANN's bylaws.
4. The process used to draft the .aero agreement violates ICANN's bylaws
5. The "opt-out" or "without objection" approval process for the .aero
agreement would violate ICANN's bylaws.
=============================
1. REQUEST FOR ACTION BY MEMBERS OF THE ICANN BOARD OF DIRECTORS
Last week I asked you, as members of the ICANN Board of Directors, to
request that the draft agreement for sponsorship by SITA of a proposed
".aero" global top-level domain (gTLD) *not* be approved. My request
was
based on the policy implications of the portions of the draft agreement
which were posted for comment 9 November 2001 to the ICANN Web site,
specifically Attachments 1 and 5 My earlier request is available at
<http://hasbrouck.org/icann/aero-draft.html>.
I am writing to you again to call your attention to additional reasons
not
to approve the draft .aero sponsorship agreement. These additional --
and
much more fundamental -- objections relate to the remaining portions of
the draft agreement which were posted between 10 November 2001 and 20
November 2001.
While my earlier message concerned policy reasons why you *should not*
approve the draft .aero agreement, the most recently posted sections of
the draft agreement indicate reasons why you *must not* approve the
.aero
agreement.
Approval of the .aero sponsorship agreement in its current form, under
your current procedures, would be contrary to ICANN's bylaws, for the
reasons detailed below. Accordingly, I reiterate my request to each of
you
individually, as a member of the ICANN Board of Directors, that, within
7
days (i.e. by 27 November 2001), you request that the President of ICANN
not sign the draft .aero agreement.
It's not clear whether, or how, such a request for non-approval of the
draft from a member of the Board of Directors would be made public. If
any of you have already made such a request, I thank you for your
action.
If you have not, I look forward to your prompt attention to your
obligation in this matter, within the 7-day comment and request for non-
approval deadline.
2. THE DELEGATION OF AUTHORITY IN THE DRAFT .AERO AGREEMENT WOULD
VIOLATE
ICANN'S BYLAWS.
Attachment 2 of the draft .aero sponsorship agreement -- the last
section
to be posted, on 20 November 2001 -- is a delegation of decision-making
authority by ICANN to SITA over specified areas.
<http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att2-
20nov01.htm>
However, ICANN can't delegate authority that ICANN doesn't have. And
ICANN's own decision-making authority is limited by Article 3 of ICANN's
bylaws, which provides as follows: "The Corporation and its subordinate
entities shall operate to the maximum extent feasible in an open and
transparent manner and consistent with procedures designed to ensure
fairness." <http://www.icann.org/general/bylaws.htm#III>
In order to be valid, any delegation of authority by ICANN must,
therefore, include conditions requiring openness, transparency, and
procedures to ensure fairness in the exercise of delegated authority. A
purported delegation of authority lacking such conditions would be
invalid
as delegating more authority than ICANN itself possesses under its own
bylaws.
The delegation of authority by ICANN to SITA in the draft .aero
agreement
lacks any openness, transparency, or procedural fairness conditions.
The
draft agreement thus exceeds ICANN's authority, and cannot be approved
without violating ICANN's bylaws.
It is this issue of openness, transparency, procedural fairness, and at-
large participation in delegated decision-making that is central to my
earlier recommendations to the ICANN AT- Large Study Committee at
<http://hasbrouck.org/icann/alsc.html>.
If ICANN could evade the requirements of Article 3 of its bylaws by
delegating authority to a body that operated in secret, that would
render
Article 3 of the bylaws meaningless. And it is a fundamental principle
of
legal interpretation that a document should be interpreted in such a
manner as to give meaning to each of its terms.
(It could be argued, in the alternative, that the gTLD sponsorship
agreement would make SITA a "subordinate entity" of ICANN, and thus
implicitly subject to the openness, transparency, and fairness
requirements of Article 3 of the ICANN bylaws. If that interpretation
were adopted, however, any delegation of authority by ICANN to SITA's
application would have to be rejected for noncompliance by SITA with
those
bylaw requirements in SITA's conduct to date in drafting the .aero
agreement and in formulating policies for .aero.)
3. THE CONFIDENTIALITY RESTRICTIONS IN THE DRAFT .AERO AGREEMENT WOULD
VIOLATE ICANN'S BYLAWS.
Attachment 21 of the draft .aero sponsorship agreement, concerning
"proof
of concept" reports, contains the following provision: "The reports
provided by Sponsor as described in this Attachment shall be subject to
confidentiality restrictions according to categories described in
Section
11." The categories on Section 11 of Attachment 21 provide restrictions
on release of information by ICANN for as much as 18 months after it is
reported to ICANN.
<http://www.icann.org/tlds/agreements/aero/sponsorship-
agmt-att21-10nov01.htm>
As noted above, ICANN's bylaws require that ICANN and its subordinate
entities "operate to the maximum extent feasible in an open and
transparent manner and consistent with procedures designed to ensure
fairness." Restrictions on public disclosure information by ICANN can
only be justified by a showing that disclosure is not feasible, even
judged according to standards of maximum feasibility.
No rationale whatsoever is given in the draft .aero agreement as to why
it
would not be "feasible" for this information to be publicly disclosed
immediately, or in less than the specified time periods, by ICANN and/or
SITA. Nor, to the best of my knowledge, has SITA or ICANN made public
such a rationale in any other forum. Absent a showing of lack of
feasibility, the confidentiality restrictions are, on their face,
contrary
to ICANN's bylaws, and cannot be approved.
It should also be noted that possible impairment of SITA's commercial
interests by early public disclosure of the "proof of concept"
information
should have no bearing on a determination of whether disclosure is
"feasible". In any event, SITA stressed as one of the reasons its
application for sponsorship should be granted that SITA is a not-for-
profit entity with no commercial interest in the proposed .aero gTLD.
SITA was aware of the openness, transparency, and procedural fairness
requirements of ICANN's bylaws when SITA submitted its sponsorship
application. If SITA was unwilling to accept those conditions, and
wanted
to operate under confidentiality restrictions, it shouldn't have
applied,
and its application shouldn't have been accepted. As ICANN has
repeatedly
reminded other would-be gTLD sponsors, those who weren't willing to
accept
ICANN's conditions for gTLD sponsorship didn't have to apply. That
should
apply equally to the transparency and fairness conditions that ICANN is
required by its bylaws to include in all delegations of authority.
4. THE PROCESS USED TO DRAFT THE .AERO AGREEMENT VIOLATES ICANN'S
BYLAWS.
To reiterate, ICANN's bylaws require that ICANN and its subordinate
entities "operate to the maximum extent feasible in an open and
transparent manner and consistent with procedures designed to ensure
fairness."
Contrary to this requirement, the negotiations between ICANN and SITA,
and
the drafting of the .aero sponsorship agreement, have been conducted in
a
closed manner lacking procedures to ensure fairness.
There has been no public notice of negotiating or drafting sessions, and
there has been no opportunity for stakeholders or community members to
observe the process, much less participate.
I formally requested information on opportunities to observe and/or
participate in the policy formulation process -- as a stakeholder and
member of the Air Transport Community and the .aero constituency -- from
SITA through the form provided on SITA's Web site for this purpose at
<http://www.sita.int/aero/info/reqinfo.asp>. In response, I was told by
SITA, "We shall communicate the... details of registration policies...
in
due time and we shall inform you directly once the launch date for the
Registry Operation and Registration Services has been confirmed."
<http://hasbrouck.org/icann/sita.html>
No indication was given as to why it would not be "feasible" to provide
more information, or opportunities for openness to all stakeholders and
community members, prior to the setting of the launch date for the .aero
gTLD. Absent a showing that this was not feasible, the failure to
provide
this openness and transparency is a violation of ICANN's bylaws.
ICANN also told me that "The exact definition of the individuals or
entities qualifying for registration and related policies are currently
being developed in close co-operation with representatives from various
industry bodies including IATA, ACI and ICAO." As I have detailed here
and in my earlier comments, the airline industry is only a small subset
of
the air transport community which was defined as the .aero constituency
in
SITA's original proposal. SITA's procedures provide for participation
only by the industry -- one specific interest group amongst many
stakeholders in the .aero constituency -- while excluding stakeholders
from other interest groups in the constituency. This fails to satisfy
the requirement of ICANN's bylaws for "procedures designed to ensure
fairness," especially fairness in balancing the interests of the airline
industry and other, non-industry, members of the community.
5. The "opt-out" or "without objection" approval process for the .aero
agreement would violate ICANN's bylaws. ICANN Resolutions 01.83-01.85
established the following "opt-out" or "without objection" process for
approval of the .aero sponsorship agreement by the ICANN Board of
Directors:
"The President and General Counsel are authorized and requested to
complete negotiation of the .aero and .coop agreements (including
attachments) as soon as feasible and to post the attachments on the
ICANN
web site; ... the Board shall be notified of the complete posting of the
agreement and appendices for each of .aero and .coop and after that
notification seven days shall be allowed for Board members to make any
additional comments to the President and General Counsel; ... in the
absence of the request of any Board member to the contrary based on
policy considerations, the President is authorized to sign the posted
agreements for .aero and .coop after the conclusion of those seven
days."
<http://www.icann.org/minutes/prelim-report-10sep01.htm#01.83>
However, Article 3, section 3 (b) of ICANN's bylaws requires as follows:
"With respect to any policies that are being considered by the Board for
adoption that substantially affect ... third parties ... the Board will:
... iii) hold a public forum at which the proposed policy would be
discussed." <http://www.icann.org/general/bylaws.htm#III-3b>
Since the "without objection" approval process does not include a public
forum for discussion of the draft agreement, that procedure is
permissible
only for policies that do not substantially affect the interests of any
third parties.
The draft .aero agreement would substantially affect the interests of,
among others, those members of the air transport community (as defined
as
the .aero constituency in the SITA proposal accepted by ICANN as the
basis
for negotiation of the .aero agreement) but excluded from eligibility
for
.aero registration and/or participation under the draft agreement.
These
affected parties include, among others:
1. Users and purchasers of air transport services, including: A.
Airline
passengers and their organizations B. Air cargo shippers and their
organizations
2. Elements of civil society concerned with air transport, including:
A.
Air transport consumer advocates and organizations B. Air transport
safety and security advocates and organizations C. Organizations
concerned with the environmental impact of air transport D.
Organizations
of airport neighbors concerned with aircraft noise E. Organizations
concerned with land use planning for airports F. Organizations
concerned
with the impact of air transport industry practices on civil liberties
3. Critics of the air transport industry, including: A. Muckrakers,
investigators, and gadflies outside the industry B. Whistleblowers,
critics, and advocates for change from within the industry C. Other at-
large stakeholders
Travel agents and sellers of air travel are implicitly included in the
".aero Charter" (Attachment 1) and
the "Description of the Sponsored TLD Community" (Attachment 5) as
people
or entities which "perform
the necessary transactions to transport people and cargo by air." But
they are excluded from the "Start-
Up Plan" (Attachment 8, posted 17 November 2001).
<http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att8-
17nov01.htm>
No explanation has been provided for this differential treatment of
travel
agents vis-à-vis other segments
of the air transport industry. Whatever the reason, the decision to
exclude travel agents from the Start-
Up Plan, and thus from registration and participation in .aero during
the
start-up period, affects the
interests of:
1. Air travel agencies 2. Independent air travel agents 3. Sellers of
air
travel other than agents of airlines
4. Sellers of bundled travel services that include air transport, such
as
air-inclusive tours
The "Registry Operator's Proposal" that was part of SITA's original
application for .aero estimated that
there would be from 94,288 (pessimistic) to 259,360 (optimistic) .aero
name registrations.
<http://www.icann.org/tlds/air1/Registry%20Operator's%20Proposal.htm>
Given the much smaller
numbers of other types of (large) companies identified in the proposal,
it's likely that these numbers of
domain name registrations could only be achieved if a large percentage
of
them came from travel
agencies and agents.
Whatever the total number of potential .aero registrants might be, it's
clear that the vast majority of
.aero stakeholders and members of the .aero constituency, as defined in
the original .aero proposal,
would be excluded from .aero registration and participation under the
draft agreement.
All the people and organizations outlined above had every reason to
expect, based on the plain
language of SITA's original proposal, that they would be eligible to
register .aero names as part of "the
Air Transport Community... defined as all companies and organizations
for
which the main activity is
related to Air Transport". Their first notice that they were to be
excluded from registration and/or
participation in .aero came with the posting of the draft .aero
agreement,
on which there has been no
public hearing.
Since the draft .aero agreement would substantially affect third
parties,
ICANN bylaw's require a public
forum before it can be approved. In the absence of such a forum, any
purported approval by the Board of
Directors through the "without objection" process, or by the President
through signing of a purported
contract, would be in violation of ICANN's bylaws, and invalid.
For all these reasons, and those in my prior recommendations to the
ICANN
Board of Directors and the
At-Large Study Committee, I urge you promptly to request that the draft
.aero sponsorship agreement
with SITA not be approved, and schedule a proper public forum on this
issue at your next (Accra) or a
subsequent meeting.
Sincerely,
Edward Hasbrouck edward@hasbrouck.org Http://hasbrouck.org
Passenger air travel and travel e-commerce consumer advocate, author,
and
FAQ-maintainer
Member-at-large of the Air Transport Community and the ".aero" gTLD
constituency
----------------
Edward Hasbrouck
<edward@hasbrouck.org>
<http://hasbrouck.org>
"The Practical Nomad Guide to the Online Travel Marketplace"
<http://www.amazon.com/exec/obidos/ASIN/1566912504/edwardhasbro>
"The Practical Nomad: How to Travel Around the World"
<http://www.amazon.com/exec/obidos/ASIN/1566912148/edwardhasbro>
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