Web and e-mail problems

As my regular readers and correspondents have noticed, I've been having problems with the company hosting my Web site. (Echolima.com in the Toronto area, if anyone wants to know whom to avoid.) They've recently changed ownership, and have had unexplained days-long Web and DNS server failures.

I apologize for the outages and any inconvenience caused.

I'm in the process of moving to a new, more expensive but hopefully more reliable host, Rackforce in Kelowna, B.C. (the host for Airtreks.com during the time that our software development team relocated to the Okanagan).

(Why, you may ask, is my site hosted in Canada when I'm in the USA? In part, in order to give my e-mail correspondents and visitors to my Web site the privacy protection, to the extent possible, of Canada's Personal Information Protection and Electronic Documents Act [PIPEDA].)

In the meantime (until New Years, by which time I expect to have everything set up and debugged on the new host):

• If you get, or have gotten, a message that your e-mail to me is undeliverable, or you don't get an answer, please try again or give me a phone call.

• If you try, or have tried, to subscribe to my newsletter and don't get a confirmation message that you have subscribed successfully, please send me an e-mail message or try again after 1 January 2006.

• If something doesn't work on my Web site (especially searches, comments, or other dynamic features of this blog), please try again later. Some features will be unavailable during the move.

The Amazing Race 8 (Family Edition), Episode 10

Absorokee, MT (USA) - Billings, MT (USA) - Montréal, Québec (Canada) - Toronto, Ontario (Canada) - Queenston, Ontario (Canada) - Lewiston, NY (USA)

To the bitter end, tonight's final episode of the Family Edition of The Amazing Race was, like this whole season, a series of missed opportunities.

Instead of having to locate a place on the ground in the real world, the "reality" television racers had, as their final task, to assemble a giant jigsaw puzzle of the states and provinces of the USA, Canada, and Mexico. Cute, but no substitute for real-world navigation.

In their earlier real-world tasks, I'm not sure which was more embarrassing as a sign of USA ignorance of even the most obvious trivia of Canadian geography: racers standing next to the Olympic Stadium in Montréal -- the most architecturally distinctive large structure in the city -- asking, "Is this the Stade Olympique?", or staring at the Toronto skyline and asking, "Where's the CN Tower"?

Along the way, the racers went to the Biosphère in Montréal (the world's largest Buckminster Fuller geodesic dome), built as the USA pavilion for Expo '67. The theme of the original expo was "Terres des Hommes", officially but inelegantly translated as "Man and His World". A more accurate rendering of the connotations of the name might be, "World of Peoples", and it was distinctive as the first world's fair to celebrate cultural diversity, rather than to reduce "otherness" to entertainment, "primitivism", or freak show, or to center on technology and artifacts rather than ways of life.

I don't think I bothered to set foot in the Biosphère -- we hadn't come to Canada to learn about the USA. But as someone who (like most Americans) never travelled outside the USA and Canada as a child, I learned a lot from my family's visit to Expo '67. In many ways it was my first real taste of what I would begin to discover "out there" when I began to explore the world for real as an adult.

The racers, however, were sent to this icon of cross-cultural popular education not to meet, observe, or talk to anyone, but simply to get out of their cars, climb the steps of the empty monument, collect their next clue from an unattended box, run back down, and get back in their cars.

The most serious missed opportunity was, of course, the opportunity to show television viewers what happens when families with children travel around the world: how much fun it is, how much easier it is than they expect, how much more quickly and easily children learn new languages and adapt to different cultures and ways of life than do adults, and how much children and adults learn from world travel together.

Before this season, I looked forward eagerly to the opportunity to showcase these lessons during the "Family Edition" of the race around the world. Alas, the producers of "The Amazing Race" fell prey to one of the standard myths about travel that I debunk in The Practical Nomad, How to Travel Around the World : the myth that having children is a reason not to travel abroad, when in fact it is one of the best reasons to travel to places as different from your homeland as possible. As I say in my top tips for travellers :

Children are another great reason to take a trip around the world. Few other gifts you could give your children could match the lifelong value of international experience and exposure to global diversity as a child. No one I know who has traveled abroad as a child would think of trading a year of world travel for a year of conventional schooling. Experience living abroad as a child is the single best predictor of success in international business as an adult.

Tonight's best news is that "The Amazing Race 9", to be broadcast in the USA beginning in February 2006, will return to the around-the-world format (although not, unfortunately, with children), with the preview including scenes in Russia, Japan, and Brazil, among other places -- and the by-now-obligatory bungee jumping.

Also as of tonight, applications from citizens of the USA (still no Canadians or other "foreigners" accepted) are now being invited through Friday, 13 January 2006 for "The Amazing Race 10".

Don't worry if you miss the deadline -- send in your application regardless of which season it specifies, and if they producers like it they'll keep it on file for future seasons. This is a television show, and the producers can cast whomever they want, however they want, whenever they want.

Another earthquake on Northern Pakistan border

There's been another major earthquake yesterday affecting much of the same region of northern Pakistan and the Pakistan-administered portion of Kashmir where hundreds of thousands of people are still homeless in the mountains and unlikely to survive the winter following the larger earthquake 8 October 2005.

The epicentre of yesterday's earthquake was on the Afghanistan/Pakistan border about 250 km (150 miles) northwest of the epicentre of the 8 October earthquake , which was centered just west of the Line of Control (LOC) between Indian-occupied and Pakistan-administered Kashmir and almost directly under Muzaffarabad the largest city on the Pakistan-administered side of the LOC.

Travel in this region, which includes the world's second-highest (K2) and some of its steepest and most inhospitable mountains, is arduous even in summer, in the best of circumstances, on the best of its roads. The Karakoram Highway -- the only paved road over the crest of the Himalayas, on which I travelled through this area form north to south -- is closed more than half of the year by snow, and frequently in summer by landslides. There are few flat places large enough to land a helicopter, and much of the region is entirely inaccessible throughout the winter except on foot.

Initial reports of damage from the latest earthquake are of more landslides on slopes already weakened and fractured by the October quake. The impact on the transport of relief supplies could be severe, and could lead to tens of thousands more deaths.

Substantially more people are at risk of dying as a result of the October earthquake than from better-publicized disasters like last year's tsunami in the Indian Ocean, or Hurricane Katrina on the Gulf Coast of the USA. At least 80,000 have already died from the earthquake. Many more Kashmiris will die this winter of cold, exposure, hunger, and disease.

Friends who know of my long-standing interest in Kashmir have been asking, "What can we do to help?"

Many of the problems in getting relief supplies to those who need them are political, and have to do with the de facto partition of Kashmir between Indian and Pakistani administration. In particular, most of the need is in the Pakistan-administered areas, and most of the money and resources are on the Indian side of the Line Of Control. For example, there's a crucial need for transport into the canyons, but Pakistan is understandably reluctant to let the Indian Air Force move in with their superior helicopters, lest India use this as a pretext for military takeover, and never leave. But the LOC is still not fully open, and it makes no practical sense to route aid to Pakistan-administered Kashmir through India. And India (and Pakistan) seem to be trying to use disaster relief as a propaganda tool to win the hearts and minds of Kashmiris.

Given these aspects of the situation, I'd try to get money to people who can work with the political situation on the Pakistan side of the LOC, are trying to bring together the different communities, and are working to get the LOC more open at least for relief work.

My friends in the Kashmiri American Council are funneling money to a joint relief committee in "Azad" ("Free", i.e. Pakistan-administered) Kashmir. I know nothing about what the end recipients of these funds are actually doing on the ground, but I suspect that locally based groups can make more efficient use of each donated dollar than foreign NGO's that aren't working through local communities. The KAC has been, so far as I know, a nonviolent and principled group distinguished for its commitment to outreach and dialogue between Kashmiris from all religious, ethnic, and regional communities in all parts of Kashmir and the diaspora.

(Beyond their unity in suffering since the earthquake, most Kashmiris, from all sub-groups, are united in wanting a reduction in military forays and firing across the LOC, and in wanting more opportunities for family visits across the LOC. However, I've seen no hint that India is willing to consider anything beyond "confidence building measures", or anything with any real chance of being accepted by most Kashmiris as permanent or a "solution".)

You can contribute online (click the "donate" button at the top of the page) or send checks marked for earthquake relief and payable to the KAC to:

Kashmiri American Council
1111 - 16th Street, N.W. Suite 400
Washington, DC 20036

In case it's moved from their home page, the KAC appeal is as follows:

An Appeal for Earthquake Victims in South Asia

The recent earthquake that shook South Asia has been reported to be one of the most devastating earthquakes to hit the region in history, with the greatest destruction coming in Azad Jammu & Kashmir. The death count is currently estimated at 40,000 and increasing everyday. The U.N. officials report that approximately 3.5 million people were rendered homeless and countless could be vulnerable to infections and disease. There is desperate need to get aid to those that have survived the initial quake, so that they do not have to succumb to a lack of food, water, shelter, or medicine.

Muzzafarabad, Balakot, Bagh, Rawalakot and many other towns have been turned into graveyards. Dead bodies are seen everywhere. The Washington Post reports that rescuers are pulling out dead children but there is no one to claim the bodies, which shows their parents are dead.

Understanding the necessity for swift action, the Kashmiri American Council (KAC) has formed a committee of Americans of Azad Kashmiri origin who represent all shades of opinion of the people of Azad Kashmir. The time has come for Kashmiri American Council and World Kashmir Freedom Movement to give back the gift of aid, shelter, and hope to the people of Azad Kashmir who have always been the embodiment of generosity and kindness. The committee members are the following:

Hafiz Mohammad Sabir, All Jammu & Kashmir Muslim Conference 718-434-2071
Mr. Raja Muzzafar, Jammu Kashmir Liberation Front, 718-859-6100
Mr. Akram Amin Khan, Pakistan Peoples Party Azad Kashmir, 718-338-3645
Mr. Rashid Bhatti, Jamaat-e-Islami, Azad Kashmir 718-338-6835
Mr. Sardar Irshad Khan, Azad Jammu & Kashmir Peoples Party, 914-804-0812
Dr. Ghulam N. Mir, World Kashmir Freedom Movement 330-618-8200
Dr. Ghulam Nabi Fai, Kashmiri American Council 202-628-6789

It is with this call for action that we are seeking aid for relief activities. All relief activities will be fully transparent beyond any party affiliations. All donations collected in the United States will be sent to the committee in Azad Kashmir that will comprise of the following members:

The Prime Minister of Azad Kashmir;
President, All Jammu Kashmir Muslim Conference;
President, Pakistan Peoples Party Azad Kashmir;
President, Jamaat-e-Islami, Azad Kashmir;
President, Jammu Kashmir Liberation Front;
President, Azad Jammu Kashmir Peoples Party.

Please send tax-deductible donations to:
Kashmiri American Council (KAC)
1111 - 16th Street, N.W. Suite 400
Washington, DC 20036
[note new address and zip code]

The bank information is the following:
Citibank, account number: 6650-3361
Bank routing number: 254070116
Bank address: P.O.Box 18967, Washington, DC 20036

For more information, please call:
Dr. Ghulam Nabi Fai, Executive Director
Kashmiri American Council
1111 - 16th Street, N.W. Suite 400
Washington, DC 20036. (New address)
Tel: 202-628-6789 / Fax: 202-393-0062
E-mail: kac@kashmiri.com
www.kashmiri.com

Bankrate.com on bankrupt airlines

Travelers brace for turbulence on bankrupt airlines (Brigitte Yuille, Bankrate.com, 13 December 2005):

"A bankruptcy filing is your final warning before an airline could be shut down by the bankruptcy court," says travel expert Edward Hasbrouck.

Hasbrouck warns that although operations of these airlines will look normal, this appearance may "lull consumers into complacency."...

Use, before you lose, your frequent-flier miles

"Frequent-flier miles are not money in the bank" says Hasbrouck. He says airline carriers can eliminate and change the program at any time with or without a bankruptcy.

ICANN procedures for independent review

My involvement with ICANN (the governing body of the Internet, although ICANN doesn't like to speak of itself as "governing" because that might suggest that it should be held to the same standards of democracy, public accountability, etc. as a government agency, or even that its power should be transferred to some sort of actual government entity) has gone through several stages over the last 5 years, and is now about a very different, and more fundamental, set of issues than were at stake in my initial reporting on this story.

My coverage of ICANN began with my attempt to report on what seemed a relatively straightforward story at the intersection of my interests in travel, the Internet, and consumer advocacy: the creation under ICANN's supervision of top-level Internet domain names (TLD's) restricted to the travel industry: ".aero" (for air transportation) and "travel" (originally proposed by the airline cartel IATA, but eventually approved for a wider range of the travel "industry", although still to the exclusion of travellers).

The issues for travellers, and the public interest, remain as significant (if subtle, because almost no one is actually using ".aero" or ".travel" yet) as ever. While keeping top-level domains artificially scarce to enhance their value to the handful of companies given the franchise to control them, ICANN is allocating a huge proportion of this limited Internet "namespace" for the exclusive use of the industry that sells travel-related services -- and is equating that "industry" with the entire concept of "travel". What should be a public commons is being captured by corporate interests, travel is being reduced to the purchase of services, and travellers and the rest of the public are being reduced to "consumers". ".Aero" and "travel" are the first industry-specific TLD's, making travel the test case of the corporate enclosure of this virtual commons.

ICANN's own consultants hired to evaluate the applications for TLD's agreed with me that neither airlines nor the travel "industry" adequately represent the interests of consumers and travellers. They recommended against ".travel", for this same reason, both when it was first proposed by IATA in 2000, and again when it was proposed in 2004 by the Tralliance Corp., an insolvent front corporation which turned out to have both a secret side agreement with IATA and another secret agreement to be acquired by TheGlobe.com/Voiceglo.com contingent on obtaining the franchise to control ".travel". TheGlobe.com/Voiceglo.com is itself a financially shaky company controlled by Edward Cespedes and Michael Egan, the principal owners of Florida-based tour operator Certified Vacations .

But in trying to investigate who was really behind the ".travel" proposals, and to report on ICANN's consideration of their applications, 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 -- in fundamental violation of the high-sounding commitment in its Bylaws that "ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness."

So what began as an attempt to "get the story" as a journalist, and to advocate for the interests of travellers and consumers, gradually became, of unfortunate necessity, first an attempt to hold ICANN to its purported principles of transparency and then, when that was denied, an attempt to hold ICANN accountable under its purported provisions for independent oversight.

Unfortunately, governance of the Internet by ICANN is the poster child for the efforts of the government of the USA not just to privatize and outsource to corporations the provision of government services (delivering the mail, sweeping the streets, etc.) but to privatize governance itself -- that is, to outsource to corporations the making of policy decisions -- and to impose that model of corporatized private governance on the world, regardless of any objections by other governments or global civil society.

To point out, as I have, that ICANN is arbitrary and secretive, is to call into question whether corporations can do a better job of the process of governing than the traditional institutions of democratic government (elections, courts, etc.). That's a heresy that religious devotees of "market forces" as divinely inspired, and believers in the inherent superiority of privatization, are constitutionally incapable of imagining, much less admitting. If they did, that would cast doubt on whether the "ICANN model" of delegating decision-making to private corporations should be extended to other areas where public policies are currently set by legislation or government regulations.

As a private California corporation, ICANN exercises government-style global power over the Internet, without admitting to being subject to any of the laws that protect the rights of the press and the public when we are dealing with actual government agencies.

In ICANN's Alice-In-Wonderland world of privatized governance, open meeting laws, freedom of information or "sunshine" laws, and laws guaranteeing administrative due process are replaced by corporate Bylaws on "transparency" and "accountability". And if your rights under those Bylaws are violated, as mine have been, your only possibility of redress is through -- you guessed it -- private arbitration by another corporation, not the courts.

At the most fundamental level my dispute with ICANN over access to meetings, documents, and records has become the test case of the meaning of "due process" and "judicial review" in the context of privatized government-by-corporation. What rights, if any, do the public and the press have to access to information about the process of decision making? And what, if any, accountability do corporations have to independent oversight when they are exercising the authority to determine public policy? As privatization "progresses" from delivery of services to the decision-making functions of government, these are crucial questions for the retention of any semblance of democracy and justice.

ICANN has agreed to submit to "independent" arbitration of whether they followed their own transparency Bylaws in their (non)responses to my attempts to report on ".travel". But it remains to be seen if I will be offered genuinely independent arbitration, or only a corporate kangeroo court designed by ICANN to ensure that the arbitrators of their choice rule in their favor or that the arbitration process is so expensive that I can't afford to risk having to pay for it if I lose -- which, of course, is what is required for corporate "justice".

(I invite and will welcome contributions in any amount towards the possible costs of the independent review. PayPal takes a cut out of any donations made through their system, so if you send me a check in U.S. Dollars on a bank in the USA, I'll be able to put more of it to use than if you donate through PayPal.)

Under its Bylaws, ICANN is supposed to have procedures in place for the arbitration, and to have chosen the arbitration corporation in advance. They haven't. Instead, they are trying to ignore their own decision making policies, pick their own arbitrator (with whom they may already have a secret side agreement they haven't yet showed me) eight months after I asked for arbitration, make up the rules for the arbitration as they go along, and impose them unilaterally and retroactively.

My message today to Mr. John Jeffrey (General Counsel and Corporate Secretary) et al. at ICANN is as follows:

From: "Edward Hasbrouck" edward@hasbrouck.org
To: john.jeffrey@icann.org , twomey@icann.org , [ICANN Board of Directors members]
Subject: Procedures for independent review
Date sent: Sun, 11 Dec 2005 13:04:44 -0800
Copies to: daniel.halloran@icann.org , committee@alac.icann.org , forum@alac.icann.org

Thank you for the e-mail message Mr. Jeffrey sent me during the ICANN Board of Directors meeting in Vancouver last Sunday, 4 December 2005, in which you agree that, "If you do intend to go forward with an IRP complaint, we will refer your complaint to an Independent Review Panel."

There is a link labelled, Message from John Jeffrey to Edward Hasbrouck -- ICANN -- 4 December 2005 -- .travel IRP Request on the Correspondence page of ICANN's Web site, but that link does not retrieve any file.

Since you haven't posted your message to me on the ICANN Web site, I have posted it on my Web site at:

http://hasbrouck.org/blog/archives/000945.html

I regret that you chose to reply to me by e-mail, even though we were in the same room. And I regret that ICANN's Board of Directors did not consider my request during their Vancouver meeting. Since we were all in the same place (in my case, entirely at my own personal expense, including lost wages), I believe that a face-to-face meeting could have, and still could, greatly expedite your fulfillment of the commitment you have now made to refer my request to an independent review panel -- the first step towards which would be the development of ICANN procedures for independent review, and the appointment of an independent review provider (IRP).

Much of your message consists of a statement of the substantive objections which, apparently, you intend to make to the IRP if one is ever appointed.

While I appreciate your providing me with a preview of your arguments to the IRP, I ask that you not let your preparation of arguments for the eventual independent review distract you from, or delay you in, fulfilling your current and more time-critical obligations under ICANN's Bylaws and contracts to consider and act on my request for a stay pending independent review, to develop policies and procedures for independent review, to appoint an IRP, and to refer my outstanding request to that IRP. Once these more immediate tasks are complete, you will have an opportunity to prepare and present your arguments to the IRP.

You say that, "We disagree with your assessment that you have been 'materially affected' by an action of the ICANN Board." If you continue to believe this -- particularly after reviewing the itemization of some of the ways I have been "materially affected" by ICANN's failure to comply with its transparency Bylaw, which I provided to you, at your request, in my e-mail message of 17 May 2005 -- that is an argument you can make to the IRP.

Like my first request for independent review and stay on 8 April 2005, my e-mail message to you of 17 May 2005 , reiterating my outstanding requests for independent review and stay and responding to your questions about my motives for my requests, was and is required to be posted on ICANN's Web site, as soon as you received it, in accordance with Article IV, Section 3.13 of ICANN's Bylaws. Neither of these petitions for independent review have yet been posted on ICANN's Web site, but I have posted them on my own Web site at:

http://hasbrouck.org/blog/archives/000554.html

http://hasbrouck.org/blog/archives/000585.html

Moving from the issues that will eventually be before the IRP, to those that are now before ICANN, you say that, "ICANN's agreement to have your concerns reviewed by an arbitrator will not bring a halt to ICANN's work or .TRAVEL's implementation. ICANN's Bylaws do provide that an Independent Review Panel may 'recommend that the Board stay any action,' but the Bylaws do not provide that any individual request for independent review by itself creates an automatic stay."

You mis-state the Bylaws. ICANN's Bylaws do not provide that the IRP "may" recommend a stay. Article IV, section 3.8 of the Bylaws provides that the IRP "shall have the authority to" recommend a stay. ICANN has not respected that authority.

Each of the following constitutes an ongoing affirmative act by ICANN, each of which is in violation of ICANN's bylaws, to deprive any IRP which may eventually be appointed of any meaningful "authority" to make a meaningful recommendation concerning a stay pending independent review:

(1) ICANN's continuing failure to fulfill its obligation under its Bylaws to refer my request to an independent review panel, more than 8 months after my request of 8 April 2005;

(2) ICANN's continuing failure to "have in place a ... process" for independent review, almost 3 years after the adoption on 15 December 2002 of amendments to the Bylaws requiring this;

(3) ICANN's continuing failure to have appointed an IRP, also almost 3 years after the requirement for this was added to the Bylaws; and

(4) ICANN's continuing failure to consider at any meeting of ICANN or any constituent body thereof, or to act on, my request for a stay by ICANN pending the recommendation of the IRP concerning a stay.

Time is obviously of the essence with respect to a stay. Your continuing delay constitutes a continuing and impermissible de facto denial by ICANN of the IRP's authority to recommend a stay.

I reiterate my outstanding request that ICANN stay its decision on ".travel" pending receipt of the recommendation of the IRP concerning a stay. I reiterate my request that this be considered by ICANN's Board of Directors as soon as possible, and I ask you in your capacity as Secretary to the Corporation and the Board to forward this request to each of the members of the Board -- particularly including those newly elected members who may not yet, since ICANN has not posted them on its Web site as it is required to have done, be aware of this request, or that it has not yet been considered by any ICANN body. And I continue to request that ALAC ask the Board to consider and act on this request.

You request that I "acknowledge that ICANN's Bylaws provide that 'The party not prevailing shall ordinarily be responsible for bearing all costs of the IRP Provider.'"

While this may appear at first glance to be a reasonable request, it is both unauthorized and inappropriate. Independent review of actions by ICANN is available only in cases where it is asserted that ICANN has taken a decision or action inconsistent with its Articles of Incorporation or Bylaws. In many such cases, there is likely to be a difference of opinion between ICANN and the person requesting the independent review as to what ICANN's Bylaws say, and/or what they mean. Requiring, as a precondition to ICANN's fulfillment of its obligation to refer the request to an IRP, that the requester satisfy ICANN that, in ICANN's opinion, the requester agrees with ICANN's interpretation of the content or meaning of the Bylaws, would clearly frustrate many legitimate requests for independent review.

However, to avoid anything which ICANN might be tempted to use as a pretext for further delay in referring my request to an IRP, I voluntarily acknowledge -- without prejudice to my right or the right of anyone else to make other requests for independent review without making such an acknowledgment -- that, according to ICANN's Web site, the ICANN Bylaws as they were in effect at the time I made my request for independent review on 8 April 2005, provided that, "The party not prevailing shall ordinarily be responsible for bearing all costs of the IRP Provider."

My request for independent review was made by e-mail to argentina@icann.org (the address posted on the ICANN Web site for public submissions to the ICANN meeting then in progress in Argentina), ICANN's President and CEO, Chairman of the Board of Directors, Corporate Secretary, and all those members of the Board of Directors for whom I could find e-mail addresses from the ICANN Web site, while the Board of Directors meeting of 8 April 2005 was still in session. Amendments to the Bylaws were adopted earlier during that same meeting. So far as I can tell, those amendments were effective immediately. So the version of ICANN's Bylaws applicable to these requests is that which came into effect 8 April 2005, as represented by ICANN on its Web site at:

http://www.icann.org/general/archive-bylaws/bylaws-08apr05.htm

You say that, "we must be assured that you will be willing and able to post the appropriate payments (approximately US$3250 for the filing fees portion of the IRP costs) before commencement of any action, and that you will be prepared to pay all the costs of the IRP provider in the event that you do not prevail in this action."

While you speak of what you believe to be required "before commencement of any action", this action commenced 8 April 2005 with your receipt of my formal request for independent review.

While you use the imperative "must", there is no publicly disclosed resolution of ICANN's Board of Directors, nor any publicly disclosed decision of any ICANN body, that imposes any such preconditions to independent review in terms of "filing fees" or the disclosure of personal financial information.

Even assuming (which I do not concede) that any such preconditions could be imposed consistently with the Bylaws, any policies to impose such fees or financial conditions, require such disclosure of personal financial information by those making requests for independent review, put in place procedures for independent review, or appoint an IRP, would clearly be "policies that are being considered by the Board for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges", as defined in Article III, Section 6, of the Bylaws , and subject to the requirements of that Section.

Since the adoption of the present provisions of the Bylaws on independent review 15 December 2002, no such policies related to independent review have been proposed or adopted in accordance with the requirements of that Section of the Bylaws.

You ask me to "please provide us with your formal IRP request". I have copied it again at the end of this message. But as you know, this request was first provided to you 8 April 2005.

You say that, "we will forward your request to the International Centre for Dispute Resolution which ICANN has designated to provide independent review services in accordance with the Bylaws." But as I have noted above, ICANN has made no such designation, at least not through any publicly-disclosed decision or through the decision-making procedures required by the Bylaws.

The only mention I can find on the ICANN Web site of any "decision" related to the International Centre for Dispute Resolution (ICDR) is Board of Directors Resolution 04.33 of 19 April 2004, at:

http://www.icann.org/minutes/resolutions-19apr04.htm

This Resolution 04.33 neither puts in place procedures for independent review, nor appoints an IRP. And it was not adopted in accordance with any of the requirements of Article 3, Section 6, of the Bylaws , that would have applied to it if it was considered to have constituted such a policy.

Procedures for independent review, and the appointment of an IRP, substantially affect anyone who might ever want to make a request for independent review, and are subject to Article 3, Section 6 .

Neither (1) any proposal for Resolution 04.33, (2) the proposal from [ICDR] on which it was based, (3) any proposed contract between ICANN and [ICDR], (4) any policies, fees, or charges they might have contained, nor (5) any statement of reasons why they were being proposed, was ever published on the ICANN Web site.

There was no 21-day notice of the proposal, no forum for public comment on the proposal, and no request for the opinion of the Government Advisory Committee, even though oversight policies and procedures clearly affect "public policy concerns". (For example, the authority of governments, under their national laws, to delegate decision-making authority to ICANN or to participate in ICANN processes may depend on whether ICANN procedures satisfy the requirements of those national laws for administrative due process, public access, oversight, accountability, and so forth.)

Resolution 04.33 was "adopted" at a closed Board "meeting" by telephone, from which journalists, stakeholders, and any other would-be observers (except those, whose identities remain secret, whom ICANN may have chosen to permit to participate in or to audit the teleconference) were excluded. More than a year and a half later, no minutes of this "meeting" have been made public (in violation of ICANN's bylaws), and no transcript or audio recording of this "meeting" has been made public.

Assuming (which I do not concede) that Resolution 04.33 was validly adopted -- even under the rules applicable to a non-policy resolution that did not impose charges or fees -- that resolution merely authorized, but did not require, the "engagement" of the IDRP to provide unspecified services in accordance with a proposal by IDRP which has never been publicly disclosed.

It is impossible for me to determine whether any contract such as was authorized was ever entered into between ICANN and [ICDR], or what the terms of that contract may be. I reiterate my request for a complete copy of any and all ICANN policies and procedures for independent review (if any), as well as any contract(s) between ICANN and any provider(s) of independent review services.

I cannot decide, for example, whether to elect a one-member panel of arbitrators or a three-member panel until the procedures are in place, and I can determine the effect of that election on the potential cost of the IRP. Similarly, I cannot decide whether to request a purely declaratory opinion, or to request the award of nominal or actual damages (for the reduced value of licenses in my copyrighted journalistic works resulting from ICANN's violations of its Bylaws on transparency) until the procedures for independent review are in place, and I can tell whether the potential costs of the IRP may be less if I request nominal or actual damages than if I request a non-monetary recommendation.

Resolution 04.34 , adopted at the same time as Resolution 04.33, specifically authorizes ICANN staff to continue negotiating with other providers of independent review services, thus indicating that the contract authorized by Resolution 04.33, if it was ever entered into, could not have been an exclusive contract or have constituted the required "appointment" of an IRP.

More than a year and a half after the "adoption" of Resolution 04.33, no procedures for independent review have been posted on the ICANN Web site, as would have been required under Article IV, Section 3.13 as soon as they were available -- further confirming that ICANN did not consider itself to have in place such procedures, or to have appointed the IRP.

You may have "appointed" an IRP in your own mind, and you may be accustomed to imposing your will as ICANN's law. But that's not the decision-making process for policies, charges, or fees that is required by ICANN's Bylaws. I insist that you follow your own rules, and bring your actions as officers and Directors, and the actions of the Corporation, into compliance with its Bylaws and its contractual commitments to transparency and oversight.

You can't just make the procedures, charges, or fees up as you go along, or impose them unilaterally or retroactively.

ICANN did not, in fact, "have in place" any duly-adopted procedures for independent review at the time I made my request, and does not now. ICANN had not, and still has not, in fact, duly "appointed" an IRP. And ICANN had not, and has not, posted such duly-adopted procedures for independent review, or "all petitions, claims, and declarations", on the ICANN Web site.

The next step for ICANN -- after consideration of and action on my request for a stay -- in referring my request to an IRP, as you are obligated by your Bylaws to do and as you have now agreed to do, is to begin a maximally open and transparent process of developing policies and procedures for independent review, and selecting and appointing an IRP, in accordance with the Bylaws. I urge you to schedule and give notice of a meeting for the purpose of beginning this process as soon as possible.

"Additionally,", you say, "we are interested in whether you have engaged Tralliance directly regarding your grievances." As I have explained repeatedly to you, and on my Web site, my grievance is with ICANN, and concerns ICANN's failure to act in accordance with ICANN's Bylaws. The Tralliance division of TheGlobe.com/Voiceglo.com is not a party to this grievance.

I have explained this distinction repeatedly, including in my comments to the public forum before the Board of Directors in Vancouver on 4 December 2005, in my e-mail message to you of 17 May 2005, and in my blog at:

http://hasbrouck.org/blog/archives/000557.html

So far as I can tell, if Tralliance/TheGlobe.com/Voiceglo.com have an "interest" in my request for independent review of ICANN's actions, it is an interest in having my request referred to an IRP as soon as possible, so that the uncertainty -- as to whether the IRP will recommend that ICANN's decision on ".travel" be upheld or be voided -- will be resolved as soon as possible. I have done my best to advance that mutual interest of myself and of Tralliance/TheGlobe.com/Voiceglo.com in prompt review.

I have done everything in my power to minimize any unavoidable side effects on Tralliance/TheGlobe.com/Voiceglo.com or anyone else who, like those corporations, is not a party to this request. I gave advance notice of my intention to make this request if ICANN proceeded with this decision:

http://hasbrouck.org/blog/archives/000553.html

http://www.icann.org/correspondence/hasbrouck-to-icann-07apr05.htm

I made my request as promptly as humanly possible after ICANN's decision, while the meeting of ICANN's Board of Directors was still in session, so as to permit the referral of my request to an IRP (if procedures for doing so had been in place, which they weren't as a result of ICANN's prior and continuing inaction) during that same meeting.

I have been trying diligently to get ICANN to act on my request as promptly as possible, and to minimize the delay and the resultant uncertainly for Tralliance/TheGlobe.com/Voiceglo.com and anyone else with an interest in the decision that is subject to my request for independent review and stay.

On the other hand, both ICANN and Tralliance/TheGlobe.com/Voiceglo.com have taken deliberate unnecessary actions that have materially contributed to their own financial risk and liability in relation to my requests for independent review and stay.

ICANN's continuing failure to have in place procedures for independent review or to have appointed an IRP, and ICANN's continuing delay in acting on my requests, have greatly prolonged the uncertainty for Tralliance/TheGlobe.com/Voiceglo.com, and compounded ICANN's potential liability to Tralliance/TheGlobe.com/Voiceglo.com (and perhaps other parties) should the IRP find that ICANN's decision on ".travel" is void as not having been made in accordance with ICANN's Bylaws.

ICANN's continuing failure to post my requests for independent review on the ICANN Web site, or to mention them in any of their statements concerning the decision subject to my request for independent review, has deprived third parties of the notice to which they were entitled under ICANN's Bylaws that a request for independent review was pending, greatly increasing ICANN's potential liability if third parties have relied on ICANN's Web site in determining whether such a request had been made.

Tralliance/TheGlobe.com/Voiceglo.com has contributed to its potential liability by choosing not to disclose to its shareholders my pending request for independent review, and the uncertainty as to whether ICANN's decision on ".travel" will be upheld or voided as a result of the independent review.

In addition, Mr. Ron Andruff, CEO of the Tralliance division of TheGlobe.com/Voiceglo.com, told me at the ICANN meeting in Vancouver that his company has chosen not to make any contingency plans or preparations for the possibility that ICANN's decision on "travel" might be stayed or voided as a result of the independent review which I have requested.

Mr. Andruff told me that this was because, speaking of ICANN and independent review, "They're never going to allow that to happen."

I hope that your future actions -- unlike your actions to date -- will begin to demonstrate that Mr. Andruff's confidence in your unwillingness to do what you are legally required to do was misplaced.

Finally, as I noted to you in my e-mail message of 17 May 2005:

"ICANN may be obliged (as a result of its own prior inaction and failure to have in place the policies and procedures for independent review required by its Bylaws and promised in its contract with the USA Department of Commerce) to develop policies and procedures for independent review while my request and others are pending. For this reason, it is especially important for that policy development process to be conducted with the maximum extent feasible of openness and transparency. Otherwise, it will be impossible to tell whether the independent review policies and procedures may have been crafted to influence the outcome of the specific pending requests for independent review."

Accordingly, I remind you of my outstanding request that you advise me of the date, time, place, manner, and available means for attending, observing, or auditing any meeting of ICANN or any constituent body to consider my requests for independent review and stay pending independent review, or independent review policies, as soon as such a meeting is planned or scheduled.

I hope to hear from you, without further delay, regarding the scheduling of a meeting to consider my request for a stay by ICANN pending receipt of the recommendation of the IRP concerning a stay, and to begin the process of developing ICANN policies and procedures for independent review and the selection and appointment of an IRP to consider my request and the other outstanding request(s) for independent review of ICANN actions.

Please let me know as soon as possible if you are still confused or uncertain as to what actions by you I have been, and am, requesting.

Sincerely,

Edward Hasbrouck

------- Forwarded message follows -------

From: "Edward Hasbrouck" edward@hasbrouck.org
To: argentina@icann.org
Subject: Request for independent review
Copies to: [ICANN Board of Directors members], twomey@icann.org , jeffrey@icann.org
Date sent: Fri, 08 Apr 2005 05:56:02 -0800

I request that this message be entered into the record of today's Board meeting and posted on the ICANN Web site.

I again request, for the reasons stated in my comments to yesterday's public forum , that today's resolution of the ICANN Board of Directors to approve a ".travel" agreement be referred to an independent review panel (IRP) in accordance with Article 4, section 3 of the Bylaws.

I again request that the Board, President, and staff stay any action on a ".travel" agreement until such time as the Board reviews and acts upon the opinion of the IRP, and while this request for a recommendation from the IRP for a stay is pending. If the Board does not stay its decision, that will deprive the IRP of any meaningful "authority" (as the IRP is given under the Bylaws) to make any meaningful recommendation for a stay.

I reserve the right to make additional written submissions to the IRP once the policies and procedures for independent review have been determined.

And I again request notice, as far in advance and in as much detail as is known, of the time, place, and manner of any meetings to be held by ICANN or any of its constituent bodies, and for copies of any documents to be considered by them, related to ".travel", to my requests, or to policies for independent review of ICANN actions.

------- End of forwarded message -------

Appeals Court hearing on airline ID requirement

As I mentioned yesterday, the 9th Circuit U.S. Court of Appeals heard oral argument this morning in Gilmore vs. Gonzales (originally Gilmore vs. Ashcroft ), the U.S. Federal case challenging the secrecy and the legality of the requirement for would-be travellers to "show ID" (a surprisingly ambiguous phrase) as a precondition to travel within the USA by airline common carrier or to the exercise of their Constitutional right, under the First Amendment, to assemble by means of air travel.

Fortunately the 9th Circuit sits in San Francisco only a few blocks from my office at Airtreks.com South of Market, and I was able to take the morning off to attend the appellate hearing. (Currently the court uses the elegant and functional former San Francisco main Post Office and District Courthouse where I used to collect the mail for the National Resistance Committee from our post office box. But the 9th Circuit has a hideous new highrise fortress, making astonishingly inefficient use of its space, under construction across the street for its future home.)

Most of the hearing was devoted to procedural and jurisdictional issues of little interest to the majority of my readers who, unlike me, probably don't read law for fun.

There is no required calendar for the Circuit Court's decision, but it probably won't come for at least a month or two, perhaps longer.

The good news, as I read the tea leaves of the argument, is that it appears that John Gilmore and the cause he has taken up will eventually get their day in court, and may get it somewhat sooner rather than later: the 3 judges seemed inclined, if they rule that the case should first have been filed with them instead of with the district court, to order it transferred to their jurisdiction, rather than ordering it dismissed and making Mr. Gilmore start over from scratch in the circuit court.

The bad news is that it seems that the judges just don't get it on two points that are key to the case:

First, the judges seemed to have no recognition of air travel or travel in general as an act of assembly, an activity protected under the First Amendment, or a right protected by Federal law. They seemed to assume that ID is not required for other means of travel (ID is increasingly required, as Gilmore's attorney Jim Harrison pointed out, for travel by every means from Amtrak and Greyhound to passenger ships and ferries; the government's lawyer suggested that Mr. Gilmore could "hire a chauffeur" if he didn't want to show ID, which might be characterized as the "Let them eat cake" theory of travel rights), and that Mr. Gilmore "could just leave" the airport if he didn't want to show ID to travel by air.

But as I've noted earlier in relation to this appeal, airlines can be licensed under U.S. Federal law only on condition that they agree to operate as "common carriers". Unlike some other businesses, they can't say, "We reserve the right to refuse service", or tell a would-be passenger to take their business elsewhere. It would be a Federal offense for an airline to refuse to transport (as both Southwest and United did in Mr. Gilmore's case) anyone who is willing to pay the fare in their published tariff and complies with their published conditions of carriage, as that tariff and those conditions are filed with the government.

Second, none of the judges seemed to recognize the distinction between "asking for ID" and "requiring the showing of ID", despite the crucial role that distinction played in the Supreme Court's decision on ID demands earlier this year in Hiibel vs. Nevada .

ID as "identity" (a concept or personal attribute) is not the same as ID as "a document or other credential providing evidence of one's identity" (an object).

I pointed this out at the time of the Hiibel decision, and Professor Michael Froomkin noted the same point then and again more recently in relation to the case of Deborah Davis, who was scheduled for arraignment tomorrow in Denver for refusing to show ID in order to ride a public bus but against whom charges were dropped at the last minute.

There are four distinct potential components to an "ID" rule, each raising different legal issues and potentially subject to different legal analysis: (1) asking for verbal self-identification (the right to ask a question); (2) demanding such self-identification (the right to impose sanctions, such as more intrusive search, as a penalty for silence or an unsatisfactory answer, which raises the privilege against self-incrimination); (3) demanding that tangible credentials of identity be produced and displayed for visual inspection -- or, perhaps, that RFID credentials be removed from an RF shield and exposed to RF interrogation (it's the demand for the production and display of the tangible object, and its exposure to visual or RF inspection, that constitutes a "search" and raises 4th Amendment issues); and (4) requiring that the proffered credential satisfy specified criteria of acceptability as a condition of being permitted to take some action or avoid some sanction (which raises questions of due process in how that determination is made, as well as its permissibility as a precondition to exercising any legal right such as the right to assemble or to travel by common carrier).

The Supreme Court explicitly recognized at least part of this set of distinctions. It found that Hiibel had only been subjected to a (permissible, it found, although in circumstances different from those in Mr. Gilmore's case) demand to identify himself verbally (items 1 and 2) above, and not to a demand to produce or display any identity documents. As a result, the Supreme Court found that the ID demand, being limited to a demand for verbal self-identification, didn't constitute a "search". Not being presented (they said) with circumstances 3 or 4 above, the Supreme Court didn't address or decide any of the issues they would have raised.

(The Supreme Court got the facts wrong. The video clearly shows that Hiibel was asked repeatedly, "Show some ID", not "State your name". That was a search, not just an interrogation. But the precedent is applied on the basis of the "facts" as the Supreme Court found them, not the actual facts.)

In today's hearing, Judge Trott in particular kept asking questions like, "What's your best case for the proposition that asking for ID is a search?" While Mr. Harrison immediately answered, "Hiibel", it wasn't clear that Judge Trott recognized the critical distinction in the Hiibel decision between the (permissible) questioning in that case, and the (potentially impermissible) search embodied in a demand for tangible credentials.

Mr. Gilmore had, in fact, identified himself to the airlines prior to attempting to travel: In each case, he had presented a ticket showing his name. It's impossible under IATA standards to issue tickets without specifying on them the name of the passenger. Since those tickets were, under the contractual conditions in the airlines' tariffs, non-transferable, it would have been a breach of contract and perhaps a Federal crime (fraud and/or attempted theft of services) for him to attempt to fly on those tickets if he were anyone other than the person for whom they were originally purchased.

I don't know if Mr. Gilmore was verbally asked, or stated, his name -- so far as I can tell, the record is silent on that point. But by presenting himself for transportation, and presenting those tickets as entitling him to passage, he was implicitly making a legally binding self-declaration as to his name and identity.

This case is not, therefore, about anonymous travel, an interesting but irrelevant side issue that was raised in this morning's argument. It's not about whether Mr. Gilmore could be asked for ID (he was, in effect, when he was asked to present a name-identified non-transferable ticket) or whether Mr. Gilmore could be sanctioned for failing to identify himself (he did identify himself).

The issue in this case is specifically about the legality of the search embodied in the demand for tangible evidence of identity, and the lack of due process embodied in the secrecy of the "rule" requiring production of ID credentials (whose existence, even today, government counsel would "neither confirm nor deny") and the lack of any publicly-disclosed criteria as to what evidence of identity is sufficient, or how its sufficiency is to be determined.

A demand, by or at the behest of the government, to take out something on or about your person (but not otherwise in public view), and display it for their inspection, is a search -- whether that demand takes the form of, "If you have any pot in your pockets, show it to me," or "If you have any ID cards in your pockets, show them to me".

Blog-based articles in print

I mostly write printed books and electronic articles. But occasionally my articles end up in print, and I'm always open to offers for print licensing or adaptation of articles from my blog, Web site, or e-mail newsletter.

The Fall 2005 issue of American Writer (see pages 10-11), the magazine of the National Writers Union of the USA, is now online, featuring two of my articles on electronic copyright infringement .

And the lead article in the October 2005 issue of Privacy Journal (not available online) is an article on the "Clear" traveller registration program based on an earlier article in my blog.

Court hearings and rallies this week for the right to travel

Thursday morning, 8 December 2005, in San Francisco the 9th Circuit Court of Appeals at 95-7th Street (the ornate old former Post Office at the corner of 7th and Mission Streets, across from the new Federal Courthouse under construction on the site of the former Greyhound bus station), Courtroom 3, 3rd floor, will hear oral argument sometime between 9:00 and 11:00 a.m. in Gilmore vs. Gonzales (originally Gilmore vs. Ashcroft ), challenging the "secret law" requiring airline passengers on domestic flights within the USA to produce documentary evidence of their identity in order to exercise their First Amendment right to freedom of travel and assembly.

Friday morning, 9 December 2005, in Denver there will be a rally for the right to travel at 8:30 a.m. on steps of the Alfred A. Arraj U.S. Courthouse, 901-19th Street, "a modern building at the corner of 19th and Champa in downtown Denver (not to be confused with the other white-columned federal courthouse building nearby)". The rally precedes the arraignment on Federal criminal charges of Deborah Davis for refusing to produce identity credentials on warrntless, suspicionless demand of police while she was riding a municipal bus on a route that passes through (without stopping) the Denver Federal Center complex of public buildings ("Visitors Welcome" say the sign and banners ). I'm sorry I haven't blogged this outrage sooner, but you can get all the outrageous details on her Web site .

The Amazing Race 8 (Family Edition), Episode 9

Salt Lake City, UT (USA) - Park City, UT (USA) - Heber City, UT (USA) - Bonneville Salt Flats, UT (USA) - Garden City, UT (USA) - Big Pine, WY (USA) - Yellowstone National Park, WY (USA) - Dubois, WY (USA) - Cody, WY (USA) - Red Lodge, MT (USA) - Absorokee, MT (USA)

Throughout this season of "The Amazing Race", loyal viewers of previous seasons have been complaining that there's been less, this time around, of what makes world travel really attractive and rewarding. Certainly those complaints continued throughout the two-week leg of the race that concluded tonight in Montana.

Why?

It's not, I think, because they've stayed in North and Central America. There's plenty for travellers to see and do in the USA -- arguably the world's most diverse sovereign nation in physical geography (rivalled only by China) if not culture. There's a world of difference just across the border in Mexico. And Canada, as I was reminded during my trip to Vancouver last week, is pleasantly different from the USA, albeit in sometimes less conspicuous ways.

Nor is it just because they've spent so much time in motor vehicles, although that did have something to do with it. The latest episode of the race featured product placements for a remarkable range of vehicles, from house trailers and trucks towing them to vans (chauffeur driven in what appeared to be a reenactment of a scene from an "SUV" advertisement, or perhaps the filming of a future ad that will play on the connection to the race), a car (a prize for the winner of the episode), and ... golf carts (brand name identified). And a car or truck is remarkably effective at caging you in as a tourist, and caging out the world through which you pass. But a road trip -- whether in the USA, Canada, Argentina, South Africa, Australia, or any other automotive society -- can, if you make an effort to get out of your vehicle more often, be a great way to explore a country.

And it wasn't even a lack of interesting challenges in this episode, which included laying railroad track (more complicated than most people who haven't seen it don't realize) last week, and building tepees this week.

The first time "The Amazing Race" had a tepee-building challenge was during The Amazing Race 5 in Alberta, Canada. It got edited out of the broadcast, as has happened to other challenges from time to time -- the DVD of the first season includes bonus footage of an ostrich egg eating challenge that got left on the cutting-room floor. That left the eyewitness photos and descriptions on my blog, and a few less detailed photos on the CBS Web site, as the only record of the tepee building.

But I guess the producers really liked it, since they set the tepee challenge up exactly the same way again -- except that this time they drove the racers out into the middle of a private ranch to build their tepees out of public view, instead of having them do it in the parking lot of a public park.

No, the real reason I think this season is so (relatively) uninteresting is that there has been so much less interaction between the racers and local people. And that's primarily because they are travelling in larger groups than in the previous seasons: teams of four (each accompanied by a photographer and a sound technician) instead of two.

The larger the group with which you travel, the more your conversations and attention are focused on your travelling companion(s), and the less on the people and places along the way.

And large groups just aren't as approachable as solo travellers. When six people get out of a van, they form a closed-seeming group of their own no matter how friendly they are, and most people will tend to "leave them to themselves" in a way that they wouldn't a solo traveller or a couple. Solo travellers are immersed in, and experience, the places they visit in a fundamentally different and deeper way than is ever possible for group travellers. (Travelling with a companion has its own, different advantages, such as getting the benefit of your companion's different perspective and insights into the new things that you are both trying to understand.)

Being in a larger group also slows the racers down, as was evident in this episode. As my usual travelling companion, a statistics teacher by profession, puts it, "The amount of time its takes to get out the door together increases exponentially with the number of people."

So if you didn't like this season of the race, let it be a lesson in the drawbacks of group travel compared to travel on your own or with fewer companions.

Fortunately (in the opinion of most viewers) this season of four-person teams is almost over, with the two-hour finale next week. The Amazing Race 9 is already being filmed, if (unconfirmed) reports of spottings posted in this blog and elsewhere are to be believed, and is back to teams of two. Keep your eyes out for the flags and racers!

Statement to the ICANN Board of Directors

I'm not sure whether it was the tipping point in ICANN's agreement the next morning to allow an independent review of the lack of transparency in their decision to create a .travel top-level Internet domain name, but the following was my statement to ICANN's Board of Directors at their absurdly brief public comment forum Saturday in Vancouver, as taken from the real-time captioning of the meeting:

>>VINT CERF: THANK YOU FOR A CONCRETE RECOMMENDATION.

MR. HASBROUCK.

>>ED HASBROUCK: MY NAME IS EDWARD HASBROUCK, AND I HAVE A VERY CONCRETE RECOMMENDATION AND DEMAND THAT THIS BOARD PROMPTLY, THAT IS, AT YOUR MEETING TOMORROW, REFER MY OUTSTANDING INDEPENDENT REVIEW REQUEST TO AN INDEPENDENT REVIEW PANEL CHARGED WITH DETERMINING WHETHER ICANN'S DECISION-MAKING PROCESS ON DOT TRAVEL COMPLIED WITH ICANN'S TRANSPARENCY BYLAW , AND THAT ICANN STAY ITS DECISION ON DOT TRAVEL PENDING RECEIPT OF THE RECOMMENDATION OF THE INDEPENDENT REVIEW PANEL ON MY REQUEST.

I THINK THERE'S BEEN A GREAT DEAL OF CONFUSION ABOUT THIS REQUEST.

I'M A TRAVEL JOURNALIST, AND I HAVE TRIED TO THE BEST OF MY PROFESSIONAL ABILITY TO REPORT ON ISSUES RELATED TO THE INTERNET AND TRAVEL, WHICH IS THE FOCUS OF ONE OF MY BOOKS AND A MAJOR TOPIC OF MY WRITING ONLINE.

I'VE REPORTED ON A LOT OF OUTSTANDING QUESTIONS , NOT LEAST, "WHAT IS THE RELATIONSHIP BETWEEN IATA AND TRALLIANCE?", AND "WHY WAS THE RECOMMENDATION OF THE INDEPENDENT EVALUATORS OVERRULED?"

BUT [IF SOME OF THOSE] QUESTIONS REMAIN UNANSWERED AND I HAVE BEEN FORCED TO RELY ON THE SOURCES I HAVE, THAT'S LARGELY BECAUSE OF THE LACK OF TRANSPARENCY THAT'S DENIED ME ACCESS TO THE PRIMARY SOURCES, DENIED ME OPPORTUNITY TO [BE AT] THE MEETINGS AT WHICH DECISIONS WERE MADE AND TO LOOK AT THE DOCUMENTS THAT WERE REVIEWED BY ICANN ITSELF.

MY -- THE SUBJECT OF THIS REQUEST IS NOT TO ASK WHETHER YOU AGREE WITH WHAT I'VE WRITTEN.

IT IS NOT TO ASK THAT ICANN RECONSIDER ANY OF THE SUBSTANTIVE GROUNDS FOR ITS DECISION ON DOT TRAVEL.

IT IS NOT TO DETERMINE WHETHER YOU BELIEVE THAT ICANN SHOULD OR SHOULD NOT MAKE DECISIONS TRANSPARENTLY.

IF YOU BELIEVE THAT ICANN SHOULDN'T MAKE DECISIONS TRANSPARENTLY, MAKE A PROPOSAL TO CHANGE THE TRANSPARENCY BYLAW.

IT IS NOT ASKING WHAT IS YOUR OPINION AS TO WHETHER ICANN ACTED TRANSPARENTLY.

INDEPENDENT REVIEW IS AVAILABLE ONLY WHERE SOMEONE ALLEGES THAT ICANN HAS NOT FOLLOWED ITS BYLAWS.

IT STANDS TO REASON THAT IN MOST SUCH CASES, ICANN WILL BELIEVE THAT IT HAD ACTED IN ACCORDANCE WITH THE BYLAWS.

THAT IN NO WAY GIVES YOU THE RIGHT NOT TO REFER THE REQUEST TO AN INDEPENDENT REVIEW PANEL.

IF YOU BELIEVE THAT I'M WRONG AND THAT YOU ACTED PROPERLY, REFER THE REQUEST TO AN INDEPENDENT REVIEW PANEL.

IT WILL UPHOLD YOUR DECISION AND I'LL HAVE TO PAY FOR THE ARBITRATION.

I'M HERE AT MY OWN EXPENSE, TREMBLING WITH FEAR THAT ICANN IS GOING TO TRY TO FIND SOME WAY TO DRIVE UP THE COSTS OF THE ARBITRATION TO BANKRUPT ME.

AT THE SAME TIME, I'M FULLY AWARE OF THE RISK I'M TAKING, AND IT'S NOT FOR YOU TO DECIDE WHETHER I SHOULD TAKE THAT RISK.

AGAIN, THERE'S BEEN A LOT OF OFF-TOPIC DISCUSSION.

I DON'T EVEN KNOW WHAT THIS IS GOING TO COST.

I HAVE BEEN SPECIFICALLY ASKING SINCE MAY FOR A COPY OF ICANN'S POLICIES AND PROCEDURES ON INDEPENDENT REVIEW, IF THERE ARE ANY.

THE BYLAW SAYS "ICANN SHALL HAVE IN PLACE POLICIES FOR INDEPENDENT REVIEW," CLEARLY CONTEMPLATING THE EXISTENCE OF POLICIES ADDITIONAL TO THE BYLAW ITSELF.

I HAVE NOT RECEIVED THEM.

I AM STILL WAITING FOR THEM.

THE LAST COMMUNICATION, AFTER A VERY DESULTORY EXCHANGE OF E-MAILS -- EXCERPTS OF WHICH WERE PUBLISHED BY ICANN, BUT NOT ALL OF THEM, INCLUDING BIZARRE CLAIMS TO THINK I HAD GIVEN UP MY REQUEST -- THE LAST OF THOSE WAS A MESSAGE SAYING THAT ICANN WAS RESEARCHING AND REVIEWING MY REQUESTS AND WOULD GET BACK TO ME.

I'M STILL WAITING, EIGHT MONTHS LATER.

AND IF ICANN TAKES NO ACTION ON THIS REQUEST, I THINK IT WILL BE APPARENT TO THE WORLD THAT CONTRARY TO YOUR LEGAL OBLIGATIONS AS OFFICERS OF A CORPORATION WHOSE BYLAWS PROVIDE FOR INDEPENDENT REVIEW AND CONTRARY TO YOUR CONTRACTUAL COMMITMENTS TO PROVIDE FOR IT, ICANN DOES NOT, IN FACT, HAVE AN OVERSIGHT PROCESS.

SO I URGE YOU TO PROVE THAT YOU DO BY VOTING TOMORROW TO REFER MY REQUEST TO AN INDEPENDENT REVIEW PANEL AND TO STAY THAT REQUEST TO AFFORD THE PANEL THE AUTHORITY IT IS GUARANTEED BY THE BYLAWS TO MAKE A -- A MEANINGFUL RECOMMENDATION FOR A STAY PENDING INDEPENDENT REVIEW.

THANK YOU.

>>VINT CERF: MR. HASBROUCK, GENERAL COUNSEL IS PREPARED TO PROVIDE YOU WITH THE DETAILS OF HOW TO GO ABOUT THIS PROCEDURE.

>>ED HASBROUCK: WHEN?

>>VINT CERF: JJ?

I ASSUME WITHIN THE WEEK, IF NOT TOMORROW MORNING.

>>ED HASBROUCK: I WILL BE HERE TOMORROW.

WHERE IS HE?

I'D LIKE TO MEET HIM.

LET'S GET ON WITH THIS DISCUSSION.

>>VINT CERF: OKAY.

CAN WE -- CAN WE MOVE ON, MR. HASBROUCK?

>>ED HASBROUCK: ARE YOU AGREEING THAT YOU WILL TAKE ACTION?

>>VINT CERF: MR. HASBROUCK, WHAT I HAVE JUST SAID IS THAT THE GENERAL COUNSEL WILL PROVIDE YOU WITH DETAILS OF HOW TO INITIATE YOUR ACTION.

>>ED HASBROUCK: I AM STILL WAITING.

ICANN agrees to allow an independent review of its lack of transparency

Half an hour into the ICANN Board of Directors' meeting this morning in Vancouver, General Counsel John O. Jeffrey sent me an e-mail message across the room from his seat behind the Board members, indicating that ICANN agrees (with some conditions, qualifications, and disclaimers) to refer my request to an independent review panel (IRP) charged with determmining whether ICANN has acted in accordance with its own Bylaws on transparency, as required by ICANN's Bylaws on accountability.

This will be the first independent review in ICANN's history, although mine is not the first request for independent review, and other such requests remain outstanding .

ICANN's agreement to carry out its obligation to refer my rquest to an IRP comes almost 8 months after my formal request for independent review. Mr. Jeffrey's e-mail message gives no indication of how rapidly ICANN will act to carry out the promised referral, although he says that "ICANN's agreement to have your concerns reviewed by an arbitrator will not bring a halt to ICANN's work or .TRAVEL's implementation", effectively denying (or, more precisely, continuing the ongoing de facto denial by inaction of) my request for a stay. And Mr. Jeffrey still claims not to understand how denying access to meetings, documents, and records materially affects me as a journalist: "We disagree with your assessment that you have been 'materially affected' by an action of the ICANN Board."

According to Mr. Jeffrey, I will be required "to post the appropriate payments (approximately US$3250 for the filing fees portion of the IRP costs) before commencement of any action, and ... be prepared to pay all the costs of the IRP provider in the event that you do not prevail in this action."

I'm here entirely at my own expense. I invite and will welcome any financial contributions toward the costs of the independent review.

I have posted Mr. Jeffrey's e-mail message below in the extended entry. I will post the response I am preparing to send as soon as I am able to do so.

I thank all those whose support has helped to induce ICANN finally to agree to act on my request.

Mr. Jeffrey's message is as follows:

From: John Jeffrey "john.jeffrey@icann.org"
Subject: IRP Request
Date: Sun, 4 Dec 2005 08:56:32 -0800
To: edward@hasbrouck.org
Cc: Vint Cerf "vint@google.com", Daniel Halloran "daniel.halloran@icann.org"

Dear Mr. Hasbrouck,

Thank you for forwarding your messages and requests to ICANN's Board and staff and for your additional clarification of your request during the Public Forum.

We now understand from your recent communications, and particularly your comments at the open microphone at today's Public Forum in Vancouver, that you are still interested in pursuing an Independent Review Process, as set out in the ICANN Bylaws. The issue that you are setting forth as I understand it from your correspondence is whether ICANN made appropriate efforts to conduct the STLD process with as much transparency as was "feasible", consistent with the goal ICANN has established for itself in its Bylaws to 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-1

My original message to you http://www.icann.org/correspondence/jeffrey-to-hasbrouck-12may05.htm (dated 12 May 2005) described the extensive opportunities for public input and public information that was made available to interested parties during the course of the STLD process, including the public development of the process and criteria, the public posting of the non-confidential portions of the STLD applications http://www.icann.org/tlds/stld-apps-19mar04/stld-public-comments.htm , and the public review of the proposed agreements with the successful applicants. Most recently, we have also posted the evaluation reports and associated materials requested and submitted during the evaluation process http://www.icann.org/tlds/stld-apps-19mar04/ . We disagree with your assessment that you have been "materially affected" by an action of the ICANN Board.

Please note that ICANN's agreement to have your concerns reviewed by an arbitrator will not bring a halt to ICANN's work or .TRAVEL's implementation. ICANN's Bylaws do provide that an Independent Review Panel may "recommend that the Board stay any action," but the Bylaws do not provide that any individual request for independent review by itself creates an automatic stay.

Lastly, we were unable to find anywhere in your correspondence a confirmation that you acknowledge that ICANN's Bylaws provide that "The party not prevailing shall ordinarily be responsible for bearing all costs of the IRP Provider." http://www.icann.org/general/bylaws.htm#IV-3.12 , as we have previously asked you to acknowlege. If you do intend to go forward with an IRP complaint, we will refer your complaint to an Independent Review Panel, but we must be assured that you will be willing and able to post the appropriate payments (approximately US$3250 for the filing fees portion of the IRP costs) before commencement of any action, and that you will be prepared to pay all the costs of the IRP provider in the event that you do not prevail in this action.

Assuming that this is acceptable, please provide us with your formal IRP request and we will forward your request to the International Centre for Dispute Resolution which ICANN has designated to provide independent review services in accordance with the Bylaws. Details about ICDR's procedures and fees are available on their website at http://www.adr.org/International .

Additionally, we are interested in whether you have engaged Tralliance directly regarding your grievances, and ask that you provide us with information regarding this if you intend to proceed with your request for relief so that we can understand how any harm may or may not have been remedied.

Thank you for your attention. Please feel free to call or write if you have any questions.

Best regards,

John O. Jeffrey
General Counsel
ICANN
Jeffrey@ICANN.org
Internet Corporation for Assigned
Names and Numbers (ICANN)
4676 Admiralty Way
Marina del Rey, CA 90292-6601
www.ICANN.org
+1.310.823.9358 main
+1.310.823.8649 fax

ICANN admits it overruled its own evaluators' recommendation against ".travel"

Although Internet governing body ICANN continues to ignore my request for independent review of the lack of transparency in its decision to approve a .travel top-level Internet domain name -- limited to and controlled by the travel "industry", to the exclusion and the detriment of travellers -- crucial documents released by ICANN on the eve of its current annual meeting in Vancouver, Canada, reveal that ICANN's Board of Directors overruled the recommendations of its own secretly-appointed "independent" evaluators that ".travel" should not be approved.

ICANN's secret evaluation team based its newly-revealed recommendation on the difference between the industry of "commercial providers of travel services" (the sponsors of the ".travel" proposal) and the broader travel community for whose benefit it was supposedly proposed, and the absence of any evidence that the travel industry would be capable of representing the interests of the "very diverse" range of non-commercial, individual, and other interests in travel.

These were exactly the arguments I have been making from the start against the capture of the Internet travel namespace by exclusively commercial interests, and the arguments I had made in my comments to ICANN on the most recent ".travel" proposal.

After receiving the evaluators' report, ICANN gave notice of the recommendation to the applicant (Tralliance Corp., a wholly-owned subsidiary of TheGlobe.com/Voiceglo.com, which is controlled by the same principal owners as Florida tour operator Certified Vacations ), and gave Tralliance (and perhaps others) an opportunity to submit additional (still secret) evidence and arguments. Critics of the ".travel" proposal were never told of the evaluators' recommendation, and had no chance to see, comment on, or rebut Tralliance's second (and perhaps additional) round(s) of submissions to ICANN. (See pages 22-23 of the evaluators' just-released status report for the ".travel" decision-making chronology.)

And ICANN's Board of Directors, after reviewing these still-secret documents in closed meetings and discussions from which I and all journalists and observers were excluded (despite my specific request to be allowed to observe, and despite ICANN's bylaws requiring "the maximum extent feasible" of transparency) overturned the evaluators' recommendations and approved the industry-only ".travel" proposal.

The evaluators' report and recommendations (which also revealed for the first time the identities of the members of the secret evaluation teams) were very quietly posted on an inside page of the ICANN Web site earlier this week, after the week-long ICANN annual meeting in Vancouver had begun.

There's no mention of the release of these documents on ICANN's press or announcements pages. I received no notice of their release, even though I've been seeking them for months, and even though they are among the documents the withholding of which is the basis of my pending request for independent review" of the (non)transparency of ICANN's decision-making process on ".travel". I learned of their posting only yesterday, when they were mentioned during a meeting of ICANN's GNSO.

I would have questioned ICANN spokespeople about these documents, but had no chance. ICANN did organize a press conference for its own CEO, Paul Twomey, as well as for Tralliance CEO Ron Andruff, at its Vancouver meeting on Thursday morning. But there was no public notice of the press conference on the ICANN Web site or at the meeting and conference venue. Selected reporters, not including yours truly, were told of it privately.

Even though by happenstance I was in the designated "press room" (which is completely devoid of any information for the press) for the ICANN meeting when the press conference began, and even though my exclusion from a similar press conference at one of ICANN's previous meetings in Argentina in April is another of the issues in my request for independent review, I wasn't told the press conference was happening. Only by further happenstance, while looking for another session, did I wander into the press conference just as Twomey was finishing his last answer, turning the microphone over to Andruff, and leaving the room. An ICANN staff member in the room claimed to have been monitoring the "press@icann.org" address to which I had sent several of my requests, but also claimed never to have heard of me or to have received any of my e-mail messages.

The evaluators' key recommendations on ".travel" are in the report of the "Sponsorship and Other Issues Team" which consisted of Liz Williams, Pierre Ouedraogo, and Daniel J. Weitzner, on pages 107-109 of Appendix D of the evaluation documents:

.TRAVEL

The ET [Evaluation Team] were not persuaded that .travel met sufficient of the selection criteria to warrant the application proceeding to the next stage of negotiations.

The ET thought that the string [.travel] chosen by the applicants was too broad to enable an adequate definition of a Sponsoring Organization or to identify needs that were not already met by the existing gTLD structure.

While the applicant does a very thorough job of defining a community, we did not believe that the community is consistent in breadth with the name string .travel. Rather, the community defined is limited to the commercial providers of travel services. Also, the ET believes that the needs of the very diverse travel community are well met by the existing gTLDs and that this proposal could be integrated as a second level domain name into, for example, .com, .biz or .info, quite easily....

[T]he scope of the chosen name string is not consistent with the community that is being defined....

C. Appropriateness of the Sponsoring Organization and the policy formulation environment

We do not believe that the application has defined a policy formulation requirement that is sufficient to justify a separate TLD. The applicant asserts that this sTLD would be the first and only means by which the entire global and regional travel industry and its organizations are able to directly participate in domain policy formation and implementation. While this statement is true, we have not seen any reason why the needs of the travel community require distinctive policy treatment. The main activities they cite -- authentication of bona fide travel organizations, searching in approved travel services directories and promotion of online travel-related services -- are all services that can be accomplished outside the DNS. Both general purpose and industry-specific search tools in existence today demonstrate this fact. We did seek clarification on this point but the response in the supplemental answers did not offer substantially new information than that which was in the application.

We are pleased to see that, as described by the applicant, the potential constituents of the Sponsoring Organization make up "nearly 100%" of the travel industries associations worldwide....

But, based on concerns about the breath of implication of the term "travel", we are concenred ed that even this broad commercial representation does not meet the policy formulation requirements of the far-reaching sTLD that is proposed. Hence, the delegation of the entire sTLD namespace ".travel" by ICANN to this Sponsor would not result in appropriately representative policy formulation. The application therefore does meet the selection criteria in that it fails to define a policy formulation and delegation environment suitably tailored to the proposed sTLD.

D. Level of support from the Community

The application and supporting material indicate broad support from the travel industry... However, we are concerned (as described in section 2A) that even this breadth of [industry] support is not sufficient to sustain the designation ".travel," which has both commercial and non-commercial aspects.

The application does not meet the selection criteria....

2. COMMUNITY VALUE

A. Addition of new value to the Internet name space

The application has not demonstrated in sufficient detail how a specific .travel sTLD adds value and diversity to the domain name space. The stated function of the TLD is to serve the global travel industry. However, the implication of the chosen namestring .travel extends well beyond commercial travel services. For example, in answer to supplemental questions posed by the ET, the applicant indicated that individuals with an interest in travel would be excluded from registration, as would providers of travel-related products. While there is reason to consider such potential registrants as outside the of the travel services industry, they certainly fall within the general notion of "travel".

Hence, though the addition of new travel services could add value to the Internet, the narrow definition of the sponsoring organization and the corresponding breadth of the namestring appears more likely to add confusion than value. All of the advantages listed in the application can be achieved in the existing gTLD structure.

Furthermore, the public comment forum is particularly ambivalent about support for .travel, most notably because of lack of public interest representation and the failure to articulate how .travel would differentiate itself from existing services and whether it is representative of that community. [emphasis added]

Recommendation:

In light of all these factors, we believe that .travel does not meet the Sponsorship and Other Issues selection criteria set forth in the RFP.

We recommend that the applicants consider narrower strings which would define more tightly the commun ity they wish to serve. Alternatively , they may wish to broaden the definition and representation of the proposed community. In the meantime, they may wish to work with existing gTLDs to integrate their service offerings.

Additional documents concerning most of the latest applications for new sponsored top-level domain names (sTLD's) were also posted, but little detail about ".travel" remained in the rest of the expurgated documents. The evaluators said another of my comments (see page 69 of Appendix D) concerning ICANN's financial liability for ".travel" decisions was "worth noting", but the entire section of the business and financial evaluation of ".travel" to which that analysis of comments was appended was redacted from the evaluation as released. So we don't know what conclusions the evaluators may have drawn from that comment, or what they may have recommended with respect to the shaky finances of Tralliance and its corporate parents or the conditions in contracts with ICANN to require openness and transparency in decision-making by sTLD sponsors.

Also this week ICANN published its General Counsel and corporate secretary John Jeffrey's e-mail to me of 12 May 2005 (published on my own Web site in May when I received it), in which he gave a preview of some of the arguments ICANN might make to an Independent Review Panel (IRP), but said nothing about whether, when, or how ICANN would actually refer my request to an IRP.

But ICANN didn't publish, or link to, my immediate response of 17 May 2005, in which I reiterated the basis for my request and pointed out that I couldn't "confirm" anything about ICANN policies and procedures for independent review (if it even has any) until I saw them, which I haven't. In that message, I requested a copy of those policies and procedures. I haven't received them, I'm still waiting for them, and that request remains unacknowledged and unanswered.

ICANN also hasn't posted any of Mr. Jeffrey's subsequent messages in response to my requests for the status of my independent review request, including his incredible claim 25 August 2005 that he had been "under the impression" that I had abandoned my requests, or his last message to me the next day, 26 August 2005, stating that that, "We will review alll of the materials submitted to date and get back to you."

So far as I know, Mr. Jeffrey et al. (I don't know to whom the "we" in his message refers, since I've received no notice of any ICANN meeting to consider my request) is still "reviewing" my request, almost 8 months after it was made, and I'm still waiting for him or any ICANN officer or body to "get back to" me, to take any action on my requests, or even to schedule a meeting to consider them -- if a meeting is even needed to perform what should be an almost purely clerical task for ICANN of referring the request to an IRP.

ICANN's Board of Directors meets tomorrow, and its public forum continues today. Chairman of the Board Vint Cerf promised during the first half of the public forum yesterday that all comments sent to vancouver@icann.org would be published on the ICANN Web site (as hasn't happened with comments to the similar e-mail addresses for previous meetings) and considered by the Board.

[Addendum, 3 December 2005: Commentary on my report and why process matters from Michael Froomkin at ICANN Watch; on my request for independent review and on the scene at the ICANN meeting in Vancouver from Karl Auerbach; and on my request for independent review and what it's like to try to report on an ICANN meeting from my fellow journalist on the ICANN beat, Kieren McCarthy of The Register .]

[Further addendum, 4 December 2005, 08:00 a.m.: I've still received no response from ICANN, much less any action on my request. But here from Kieren McCarthy is a preview of the ICANN Board of Directors meeting scheduled to begin in half an hour. Including, in the sprit of travel writing, his review of the toilets at the meeting venue. ("What the hell has this got to do with ICANN, you freak? Resisting the temptation to draw a parallel between toilets and our beloved Internet overseeing organisation, nothing at all.")]