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ICA to ICANN: The IRT Must Open Up Or Be Stripped of Official Status and Support

Philip S. Corwin

On April 21st the Internet Commerce Association submitted a formal request to Mr. Frank Fowlie, ICANN Ombudsman, requesting an immediate investigation of the non-compliance of the Implementation Recommendation Team (IRT) with applicable provisions of ICANN's Bylaws. The IRT was created by a March Resolution adopted by the ICANN Board during its Mexico City meeting, and was charged with proposing "solutions" to the concerns of trademark holders. Unfortunately, the IRT has chosen to operate in a non-transparent manner that unfairly excludes meaningful participation by professional domain name registrants who are most likely to be affected by its recommendations. Further, it is becoming clear that the IRT is in significant part an expedited, backdoor process for proposing and implementing major changes in second level dispute procedures that will undermine and displace the Uniform Domain-Name Dispute-Resolution (UDRP) and thereby substantially diminish the procedural and substantive rights it presently affords to good faith domain registrants. There is also a high likelihood that any such changes in dispute procedures implemented in the context of new gTLDs will quite probably migrate in short order to incumbent gTLDs, including .com.

The main points made in ICA's letter are:

  • The IRT is a "constituent body" of ICANN and its non-compliance with ICANN Bylaws falls within the jurisdiction of the Ombudsman.
  • Any consideration of second level disputes that results in alteration of the UDRP must take place within a stand-alone process that is fair, open and transparent, and separate from the development of final application rules for new gTLDs.
  • The IRT's non-compliance with Bylaws requirements for open and transparent proceedings that ensure fairness is documented in its own minutes.
  • The IRT's non-compliance creates substantial litigation risk for ICANN itself.
  • The IRT should be compelled to come into immediate compliance with all applicable ICANN Bylaws or, failing that, ICANN should withdraw all staff and financial support and regard any recommendations it may forward as lacking any official status.

The ICA's latter also states, "The IRT process is not, as required by the Bylaws, open and transparent, it does not ensure fairness, and it does not ensure that one of those entities that will be most affected by the policy development process — the domain investment and development community — can meaningfully assist in this policy development process."

The full text of the letter may be found at http://www.internetcommerce.org/node/179.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman. Views expressed in this article are solely his own. Visit Page
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They're wasting their time John Levine  –  Apr 22, 2009 1:04 PM PDT

Frank is an egregious apologist for ICANN's staff and board, which isn't surprising considering who pays his salary.  He's never issued a decision against them and never will.

Unfortunately, history has shown that the most effective way to get ICANN's attention is to sue them, then watch them cave.

I Believe That We Now Have ICANN's Attention... Philip S Corwin  –  Apr 22, 2009 8:42 PM PDT

...and have gained it without resort to litigation.

Our modest request is that they simply enforce their own Bylaws.

Mr. Fowlie now has an excellent opportunity to refute your low opinion of him. We hope that he rises to the occasion, and will certainly share his response with the interested community. As we believe the issues are rather clear cut, we would expect to receive it shortly.

The vicious circle of abuse Kieren McCarthy  –  Apr 29, 2009 8:48 AM PDT

Frank Fowlie as ICANN Ombudsman acts independently of the organization - something that I have personally witnessed on a number of occasions. I'm afraid the comment above shows significant ignorance of the Ombudsman role.

It may be worth pointing out that there are many more, and more effective ways of being heard and listened to than shouting abuse from the sidelines - Philip Corwin's letter is one example of more constructive interaction.

The irony is that throwing around inaccurate and pointless abuse is a self-fulfilling circle - no one will listen to someone who is both unreasonable and wrong, causing the individual(s) to become more unreasonable and, usually, more wrong.

Try a little research, moderation and respect; you'll be amazed how far it goes.

Kieren McCarthy
General manager of public participation, ICANN

Frank Fowlie as ICANN Ombudsman acts independently John Levine  –  Apr 29, 2009 9:59 AM PDT

Frank Fowlie as ICANN Ombudsman acts independently of the organization

I realize that's the theory.  Unfortunately, I can report from direct experience that the reality is very different.

We Shall See Philip S Corwin  –  Apr 29, 2009 3:36 PM PDT

Thanks for your characterization of the ICA's letter to Mr. Fowlie as "constructive interaction". It is our practice to always try to be constructive and to back our positions with research and reasoning, while standing up for our members' legitimate interests and rights.

Now we shall see whether we get a constructive response, and that should be adjudged on both substance and timing. A response from Mr. Fowlie, regardless of its substance, that occurs after the IRT has issued its final report and disbanded will not likely be judged satisfactory by us or the broader community.

Still wasting their time John Levine  –  Apr 23, 2009 4:53 AM PDT

I also hope he surprises us all and rises to the occasion, but particularly in view of his shameful treatment of Ed Hasbrouck who also asked him to make ICANN follow their own rules, don't hold your breath.

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