The Centre for Internet and Society
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DIDP Request #8: ICANN Organogram
https://cis-india.org/internet-governance/blog/didp-request-8-organogram
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking details of its oragnisational structure and headcount of all staff. CIS' request and ICANN's response are detailed below. </b>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">CIS Request</h2>
<p style="text-align: justify; "><span>13 January 2015</span></p>
<p style="text-align: justify; "><span>To:</span></p>
<p style="text-align: justify; ">Mr. Steve Crocker, Chairman of the Board</p>
<p style="text-align: justify; ">Mr. Fadi Chehade, President and CEO</p>
<p style="text-align: justify; ">Mr. Samiran Gupta, ICANN India</p>
<p style="text-align: center; "><strong>Sub: ICANN organogram</strong></p>
<p style="text-align: justify; "><strong> </strong><span>In order to understand ICANN’s organizational structure, decision-making and day-to-day functioning, may we request an organogram of ICANN. We request that the organogram include ICANN’s reporting hierarchy, mentioning positions held in all departments. Wherever possible (such as middle and senior management), we request names of the ICANN staff holding the positions as well. Along with this, could you also provide a count per department of the number of ICANN staff employed in all departments as of this date?</span><span> </span></p>
<p style="text-align: justify; ">We await your favorable response and the requested information within the prescribed time limit. Please do not hesitate to contact us should you require any clarifications.</p>
<p style="text-align: justify; ">Thank you very much.</p>
<p style="text-align: justify; ">Warm regards,</p>
<p style="text-align: justify; ">Geetha Hariharan</p>
<p style="text-align: justify; ">Centre for Internet & Society</p>
<p style="text-align: justify; ">W: <a href="http://cis-india.org">http://cis-india.org</a></p>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">ICANN Response</h2>
<p style="text-align: justify; ">ICANN does not provide all the information we requested, but it responded with the following:</p>
<p style="text-align: justify; ">First, ICANN has responded that its current staff headcount is approx. 310. ICANN states that it already makes publicly available an <a href="https://www.icann.org/en/system/files/files/management-org-01feb15-en.pdf">organisational chart</a>. This is immensely useful, for it sets out the reporting hierarchies at senior and mid-managerial levels. However, it doesn't tell us the organisational structure categorised by all departments and staff in the said departments. The webpages of some of ICANN's departments list out some of its staff; for instance, <a class="external-link" href="https://www.icann.org/resources/pages/about-2014-10-10-en">Contractual Compliance</a>, <a class="external-link" href="https://www.icann.org/resources/pages/gse-2012-02-25-en">Global Stakeholder Engagement</a> and <a class="external-link" href="https://www.icann.org/policy">Policy Development</a> (scroll down).</p>
<p style="text-align: justify; ">What you will notice is that ICANN provides us a list of staff, but we cannot be sure whether the team includes more persons than those mentioned. Second, a quick glance at the Policy Development staff makes clear that ICANN selects from outside this pool to coordinate the policy development. For instance, the IANA Stewardship Transition (the CWG-IANA) is supported by <a class="external-link" href="https://www.icann.org/profiles/grace-abuhamad">Ms. Grace Abuhamad</a>, who is not a member of the <a class="external-link" href="https://www.icann.org/policy">policy support staff</a>, but coordinates the IANA mailing list and F2F meetings anyway. What this means is that we're no longer certain who within ICANN is involved in policy development and support, whom they report to, and where the Chinese walls lie. This is why an organogram is necessary: the policy-making and implementation functions in ICANN may be closely linked because of staff interaction, and effective Chinese walls would benefit from public scrutiny.</p>
<p style="text-align: justify; ">Now, ICANN says that one may explore staff profiles on the <a class="external-link" href="https://www.icann.org/community/explore?profile_search%5Bbadge_filters%5D%5B%5D=staff_badge&profile_search%5Bbadge_filters%5D%5B%5D=&profile_search%5Bcountry_filters%5D%5B%5D=&profile_search%5Bicann_experience_filter%5D=&profile_search%5Big_experience_filter%5D=&profile_search%5Binterest_filters%5D%5B%5D=&profile_search%5Blanguage_filters%5D%5B%5D=&profile_search%5Bmembership_filters%5D%5B%5D=&profile_search%5Bprofile_filter%5D=&profile_search%5Bsearch_text%5D=&utf8=%E2%9C%93">Staff page</a>. While short biographies/profiles are available for most staff on the Staff page, it's unclear what departments they work in, how many staff members work each in department, whom they report to, and what the broad range of their responsibilities include.</p>
<p style="text-align: justify; ">Privacy concerns do not preclude the disclosure of such information for two reasons. First, staff profiles imply a consent to making staff information public (at least their place in the organisational structure, if not their salaries, addresses, phone extension numbers, etc.). Second, such information is necessary and helpful to scrutinise the effectiveness of ICANN's functioning. Like the example of the policy-making process mentioned above, greater transparency in internal functioning will itself serve as a check against hazards like partisanism, public comment aggregation, drafting of charters for policy-making and determining scope, etc. While the functioning itself may or need not change, scrutiny can ensure responsibility from ICANN and its staff.</p>
<p style="text-align: justify; "><span style="text-align: justify; ">ICANN's response to our DIDP request may be </span><a class="external-link" href="https://www.icann.org/en/system/files/files/cis-organogram-response-11feb15-en.pdf" style="text-align: justify; "><strong>found here</strong></a><span style="text-align: justify; ">. A short summary of our request and ICANN's response may be found </span><a href="http://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file" style="text-align: justify; "><strong>in this table (Request S. no. 8)</strong></a><span style="text-align: justify; ">.</span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-8-organogram'>https://cis-india.org/internet-governance/blog/didp-request-8-organogram</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-17T11:39:16ZBlog EntryTowards Algorithmic Transparency
https://cis-india.org/internet-governance/blog/towards-algorithmic-transparency
<b>This policy brief examines the issue of transparency as a key ethical component in the development, deployment, and use of Artificial Intelligence.</b>
<p> </p>
<p>This brief proposes a framework that seeks to overcome the challenges in preserving transparency when dealing with machine learning algorithms, and suggests solutions such as the incorporation of audits, and ex ante approaches to building interpretable models right from the design stage. Read the full report <a href="https://cis-india.org/internet-governance/algorithmic-transparency-pdf" class="internal-link" title="Algorithmic Transparency PDF">here</a>.</p>
<p> </p>
<p> </p>
<p>The Regulatory Practices Lab at CIS aims to produce regulatory policy
suggestions focused on India, but with global application, in an agile
and targeted manner and to promote transparency around practices
affecting digital rights. <br />The Regulatory Practices Lab is supported by Google and Facebook.<br /><br /></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/towards-algorithmic-transparency'>https://cis-india.org/internet-governance/blog/towards-algorithmic-transparency</a>
</p>
No publisherRadhika Radhakrishnan, and Amber SinhaRegulatory Practices LabInternet GovernanceFeaturedAlgorithmsinternet governanceTransparencyArtificial Intelligence2020-07-15T13:16:44ZBlog EntryICANN’s Problems with Accountability and the .WEB Controversy
https://cis-india.org/internet-governance/blog/icann2019s-problems-with-accountability-and-the-web-controversy
<b>The Post-Transition IANA promised enhanced transparency and accountability to the global multistakeholder community. The series of events surrounding the .WEB auction earlier this year has stirred up issues relating to the lack of transparency and accountability of ICANN. This post examines the .WEB auction as a case study to better understand exact gaps in accountability.</b>
<h2>Chronological Background of the .WEB Auction</h2>
<p style="text-align: justify; "><span>In June 2012, ICANN launched a new phase for the creation and operation of Generic Top-Level Domains (gTLDs). After confirming the eligibility of seven applicants for the rights of the .WEB domain name, ICANN placed them in a string contention set (a group of applications with similar or identical applied for gTLDs).<a href="#_ftn1" name="_ftnref1"><sup><span>[1]</span></sup></a></span></p>
<p style="text-align: justify; "><span>[<i>Quick Note</i>: ICANN procedure encourages the resolving of this contention set by voluntary settlement amongst the contending applicants (also referred to as a private auction), wherein individual participation fees of US $185,000 go to ICANN and the auction proceeds are distributed among the bidders. If a private auction fails, the provision for a last resort auction conducted by ICANN is invoked - here the total auction proceeds go to ICANN along with the participation fees.<a href="#_ftn2" name="_ftnref2"><sup><span>[2]</span></sup></a>]</span></p>
<p style="text-align: justify; "><span>In June 2016, NuDotCo LLC, a bidder that had previously participated in nine private auctions without any objection, withdrew its consent to the voluntary settlement. Ruby Glen LLC, another bidder, contacted NDC to ask if it would reconsider its withdrawal, and was made aware of changes in NDC’s Board membership, financial position, management and a potential change in ownership, by NDC’s Chief Financial Officer.<a href="#_ftn3" name="_ftnref3"><sup><span>[3]</span></sup></a> Concerned about the transparency of the auction process, Ruby Glen requested ICANN to postpone the auction on June 22, in order to investigate the discrepancies between NDC’s official application and its representation to Ruby Glen.<a href="#_ftn4" name="_ftnref4"><sup><span>[4]</span></sup></a> The Vice President of ICANN’s gTLD Operations and the independent ICANN Ombudsman led separate investigations, both of which were limited to few e-mails seeking NDC’s confirmation of status quo. On the basis of NDC’s denial of any material changes, ICANN announced that the auction would proceed as planned, as no grounds had been found for its postponement.<a href="#_ftn5" name="_ftnref5"><sup><span>[5]</span></sup></a></span></p>
<p style="text-align: justify; "><span>On July 27, NDC’s winning bid – USD 135 million – beat the previous record by $90 million, <i>doubling ICANN’s total net proceeds</i> from the past fifteen auctions it had conducted.<a href="#_ftn6" name="_ftnref6"><sup><span>[6]</span></sup></a> Soon after NDC’s win, Verisign, Inc., the market giant that owns the .com and .net domain names, issued a public statement that it had used NDC as a front for the auction, and that it had been involved in its funding from the very beginning. Verisign agreed to transfer USD 130 million to NDC, allowing the latter to retain a $5 million stake in .WEB.<a href="#_ftn7" name="_ftnref7"><sup><span>[7]</span></sup></a></span></p>
<p style="text-align: justify; "><span>Ruby Glen LLC filed for an injunction against the transfer of .WEB rights to NDC, and sought expedited discovery<a href="#_ftn8" name="_ftnref8"><sup><span>[8]</span></sup></a> against ICANN and NDC in order to gather evidentiary support for the temporary restraining order.<a href="#_ftn9" name="_ftnref9"><sup><span>[9]</span></sup></a> Donuts Inc., the parent company of Ruby Glen, simultaneously filed for recovery of economic loss due to negligence, fraud and breach of bylaws among other grounds, and Affilias, the second highest bidder, demanded that the .WEB rights be handed over by ICANN.<a href="#_ftn10" name="_ftnref10"><sup><span>[10]</span></sup></a> Furthermore, at ICANN57, Affilias publicly brought up the issue in front of ICANN’s Board, and Verisign followed with a rebuttal. However, ICANN’s Board refused to comment on the issue at that point as the matter was still engaged in ongoing litigation.<a href="#_ftn11" name="_ftnref11"><sup><span>[11]</span></sup></a></span></p>
<h2>Issues Regarding ICANN’s Assurance of Accountability</h2>
<p style="text-align: justify; "><span>The Post-Transition IANA promised enhanced transparency and accountability to the global multistakeholder community. The series of events surrounding the .WEB auction has stirred up issues relating to the lack of transparency and accountability of ICANN. ICANN’s arbitrary enforcement of policies that should have been mandatory, with regard to internal accountability mechanisms, fiduciary responsibilities and the promotion of competition, has violated Bylaws that obligate it to operate ‘consistently, neutrally, objectively, and fairly, without singling out any particular party for discriminatory treatment’.<a href="#_ftn12" name="_ftnref12"><sup><span>[12]</span></sup></a> </span></p>
<p style="text-align: justify; "><span>Though the US court ruled in favour of ICANN, the discrepancies that were made visible with regard to ICANN’s differing emphasis on procedural and substantive compliance with its rules and regulations, have forced the community to acknowledge that corporate strategies, latent interests and financial advantages undermine ICANN’s commitment to accountability. The approval of NDC’s ridiculously high bid with minimal investigation or hesitation, even after Verisign’s takeover, signifies pressing concerns that stand in the way of a convincing commitment to accountability, such as:</span></p>
<ol style="text-align: justify; ">
<li style="text-align: justify; "><span>The Lack of Substantive Fairness and Accountability at ICANN (A Superficial Investigation)</span></li>
<li style="text-align: justify; "><span>ICANN’s Sketchy Tryst with Legal Conformity</span></li>
<li style="text-align: justify; "><span>The Financial Accountability of ICANN’s Auction Proceeds</span></li>
</ol> <ol style="text-align: justify; ">
<li style="text-align: justify; "><span><span>The Lack of Substantive Fairness and Accountability in its Screening Processes: </span></span></li>
</ol>
<p style="text-align: justify; "><span>Ruby Glen’s claim that ICANN conducted a cursory investigation of NDC’s misleading and unethical behaviour brought to light the ease and arbitrariness with which applications are deemed valid and eligible. </span></p>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Disclosure of Significant Details Unique to Applicant Profiles:</span></span></i> <span>In the initial stage, applications for the gTLD auctions require disclosure of background information such as proof of legal establishment, financial statements, primary and secondary contacts to represent the company, officers, directors, partners, major shareholders, etc. At this stage, TAS User Registration IDs, which require VAT/tax/business IDs, principal business address, phone, fax, etc. of the applicants, are created to build unique profiles for different parties in an auction.<a href="#_ftn13" name="_ftnref13"><sup><span>[13]</span></sup></a> Any important change in an applicant’s details would thus significantly alter the unique profile, leading to uncertainty regarding the parties involved and the validity of transactions undertaken. NDC’s application clearly didn’t meet the requirements here, as its financial statements, secondary contact, board members and ownership all changed at some point before the auction took place (either prior to or post submission of the application).<a href="#_ftn14" name="_ftnref14"><sup><span>[14]</span></sup></a></span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Mandatory Declaration of Third Party Funding:</span></span></i><span> Applications presupposing a future joint venture or any organisational unpredictability are not deemed eligible by ICANN, and if any third party is involved in the funding of the applicant, the latter is to provide evidence of such commitment to funding at the time of submission of its financial documents.<a href="#_ftn15" name="_ftnref15"><sup><span>[15]</span></sup></a> Verisign’s public announcement that it was involved in NDC’s funding from the very beginning (well before the auction) and its management later, proves that NDC’s failure to notify ICANN made its application ineligible, or irregular at the very least.<a href="#_ftn16" name="_ftnref16"><sup><span>[16]</span></sup></a></span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Vague Consequences of Failure to Notify ICANN of Changes:</span></span></i><span> If in any situation, certain material changes occur in the composition of the management, ownership or financial position of the applicant, ICANN is liable to be notified of the changes by the submission of updated documents. Here, however, the applicant may be subjected to re-evaluation if a <i>material change</i> is concerned, <i>at ICANN’s will</i> (there is no mention of what a material change might be). In the event of failure to notify ICANN of changes that would lead the previous information submitted to be false or misleading, ICANN <i>may</i> reject or deny the application concerned.<a href="#_ftn17" name="_ftnref17"><sup><span>[17]</span></sup></a> NDC’s absolute and repeated denial of any changes, during the extremely brief e-mail ‘investigation’ conducted by ICANN and the Ombudsman, show that at no point was NDC planning on revealing its intimacy with Verisign. No extended evaluation was conducted by ICANN at any point.<a href="#_ftn18" name="_ftnref18"><sup><span>[18]</span></sup></a> Note: The arbitrary power allowed here and the vague use of the term ‘material’ obstruct any real accountability on ICANN’s part to ensure that checks are carried out to discourage dishonest behaviour, at all stages.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Arbitrary Enforcement of Background Checks:</span></span></i><span> In order to confirm the eligibility of all applicants, ICANN conducts background screening during its initial evaluation process to verify the information disclosed, at the individual and entity levels.<a href="#_ftn19" name="_ftnref19"><sup><span>[19]</span></sup></a> The applicants may be asked to produce any and all documents/evidence to help ICANN complete this successfully, and any relevant information received from ‘any source’ may be taken into account here. However, this screening is conducted only with regard to two criteria: general business diligence and criminal history, and any record of cybersquatting behaviour.<a href="#_ftn20" name="_ftnref20"><sup><span>[20]</span></sup></a> In this case, ICANN’s background screening was clearly not thorough, in light of Verisign’s confirmed involvement since the beginning, and at no point was NDC asked to submit any extra documents (apart from the exchange of e-mails between NDC and ICANN and its Ombudsman) to enable ICANN’s inquiry into its business diligence.<a href="#_ftn21" name="_ftnref21"><sup><span>[21]</span></sup></a> Further, ICANN also said that it was not <i>required</i> to conduct background checks or a screening process, as the provisions only mention that ICANN is <i>allowed</i> to do so, when it feels the need.<a href="#_ftn22" name="_ftnref22"><sup><span>[22]</span></sup></a> This ludicrous loophole hinders transparency efforts by giving ICANN the authority to ignore any questionable details in applications it desires to deem eligible, based on its own strategic leanings, advantageous circumstances or any other beneficial interests.</span></li>
</ul>
<p style="text-align: justify; "><span>ICANN’s deliberate avoidance of discussing or investigating the ‘allegations’ against NDC (that were eventually proved true), as well as a visible compromise in fairness and equity of the application process point to the conclusion it desired. </span></p>
<h3><span><span>ICANN’s Sketchy Tryst with Legal Conformity:</span></span></h3>
<p style="text-align: justify; "><span>ICANN’s lack of <i>substantive compliance</i>, with California’s laws and its own rules and regulations, leave us with the realisation that efforts towards transparency, enforcement and compliance (even with emphasis on the IANA Stewardship and Accountability Process) barely meet the procedural minimum. </span></p>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Rejection of Request for Postponement of Auction:</span></span></i><span> ICANN’s intent to ‘initiate the Auction process once the composition of the set is stabilised’ implies that there must be no pending accountability mechanisms with regard to any applicant.<a href="#_ftn23" name="_ftnref23"><sup><span>[23]</span></sup></a> When ICANN itself determines the opening and closing of investigations or reviews concerning applicants, arbitrariness on ICANN’s part in deciding <i>on which date</i> the mechanisms are to be deemed as <i>pending</i>, may affect an applicant’s claim about procedural irregularity. In this case, ICANN had already scheduled the auction for July 27, 2016, before Ruby Glen sent in a request for postponement of the auction and inquiry into NDC’s eligibility on June 22, 2016.<a href="#_ftn24" name="_ftnref24"><sup><span>[24]</span></sup></a> Even though the ongoing accountability mechanisms had begun after initiation of the auction process, ICANN confirmed the continuance of the process without assurance about the stability of the contention set as required by procedure. Ruby Glen’s claim about this violation in auction rules was dismissed by ICANN on the basis that there must be no pending accountability mechanisms at the <i>time of scheduling</i> of the auction.<a href="#_ftn25" name="_ftnref25"><sup><span>[25]</span></sup></a> This means that if any objection is raised or any dispute resolution or accountability mechanism is initiated with regard to an applicant, at any point after fixing the date of the auction, the auction process continues even though the contention set may not be stabilised. This line of defence made by ICANN is not in conformity with the purpose behind the wording of its auction procedure as discussed above.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Lack of Adequate Participation in the Discovery Planning Process:</span></span></i><span> In order to gather evidentiary support and start the discovery process for the passing of the injunction, ICANN was required to engage with Ruby Glen in a conference, under Federal law. However, due to a disagreement as to the <i>extent</i> of participation required from both parties involved in the process, ICANN recorded only a single appearance at court, after which it refused to engage with Ruby Glen.<a href="#_ftn26" name="_ftnref26"><sup><span>[26]</span></sup></a> ICANN should have conducted a thorough investigation, based on both NDC’s and Verisign’s public statements, and engaged more cooperatively in the conference, to comply substantively with its internal procedure as well jurisdictional obligations. Under ICANN’s Bylaws, it is to ensure that an applicant <i>does not assign</i> its rights or obligations in connection with the application to another party, as NDC did, in order to promote a competitive market and ensure certainty in transactions.<a href="#_ftn27" name="_ftnref27"><sup><span>[27]</span></sup></a> However, due to its lack of substantive compliance with due procedure, such bylaws have been rendered weak.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Demand to Dismiss Ruby Glen’s Complaint:</span></span></i><span> ICANN demanded the dismissal of Ruby Glen’s complaint on the basis that the complaint was vague and unsubstantiated.<a href="#_ftn28" name="_ftnref28"><sup><span>[28]</span></sup></a> After the auction, Ruby Glen’s allegations and suspicions about NDC’s dishonest behaviour were confirmed publicly by Verisign, making the above demand for dismissal of the complaint ridiculous.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Inapplicability of ICANN’s Bylaws to its Contractual Relationships:</span></span></i><span> ICANN maintained that its bylaws are not part of application documents or contracts with applicants (as it is a not-for-profit public benefit corporation), and that ICANN’s liability, with respect to a breach of ICANN’s foundational documents, extends only to officers, directors, members, etc.<a href="#_ftn29" name="_ftnref29"><sup><span>[29]</span></sup></a> In addition, it said that Ruby Glen had not included any facts that suggested a duty of care arose from the contractual relationship with Ruby Glen and Donuts Inc.<a href="#_ftn30" name="_ftnref30"><sup><span>[30]</span></sup></a> Its dismissal of and considerable disregard for fiduciary obligations like duty of care and duty of inquiry in contractual relationships, prove the contravention of promised commitments and core values (integral to its entire accountability process), which are to ‘apply in the broadest possible range of circumstances’.<a href="#_ftn31" name="_ftnref31"><sup><span>[31]</span></sup></a></span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>ICANN’s Legal Waiver and Public Policy:</span></span></i><span> Ruby Glen had submitted that, under the California Civil Code 1668, a covenant not to sue was against policy, and that the legal waiver all applicants were made to sign in the application was unenforceable.<a href="#_ftn32" name="_ftnref32"><sup><span>[32]</span></sup></a> This waiver releases ICANN from ‘any claims arising out of, or related to, any action or failure to act’, and the complaint claimed that such an agreement ‘not to challenge ICANN in court, irrevocably waiving the right to sue on basis of any legal claim’ was unconscionable.<a href="#_ftn33" name="_ftnref33"><sup><span>[33]</span></sup></a> However, ICANN defended the enforceability of the legal waiver, saying that only a covenant not to sue that is <i>specifically designed</i> to avoid responsibility for own fraud or willful injury is invalidated under the provisions of the California Civil Code.<a href="#_ftn34" name="_ftnref34"><sup><span>[34]</span></sup></a> A waiver, incorporating the availability of accountability mechanisms ‘<i>within ICANN’s bylaws</i> to challenge any final decision of ICANN’s with respect to an application’, was argued as completely valid under California’s laws. It must be kept in mind that challenges to ICANN’s final decisions can make headway <i>only</i> through its own accountability mechanisms (including the Reconsideration Requests Process, the Independent Review Panel and the Ombudsman), which are mostly conducted by, accountable to and applicable at the discretion of the Board.<a href="#_ftn35" name="_ftnref35"><sup><span>[35]</span></sup></a> This means that the only recourse for dissatisfied applicants is through processes managed by ICANN, leaving no scope for independence and impartiality in the review or inquiry concerned, as the .WEB case has shown.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Note</span></span></i><span>: ICANN has also previously argued that its waivers are not restricted by S. 1668 because the parties involved are sophisticated - without an element of oppression, and that these transactions don’t involve public interest as ICANN doesn’t provide necessary services such as health, transportation, etc.<a href="#_ftn36" name="_ftnref36"><sup><span>[36]</span></sup></a> Such line of argument shows its continuous refusal to acknowledge responsibility for ensuring access to an essential good, in a diverse community, justifying concerns about ICANN’s commitment to accessibility and human rights.</span></li>
</ul>
<p style="text-align: justify; "><span>Required to remain accountable to the stakeholders of the community through <i>mechanisms listed in its Bylaws</i>, ICANN’s repeated difficulty in ensuring these mechanisms adhere to the purpose behind jurisdictional regulations confirm hindrances to impartiality, independence and effectiveness.</span></p>
<h3><span><span>The Financial Accountability of ICANN’s Auction Proceeds:</span></span></h3>
<p style="text-align: justify; "><span>The use and distribution of significant auction proceeds accruing to ICANN have been identified by the internet community as issues central to financial transparency, especially in a future of increasing instances of contention sets. </span></p>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Private Inurement Prohibition and Legal Requirements of Tax-Exempted Organisations:</span></span></i> <span>Subject to California’s state laws as well as federal laws, tax exemptions and tax-deductible charitable donations (available to not-for-profit public benefit corporations) are dependent on the fulfillment of jurisdictional obligations by ICANN, including avoiding contracts that may result in excessive economic benefit to a party involved, or lead to any deviation from purely charitable and scientific purposes.<a href="#_ftn37" name="_ftnref37"><sup><span>[37]</span></sup></a> ICANN’s Articles require that it ‘<i>shall</i> pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet’.<a href="#_ftn38" name="_ftnref38"><sup><span>[38]</span></sup></a> Due to this, ICANN’s accumulation of around USD 60 million (the total net proceeds from over 14 contention sets) since 2014 has been treated with unease, making it impossible to ignore the exponential increase in the same after the .WEB controversy.<a href="#_ftn39" name="_ftnref39"><sup><span>[39]</span></sup></a> With its dedication to a bottom-up, multi-stakeholder policy development process, the use of a single and ambiguous footnote, in ICANN’s Guidebook, to tackle the complications involving significant funds that accrue from last resort auctions (without even mentioning the arbiters of their ‘appropriate’ use) is grossly insufficient.<a href="#_ftn40" name="_ftnref40"><sup><span>[40]</span></sup></a> </span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Need for Careful and Inclusive Deliberation Over the Use of Auction Proceeds:</span></span></i><span> At the end of the fiscal year 2016, ICANN’s balance sheet showed a total of USD 399.6 million. However, the .WEB sale amount was not included in this figure, as the auction happened after the last date (June 30, 2016).<a href="#_ftn41" name="_ftnref41"><sup><span>[41]</span></sup></a> Around seven times the average winning bid, a USD 135 million hike in ICANN’s accounts shows the need for greater scrutiny on ICANN’s process of allocation and distribution of these auction proceeds.<a href="#_ftn42" name="_ftnref42"><sup><span>[42]</span></sup></a> While finding an ‘appropriate purpose’ for these funds, it is important that ICANN’s legal nature under US jurisdiction as well as its vision, mission and commitments be adhered to, in order to help increase public confidence and financial transparency.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>The CCWG Charter on New gTLD Auction Proceeds:</span></span></i><span> ICANN has always maintained that it recognised the concern of ‘significant funds accruing as a result of several auctions’ at the outset.<a href="#_ftn43" name="_ftnref43"><sup><span>[43]</span></sup></a> In March 2015, the GNSO brought up issues relating to the distribution of auction proceeds at ICANN52, to address growing concerns of the community.<a href="#_ftn44" name="_ftnref44"><sup><span>[44]</span></sup></a> A Charter was then drafted, proposing the formation of a Cross-Community Working Group on New gTLD Auction Proceeds, to help ICANN’s Board in allocating these funds.<a href="#_ftn45" name="_ftnref45"><sup><span>[45]</span></sup></a> After being discussed in detail at ICANN56, the draft charter was forwarded to the various supporting organisations for comments.<a href="#_ftn46" name="_ftnref46"><sup><span>[46]</span></sup></a> The Charter received no objections from 2 organisations and was adopted by the ALAC, ASO, ccNSO and GNSO, following which members and co-chairs were identified from the organisations to constitute the CCWG.<a href="#_ftn47" name="_ftnref47"><sup><span>[47]</span></sup></a> It was decided that while ICANN’s Board will have final responsibility in disbursement of the proceeds, the CCWG will be responsible for the submission of proposals regarding the mechanism for the allocation of funds, keeping ICANN’s fiduciary and legal obligations in mind.<a href="#_ftn48" name="_ftnref48"><sup><span>[48]</span></sup></a> While creating proposals, the CCWG must recommend how to avoid possible conflicts of interest, maintain ICANN’s tax-exempt status, and ensure diversity and inclusivity in the entire process.<a href="#_ftn49" name="_ftnref49"><sup><span>[49]</span></sup></a> It is important to note that the CCWG cannot make recommendations ‘regarding which organisations are to be funded or not’, but is to merely submit a <i>proposal</i> for the <i>process</i> by which allocation is undertaken.<a href="#_ftn50" name="_ftnref50"><sup><span>[50]</span></sup></a> ICANN’s Guidebook mentions possible uses for proceeds, such as ‘<i><span>grants to support new gTLD applications or registry operators from communities’</span></i><span>, the creation of a fund for ‘<i>specific projects for the benefit of the Internet community’, </i>the ‘<i>establishment of a security fund to expand use of secure protocols’</i>, among others, to be decided by the Board.<a href="#_ftn51" name="_ftnref51"><sup><span>[51]</span></sup></a></span></span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>A Slow Process and the Need for More Official Updates:</span></span></i><span> The lack of sufficient communication/updates about any allocation or the process behind such, in light of ICANN’s current total net auction proceeds of USD 233,455,563, speaks of an urgent need for a decision by the Board (based on a recommendation by CCWG), regarding a <i>timeframe</i> for the allocation of such proceeds.<a href="#_ftn52" name="_ftnref52"><sup><span>[52]</span></sup></a> However, the entire process has been very slow, with the <i>first</i> CCWG meeting on auction proceeds scheduled for 26 January 2016, and the lists of members and observers being made public only recently.<a href="#_ftn53" name="_ftnref53"><sup><span>[53]</span></sup></a> Here, even parties interested in applying for the same funds at a later stage are allowed to participate in meetings, as long as they include such information in a Statement of Interest and Declaration of Intention, to satisfy CCWG’s efforts towards transparency and accountability.<a href="#_ftn54" name="_ftnref54"><sup><span>[54]</span></sup></a> </span></li>
</ul>
<p style="text-align: justify; "><span>The worrying consequences of ICANN’s lack of financial as well as legal accountability (especially in light of its controversies), reminds us of the need for constant reassessment of its commitment to substantive transparency, enforcement and compliance with its rules and regulations. Its current obsessive courtship with only <i>procedural</i> regularity must not be mistaken for a greater commitment to accountability, as assured by the post-transition IANA.</span></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1"><sup><span>[1]</span></sup></a> <span>DECLARATION OF CHRISTINE WILLETT IN SUPPORT OF ICANN’S OPPOSITION TO PLAINTIFF’S <i>EX PARTE </i>APPLICATION FOR TEMPORARY RESTRAINING ORDER, 2. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.p</span></a><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf"><span>df</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref2" name="_ftn2"><sup><span>[2]</span></sup></a> <span>4.3, gTLD Applicant Guidebook ICANN, 4-19. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref3" name="_ftn3"><sup><span>[3]</span></sup></a> <span>NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 15. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref4" name="_ftn4"><sup><span>[4]</span></sup></a> <span>NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 15. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref5" name="_ftn5"><sup><span>[5]</span></sup></a> <span>DECLARATION OF CHRISTINE WILLETT IN SUPPORT OF ICANN’S OPPOSITION TO PLAINTIFF’S <i>EX PARTE </i>APPLICATION FOR TEMPORARY RESTRAINING ORDER, 4-7. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref6" name="_ftn6"><sup><span>[6]</span></sup></a><span> PLAINTIFF RUBY GLEN, LLC’S NOTICE OF MOTION AND MOTION FOR LEAVE TO TAKE THIRD PARTY DISCOVERY OR, IN THE ALTERNATIVE, MOTION FOR THE COURT TO ISSUE A SCHEDULING ORDER, 3.</span></p>
<p style="text-align: justify; "><span>(</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-motion-court-issue-scheduling-order-26oct16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-motion-court-issue-scheduling-order-26oct16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref7" name="_ftn7"><sup><span>[7]</span></sup></a><span>(</span><a href="https://www.verisign.com/en_US/internet-technology-news/verisign-press-releases/articles/index.xhtml?artLink=aHR0cDovL3ZlcmlzaWduLm5ld3NocS5idXNpbmVzc3dpcmUuY29tL3ByZXNzLXJlbGVhc2UvdmVyaXNpZ24tc3RhdGVtZW50LXJlZ2FyZGluZy13ZWItYXVjdGlvbi1yZXN1bHRz"><span>https://www.verisign.com/en_US/internet-technology-news/verisign-press-releases/articles/index.xhtml?artLink=aHR0cDovL3ZlcmlzaWduLm5ld3NocS5idXNpbmVzc3dpcmUuY29tL3ByZXNzLXJlbGVhc2UvdmVyaXNpZ24tc3RhdGVtZW50LXJlZ2FyZGluZy13ZWItYXVjdGlvbi1yZXN1bHRz</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref8" name="_ftn8"><sup><span>[8]</span></sup></a> <span>An expedited discovery request can provide the required evidentiary support needed to meet the Plaintiff’s burden to obtain a preliminary injunction or temporary restraining order. (</span><a href="http://apps.americanbar.org/litigation/committees/businesstorts/articles/winter2014-0227-using-expedited-discovery-with-preliminary-injunction-motions.html"><span>http://apps.americanbar.org/litigation/committees/businesstorts/articles/winter2014-0227-using-expedited-discovery-with-preliminary-injunction-motions.html</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref9" name="_ftn9"><sup><span>[9]</span></sup></a> <span>NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 2. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref10" name="_ftn10"><sup><span>[10]</span></sup></a> <span>(</span><a href="http://domainincite.com/20789-donuts-files-10-million-lawsuit-to-stop-web-auction"><span>http://domainincite.com/20789-donuts-files-10-million-lawsuit-to-stop-web-auction</span></a><span>); (</span><a href="https://www.thedomains.com/2016/08/15/afilias-asks-icann-to-disqualify-nu-dot-cos-135-million-winning-bid-for-web/"><span>https://www.thedomains.com/2016/08/15/afilias-asks-icann-to-disqualify-nu-dot-cos-135-million-winning-bid-for-web/</span></a><span>)</span></p>
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; "><a href="#_ftnref11" name="_ftn11"><sup><span>[11]</span></sup></a><span> (</span><a href="http://www.domainmondo.com/2016/11/news-review-icann57-hyderabad-india.html"><span>http://www.domainmondo.com/2016/11/news-review-icann57-hyderabad-india.html</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref12" name="_ftn12"><sup><span>[12]</span></sup></a> <span>Art III, Bylaws of Public Technical Identifiers, ICANN. (</span><a href="https://pti.icann.org/bylaws"><span>https://pti.icann.org/bylaws</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref13" name="_ftn13"><sup><span>[13]</span></sup></a> <span>1.4.1.1, gTLD Applicant Guidebook ICANN, 1-39.(</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref14" name="_ftn14"><sup><span>[14]</span></sup></a> <span>NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 15. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref15" name="_ftn15"><sup><span>[15]</span></sup></a> <span>1.2.1; 1.2.2, gTLD Applicant Guidebook ICANN, 1-21. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref16" name="_ftn16"><sup><span>[16]</span></sup></a><span>(</span><a href="https://www.verisign.com/en_US/internet-technology-news/verisign-press-releases/articles/index.xhtml?artLink=aHR0cDovL3ZlcmlzaWduLm5ld3NocS5idXNpbmVzc3dpcmUuY29tL3ByZXNzLXJlbGVhc2UvdmVyaXNpZ24tc3RhdGVtZW50LXJlZ2FyZGluZy13ZWItYXVjdGlvbi1yZXN1bHRz"><span>https://www.verisign.com/en_US/internet-technology-news/verisign-press-releases/articles/index.xhtml?artLink=aHR0cDovL3ZlcmlzaWduLm5ld3NocS5idXNpbmVzc3dpcmUuY29tL3ByZXNzLXJlbGVhc2UvdmVyaXNpZ24tc3RhdGVtZW50LXJlZ2FyZGluZy13ZWItYXVjdGlvbi1yZXN1bHRz</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref17" name="_ftn17"><sup><span>[17]</span></sup></a> <span>1.2.7, gTLD Applicant Guidebook ICANN, 1-30. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref18" name="_ftn18"><sup><span>[18]</span></sup></a> <span>DECLARATION OF CHRISTINE WILLETT IN SUPPORT OF ICANN’S OPPOSITION TO PLAINTIFF’S <i>EX PARTE </i>APPLICATION FOR TEMPORARY RESTRAINING ORDER, 4. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref19" name="_ftn19"><sup><span>[19]</span></sup></a> <span>1.1.2.5, gTLD Applicant Guidebook ICANN, 1-8. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref20" name="_ftn20"><sup><span>[20]</span></sup></a> <span>1.2.1, gTLD Applicant Guidebook ICANN, 1-21. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref21" name="_ftn21"><sup><span>[21]</span></sup></a> <span>DECLARATION OF CHRISTINE WILLETT IN SUPPORT OF ICANN’S OPPOSITION TO PLAINTIFF’S <i>EX PARTE </i>APPLICATION FOR TEMPORARY RESTRAINING ORDER, 7. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref22" name="_ftn22"><sup><span>[22]</span></sup></a> <span>6.8; 6.11, gTLD Applicant Guidebook ICANN, 6-5 (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>);</span></p>
<p style="text-align: justify; "><span> DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT, 10. (</span><a href="http://domainnamewire.com/wp-content/icann-donuts-motion.pdf"><span>http://domainnamewire.com/wp-content/icann-donuts-motion.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref23" name="_ftn23"><sup><span>[23]</span></sup></a> <span>1.1.2.10, gTLD Applicant Guidebook ICANN. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref24" name="_ftn24"><sup><span>[24]</span></sup></a> <span>NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 15. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref25" name="_ftn25"><sup><span>[25]</span></sup></a><span> DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT, 8. (</span><a href="http://domainnamewire.com/wp-content/icann-donuts-motion.pdf"><span>http://domainnamewire.com/wp-content/icann-donuts-motion.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref26" name="_ftn26"><sup><span>[26]</span></sup></a> <span>26(f); 65, Federal Rules of Civil Procedure (</span><a href="https://www.federalrulesofcivilprocedure.org/frcp/title-viii-provisional-and-final-remedies/rule-65-injunctions-and-restraining-orders/"><span>https://www.federalrulesofcivilprocedure.org/frcp/title-viii-provisional-and-final-remedies/rule-65-injunctions-and-restraining-orders/</span></a><span>); (</span><a href="https://www.federalrulesofcivilprocedure.org/frcp/title-v-disclosures-and-discovery/rule-26-duty-to-disclose-general-provisions-governing-discovery/"><span>https://www.federalrulesofcivilprocedure.org/frcp/title-v-disclosures-and-discovery/rule-26-duty-to-disclose-general-provisions-governing-discovery/</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref27" name="_ftn27"><sup><span>[27]</span></sup></a> <span>6.10, gTLD Applicant Guidebook ICANN, 6-6. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>); (</span><a href="https://www.icann.org/resources/reviews/specific-reviews/cct"><span>https://www.icann.org/resources/reviews/specific-reviews/cct</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref28" name="_ftn28"><sup><span>[28]</span></sup></a><span> 12(b)(6), Federal Rules of Civil Procedure; DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT, 6. (</span><a href="http://domainnamewire.com/wp-content/icann-donuts-motion.pdf"><span>http://domainnamewire.com/wp-content/icann-donuts-motion.pdf</span></a><span>) </span></p>
<p style="text-align: justify; "><a href="#_ftnref29" name="_ftn29"><sup><span>[29]</span></sup></a> <span>DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT, 8. (</span><a href="http://domainnamewire.com/wp-content/icann-donuts-motion.pdf"><span>http://domainnamewire.com/wp-content/icann-donuts-motion.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref30" name="_ftn30"><sup><span>[30]</span></sup></a> <span>PLAINTIFF RUBY GLEN, LLC’S OPPOSITION TO DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES, 12.</span></p>
<p style="text-align: justify; "><span>(</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-opposition-motion-dismiss-first-amended-complaint-07nov16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-opposition-motion-dismiss-first-amended-complaint-07nov16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref31" name="_ftn31"><sup><span>[31]</span></sup></a> <span>(</span><a href="https://archive.icann.org/en/accountability/frameworks-principles/legal-corporate.htm"><span>https://archive.icann.org/en/accountability/frameworks-principles/legal-corporate.htm</span></a><span>); Art. 1(c), Bylaws for ICANN. (</span><a href="https://www.icann.org/resources/pages/governance/bylaws-en"><span>https://www.icann.org/resources/pages/governance/bylaws-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref32" name="_ftn32"><sup><span>[32]</span></sup></a> <span>(</span><a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1668"><span>http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1668</span></a><span>); NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 24. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref33" name="_ftn33"><sup><span>[33]</span></sup></a><span> 6.6, gTLD Applicant Guidebook ICANN, 6-4. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref34" name="_ftn34"><sup><span>[34]</span></sup></a> <span>DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT, 18. (</span><a href="http://domainnamewire.com/wp-content/icann-donuts-motion.pdf"><span>http://domainnamewire.com/wp-content/icann-donuts-motion.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref35" name="_ftn35"><sup><span>[35]</span></sup></a> <span>(</span><a href="https://www.icann.org/resources/pages/mechanisms-2014-03-20-en"><span>https://www.icann.org/resources/pages/mechanisms-2014-03-20-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref36" name="_ftn36"><sup><span>[36]</span></sup></a> <span>AMENDED REPLY MEMORANDUM IN SUPPORT OF ICANN’S MOTION TO DISMISS FIRST AMENDED COMPLAINT, 4. (</span><a href="https://www.icann.org/en/system/files/files/litigation-dca-reply-memo-support-icann-motion-dismiss-first-amended-complaint-14apr16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-dca-reply-memo-support-icann-motion-dismiss-first-amended-complaint-14apr16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref37" name="_ftn37"><sup><span>[37]</span></sup></a><span> 501(c)(3), Internal Revenue Code, USA. (</span><a href="https://www.irs.gov/charities-non-profits/charitable-organizations/exemption-requirements-section-501-c-3-organizations"><span>https://www.irs.gov/charities-non-profits/charitable-organizations/exemption-requirements-section-501-c-3-organizations</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref38" name="_ftn38"><sup><span>[38]</span></sup></a> <span>Art. II, Public Technical Identifiers, Articles of Incorporation, ICANN. (</span><a href="https://pti.icann.org/articles-of-incorporation"><span>https://pti.icann.org/articles-of-incorporation</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref39" name="_ftn39"><sup><span>[39]</span></sup></a><span>(</span><a href="https://community.icann.org/display/alacpolicydev/At-Large+New+gTLD+Auction+Proceeds+Discussion+Paper+Workspace"><span>https://community.icann.org/display/alacpolicydev/At-Large+New+gTLD+Auction+Proceeds+Discussion+Paper+Workspace</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref40" name="_ftn40"><sup><span>[40]</span></sup></a> <span>(</span><a href="https://www.icann.org/policy"><span>https://www.icann.org/policy</span></a><span>); 4.3, gTLD Applicant Guidebook ICANN, 4-19. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref41" name="_ftn41"><sup><span>[41]</span></sup></a><span>5, Internet Corporation for ASsigned Names and Numbers, Fiscal Statements As of and for the Years Ended June 30, 2016 and 2015. (</span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun16-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun16-en.pdf</span></a><span>);</span></p>
<p style="text-align: justify; "><span>(</span><a href="http://domainincite.com/21204-icann-has-400m-in-the-bank?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+DomainIncite+%28DomainIncite.com%29"><span>http://domainincite.com/21204-icann-has-400m-in-the-bank?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+DomainIncite+%28DomainIncite.com%29</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref42" name="_ftn42"><sup><span>[42]</span></sup></a><span> (</span><a href="http://www.theregister.co.uk/2016/07/28/someone_paid_135m_for_dot_web"><span>http://www.theregister.co.uk/2016/07/28/someone_paid_135m_for_dot_web</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref43" name="_ftn43"><sup><span>[43]</span></sup></a><span>(</span><a href="https://community.icann.org/display/CWGONGAP/Cross-Community+Working+Group+on+new+gTLD+Auction+Proceeds+Home"><span>https://community.icann.org/display/CWGONGAP/Cross-Community+Working+Group+on+new+gTLD+Auction+Proceeds+Home</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref44" name="_ftn44"><sup><span>[44]</span></sup></a><span> (</span><a href="https://www.icann.org/public-comments/new-gtld-auction-proceeds-2015-09-08-en"><span>https://www.icann.org/public-comments/new-gtld-auction-proceeds-2015-09-08-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref45" name="_ftn45"><sup><span>[45]</span></sup></a><span> (</span><a href="https://www.icann.org/news/announcement-2-2016-12-13-en"><span>https://www.icann.org/news/announcement-2-2016-12-13-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref46" name="_ftn46"><sup><span>[46]</span></sup></a> <span>(</span><a href="https://www.icann.org/news/announcement-2-2016-12-13-en"><span>https://www.icann.org/news/announcement-2-2016-12-13-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref47" name="_ftn47"><sup><span>[47]</span></sup></a><span>(</span><a href="https://www.icann.org/news/announcement-2-2016-12-13-en"><span>https://www.icann.org/news/announcement-2-2016-12-13-en</span></a><span>); </span></p>
<p style="text-align: justify; "><span>(</span><a href="https://community.icann.org/display/CWGONGAP/Cross-Community+Working+Group+on+new+gTLD+Auction+Proceeds+Home"><span>https://community.icann.org/display/CWGONGAP/Cross-Community+Working+Group+on+new+gTLD+Auction+Proceeds+Home</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref48" name="_ftn48"><sup><span>[48]</span></sup></a><span> (</span><a href="https://ccnso.icann.org/workinggroups/ccwg-charter-07nov16-en.pdf"><span>https://ccnso.icann.org/workinggroups/ccwg-charter-07nov16-en.pdf</span></a><span>); (</span><a href="https://www.icann.org/news/announcement-2-2016-12-13-en"><span>https://www.icann.org/news/announcement-2-2016-12-13-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref49" name="_ftn49"><sup><span>[49]</span></sup></a><span> (</span><a href="https://www.icann.org/public-comments/new-gtld-auction-proceeds-2015-09-08-en"><span>https://www.icann.org/public-comments/new-gtld-auction-proceeds-2015-09-08-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref50" name="_ftn50"><sup><span>[50]</span></sup></a> <span>(</span><a href="https://community.icann.org/display/CWGONGAP/CCWG+Charter"><span>https://community.icann.org/display/CWGONGAP/CCWG+Charter</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref51" name="_ftn51"><sup><span>[51]</span></sup></a><span> 4.3, gTLD Applicant Guidebook ICANN, 4-19. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref52" name="_ftn52"><sup><span>[52]</span></sup></a><span> (</span><a href="https://newgtlds.icann.org/en/applicants/auctions/proceeds"><span>https://newgtlds.icann.org/en/applicants/auctions/proceeds</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref53" name="_ftn53"><sup><span>[53]</span></sup></a><span> (</span><a href="https://community.icann.org/pages/viewpage.action?pageId=63150102"><span>https://community.icann.org/pages/viewpage.action?pageId=63150102</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref54" name="_ftn54"><sup><span>[54]</span></sup></a> <span>(</span><a href="https://www.icann.org/news/announcement-2-2016-12-13-en"><span>https://www.icann.org/news/announcement-2-2016-12-13-en</span></a><span>)</span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/icann2019s-problems-with-accountability-and-the-web-controversy'>https://cis-india.org/internet-governance/blog/icann2019s-problems-with-accountability-and-the-web-controversy</a>
</p>
No publisherPadma VenkataramanICANNTransparencyInternet GovernanceAccountability2017-10-28T15:49:38ZBlog EntryDIDP Request #1: ICANN's Expenditures on "Travel & Meetings"
https://cis-india.org/internet-governance/blog/didp-request-1-icanns-expenditures-on-travel-meetings
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking details of expenditure by ICANN at its Meetings. CIS' request and ICANN's response are detailed below. </b>
<h2 style="text-align: justify; "></h2>
<h2 style="text-align: justify; "></h2>
<h2 style="text-align: justify; ">CIS' Request</h2>
<p style="text-align: justify; "><span>18 December 2014</span></p>
<p style="text-align: justify; ">To:</p>
<p style="text-align: justify; ">Mr. Cherine Chalaby, Chair, Finance Committee of the Board</p>
<p style="text-align: justify; ">Mr. Xavier Calvez, Chief Financial Officer</p>
<p style="text-align: justify; ">Mr. Samiran Gupta, ICANN India</p>
<p style="text-align: justify; ">All other members of Staff involved in accounting and financial tasks</p>
<p style="text-align: center; "><strong>Sub: Request for itemized details of expenditure by ICANN at its Meetings</strong></p>
<p style="text-align: justify; ">We would like to thank Mr. Calvez and Mr. Gupta for providing information regarding ICANN’s domain name revenues for the fiscal year ending June 30, 2014.<a href="#_ftn1">[1]</a> We would like to request further information through the DIDP.</p>
<p style="text-align: justify; ">In the Audited Financial Statements for the fiscal year ended June 30, 2014, the “statements of activities” provides Total Expenses (for ICANN and New gTLD) as USD 124,400,000.<a href="#_ftn2">[2]</a> For the fiscal year ended June 30, 2013, the Total Expenses (ICANN and New gTLD) noted is USD 150,362,000.</p>
<p style="text-align: justify; ">According to the statement, this covers expenses for Personnel, Travel and meetings, Professional services and Administration. Quarterly Reports note that the head “Travel and meetings” includes community support requests.<a href="#_ftn3">[3]</a> In addition to these heads, Quarterly Reports include “Bad debt expenses” and “Depreciation expenses”. The manner of accounting for these is explained in <span>Note 2</span> to the Notes to Financial Statements.<a href="#_ftn4">[4]</a> Note 2 explains that the expenses statement is prepared by “functional allocation of expenses” to identifiable programs or support services, or otherwise by methods determined by the management.</p>
<p style="text-align: justify; ">For the purposes of our research into normative and practised transparency and accountability in Internet governance, we request, to begin with, <i>current and historical</i> information regarding itemized, detailed expenses under the head “Travel and meetings”. We request this information from 1999 till 2014. We request that such information be categorized and sub-categorised as follows:</p>
<p style="text-align: justify; ">Total and Individual Expenses for each meeting (categorised by meeting and year):</p>
<p style="text-align: justify; "><span>1. Total and individual expenses for ICANN staff (differentiated by department and name of each individual attending the event, including dates/duration of attendance);</span></p>
<p style="text-align: justify; ">- Also broken down into each individual expense (flights, accommodation, per diem or separate local transport, food and other expenses).</p>
<p style="text-align: justify; ">- Each ICANN staff member who attended the event to be named.</p>
<p style="text-align: justify; ">2. <span>Total and individual expenses for members of ICANN Board (listed by each Board member and dates/duration of attendance);</span></p>
<p style="text-align: justify; ">- Broken down into each individual expense (flights, accommodation, per diem or separate local transport, food and other expenses).</p>
<p style="text-align: justify; ">- Each Board member to be named.</p>
<p style="text-align: justify; "><span>3. Total and individual expenses for members of ICANN constituencies (ALAC, ATRT, ccNSO, GAC, GNSO, etc.)</span></p>
<p style="text-align: justify; ">- Broken down into each individual expense (flights, accommodation, per diem or separate local transport, food and other expenses).</p>
<p style="text-align: justify; ">- Each attendee for whom ICANN covered expenses to be named.</p>
<p style="text-align: justify; "><span>4. Total and individual expenses for ICANN fellows</span></p>
<p style="text-align: justify; ">- Broken down into each individual expense (flights, accommodation, per diem or separate local transport, food and other expenses).</p>
<p style="text-align: justify; ">- Each attendee for whom ICANN covered expenses to be named, including their region and stakeholder affiliation.</p>
<p style="text-align: justify; ">5. <span>Total and individual expenses incurred for any other ICANN affiliate or liaison (ISOC, IETF, IAB, etc.)</span></p>
<p style="text-align: justify; ">- Broken down into each individual expense (flights, accommodation, per diem or separate local transport, food and other expenses).</p>
<p style="text-align: justify; ">- Each attendee for whom ICANN covered expenses to be named, including their affiliation.</p>
<p style="text-align: justify; ">6. <span>Total and individual expenses incurred for any other person, whether or not directly affiliated with ICANN</span></p>
<p style="text-align: justify; ">- Broken down into each individual expense (flights, accommodation, per diem or separate local transport, food and other expenses).</p>
<p style="text-align: justify; ">- Each attendee for whom ICANN covered expenses to be named, including their affiliation.</p>
<p style="text-align: justify; "><span>Please note that we request the above-detailed information for ICANN meetings, and also other meetings for which ICANN may provide financial support (for instance, CWG-Stewardship or CWG-Accountability). We request, as a preliminary matter, a list of </span><i>all meetings</i><span> to which ICANN provides and has, in the past, provided financial support (1999-2014).</span></p>
<p style="text-align: justify; ">We note that some information of this nature is available in the Travel Support Reports.<a href="#_ftn5">[5]</a> However, the Travel Support Reports are available only from 2008 (Cairo meeting), and are not available for ICANN48 to ICANN51. Further, the Travel Support Reports do not exhibit the level of granularity necessary for research and scrutiny. As explained above, we request granular information for all meetings.</p>
<p style="text-align: justify; ">In our view, providing such information will not violate any individual or corporate rights of ICANN, its Staff, Board, Affiliates/Liaisons or any other individual. Public corporations and even private organisations performing public functions may be subjected to or accept an increased level of transparency and accountability. We believe this is of especial importance to ICANN, as it is involved in a process to enhance its accountability, intrinsically related to IANA Stewardship Transition. We expressed similar views in our initial comment to “Enhancing ICANN Accountability”.<a href="#_ftn6">[6]</a> Increased transparency from ICANN may also address accountability concerns present across stakeholder-groups both within and outside ICANN.</p>
<p style="text-align: justify; ">We await your favorable response and the requested information within the prescribed time limit. Please do not hesitate to contact us should you require any clarifications.</p>
<p style="text-align: justify; ">Thank you very much.</p>
<p style="text-align: justify; "><span>Warm regards,</span></p>
<p style="text-align: justify; ">Geetha Hariharan</p>
<p style="text-align: justify; ">Centre for Internet & Society</p>
<p style="text-align: justify; ">W: <a href="http://cis-india.org">http://cis-india.org</a></p>
<p> </p>
<h2>ICANN's Response</h2>
<p>ICANN responded to the above request for information within the stipulated time of 30 days. <strong><a href="https://www.icann.org/en/system/files/files/cis-response-17jan15-en.pdf">ICANN’s response is here</a></strong>. A short summary of CIS's request and ICANN's response can be found <a href="https://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file"><strong>in this table (Request S. no. 1)</strong></a>.</p>
<p> </p>
<hr align="left" size="1" width="33%" />
<p><a href="#_ftnref1">[1]</a> See <i>ICANN reveals hitherto undisclosed details of domain names revenues</i>, <a href="http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014">http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014</a>.</p>
<p><a href="#_ftnref2">[2]</a> See <i>ICANN Financial Statements As of and For the years ended June 30, 2014 and 2013</i>, pages 7, 19-20, <a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun14-en.pdf">https://www.icann.org/en/system/files/files/financial-report-fye-30jun14-en.pdf</a>.</p>
<p><a href="#_ftnref3">[3]</a> For instance, see <i>ICANN FY14 Financial Package: For the nine months ending March 2014</i>, pages 2-5, <a href="https://www.icann.org/en/system/files/files/package-fy14-31mar14-en.pdf">https://www.icann.org/en/system/files/files/package-fy14-31mar14-en.pdf</a>.</p>
<p><a href="#_ftnref4">[4]</a> <i>Supra</i> note 1, page 14.</p>
<p><a href="#_ftnref5">[5]</a> See Community Travel Support, <a href="https://www.icann.org/resources/pages/travel-support-2012-02-25-en#reports">https://www.icann.org/resources/pages/travel-support-2012-02-25-en#reports</a>.</p>
<p><a href="#_ftnref6">[6]</a> See CIS Comments on Enhancing ICANN Accountability, <a href="http://cis-india.org/internet-governance/blog/cis-comments-enhancing-icann-accountability">http://cis-india.org/internet-governance/blog/cis-comments-enhancing-icann-accountability</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-1-icanns-expenditures-on-travel-meetings'>https://cis-india.org/internet-governance/blog/didp-request-1-icanns-expenditures-on-travel-meetings</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-05T08:00:36ZBlog EntryDIDP Request #4: ICANN and the NETmundial Principles
https://cis-india.org/internet-governance/blog/didp-request-4-icann-and-the-netmundial-principles
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking details of ICANN's implementation of the NETmundial Principles that it has endorsed widely and publicly. CIS' request and ICANN's response are detailed below.</b>
<p style="text-align: justify; "> </p>
<h3 style="text-align: justify; ">CIS Request</h3>
<p style="text-align: justify; "><span>27 December 2014</span></p>
<p style="text-align: justify; ">To:</p>
<p style="text-align: justify; ">Mr. Fadi Chehade, CEO and President</p>
<p style="text-align: justify; ">Mr. Steve Crocker, Chairman of the Board</p>
<p style="text-align: justify; ">Mr. Cherine Chalaby, Chair, Finance Committee of the Board</p>
<p style="text-align: justify; ">Mr. Xavier Calvez, Chief Financial Officer</p>
<p style="text-align: center; "><strong>Sub: Details of implementation by and within ICANN of the NETmundial Outcome Document (April ‘14)</strong></p>
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; ">We express our appreciation at ICANN’s prompt acknowledgement of our previous DIDP request, and await the information. We would, in the meanwhile, request information regarding ICANN’s internal measures to implement the NETmundial Outcome Document.<a href="#_ftn1">[1]</a><span> </span></p>
<p style="text-align: justify; ">In a post titled <i>Turning Talk Into Action After NETmundial,</i><a href="#_ftn2">[2]</a> Mr. Chehade emphasized the imperative to carry forward the NETmundial principles to fruition. In nearly every public statement, Mr. Chehade and other ICANN representatives have spoken in praise and support of NETmundial and its Outcome Document.</p>
<p style="text-align: justify; ">But in the absence of binding value to them, self-regulation and organizational initiatives pave the way to adopt them. There must be concrete action to implement the Principles. In this regard, we request information about mechanisms or any other changes afoot within ICANN, implemented internally in recognition of the NETmundial Principles.</p>
<p style="text-align: justify; ">At the IGF in Istanbul, when CIS’ Sunil Abraham raised this query,<a href="#_ftn3">[3]</a> Mr. Chehade responded that mechanisms ought to and will be undertaken jointly and in collaboration with other organisations. However, institutional improvements are intra-organisational as well, and require changes <i>within </i>ICANN. An example would be the suggestions to strengthen the IGF, increase its term, and provide financial support (some of which are being achieved, though ICANN’s financial contribution to IGFSA is incongruous in comparison to its financial involvement in the NETmundial Initiative).<span> </span></p>
<p style="text-align: justify; ">From ICANN, we have seen consistent championing of the controversial NETmundial Initiative,<a href="#_ftn4">[4]</a> and contribution to the IGF Support Association.<a href="#_ftn5">[5]</a> There are also mechanisms instituted for IANA Stewardship Transition and Enhancing ICANN Accountability,<a href="#_ftn6">[6]</a> as responses to the NTIA’s announcement to not renew the IANA functions contract and related concerns of accountability.</p>
<p style="text-align: justify; ">In addition to the above, we would like to know what ICANN has done to implement the NETmundial Principles, internally and proactively.</p>
<p style="text-align: justify; ">We hope that our request will be processed within the stipulated time period of 30 days. Do let us know if you require any clarifications on our queries.</p>
<p style="text-align: justify; ">Thank you very much.</p>
<p style="text-align: justify; ">Warm regards,</p>
<p style="text-align: justify; ">Geetha Hariharan</p>
<p style="text-align: justify; ">Centre for Internet & Society</p>
<p style="text-align: justify; ">W: <a href="http://cis-india.org">http://cis-india.org</a></p>
<p style="text-align: justify; "> </p>
<h3 style="text-align: justify; ">ICANN Response</h3>
<p style="text-align: justify; ">ICANN's response to the above request disappointingly linked to the very same blogpost we note in our request, <i>Turning Talk Into Action After NETmundial</i>. Following this, ICANN points us to their involvement in the NETmundial Initiative. On the question of internal implementation, ICANN's response is defensive, to say the least. "ICANN is not the home for the implementation of the NETmundial Principles", they say. In any event, ICANN defends that it already implements the NETmundial Principles in its functioning, a response that comes as a surprise to us. "<span>Many of the NETmundial Principles are high-level statements that permeate through the </span><span>work of any entity – particularly a multistakeholder entity like ICANN – that is interested </span><span>in the upholding of the inclusive, multistakeholder process within the Internet governance </span><span>framework", notes ICANN's response. Needless to say, ICANN's response falls short of responding to our queries. </span></p>
<p style="text-align: justify; "><span>Finally, ICANN notes that our request is beyond the scope of the DIDP, as it does not relate to ICANN's operational activities. Notwithstanding that our query does in fact seek ICANN's operationalisation of the NETmundial Principles, we are now confused as to where to go to seek this information from ICANN. If the DIDP is not the effective transparency tool it is aimed to be, who in ICANN can provide answers to these questions?</span></p>
<p style="text-align: justify; "><span>ICANN's response may be <a href="https://www.icann.org/en/system/files/files/cis-netmundial-response-27jan15-en.pdf"><strong>found here</strong></a>. A short summary of our request and ICANN's response may be found <a href="https://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file"><strong>in this table (Request S. no. 4)</strong></a>.</span></p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><a href="#_ftnref1">[1]</a> See <i>NETmundial Multi-stakeholder Statement</i>, <a href="http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf">http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf</a>. <i> </i></p>
<p style="text-align: justify; "><a href="#_ftnref2">[2]</a> See Chehade, <i>Turning Talk Into Action After NETmundial</i>, <a href="http://blog.icann.org/2014/05/turning-talk-into-action-after-netmundial/">http://blog.icann.org/2014/05/turning-talk-into-action-after-netmundial/</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref3">[3]</a> See <i>ICANN Open Forum</i>, 9<sup>th</sup> IGF 2014 (Istanbul, Turkey), <a href="https://www.youtube.com/watch?v=Cio31nsqK_A">https://www.youtube.com/watch?v=Cio31nsqK_A</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref4">[4]</a> See McCarthy, <i>I’m Begging You To Join</i>, The Register (12 December 2014), <a href="http://www.theregister.co.uk/2014/12/12/im_begging_you_to_join_netmundial_initiative_gets_desperate/">http://www.theregister.co.uk/2014/12/12/im_begging_you_to_join_netmundial_initiative_gets_desperate/</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref5">[5]</a> See <i>ICANN Donates $50k to Internet Governance Forum Support Association</i>, <a href="https://www.icann.org/resources/press-material/release-2014-12-18-en">https://www.icann.org/resources/press-material/release-2014-12-18-en</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref6">[6]</a> See <i>NTIA IANA Functions’ Stewardship Transition & Enhancing ICANN Accountability Processes</i>, <a href="https://www.icann.org/stewardship-accountability">https://www.icann.org/stewardship-accountability</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-4-icann-and-the-netmundial-principles'>https://cis-india.org/internet-governance/blog/didp-request-4-icann-and-the-netmundial-principles</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-05T08:28:44ZBlog EntryDIDP Request #6: Revenues from gTLD auctions
https://cis-india.org/internet-governance/blog/didp-request-6-revenues-from-gtld-auctions
<b>CIS sent ICANN a request under its Documentary Information Disclosure Policy, seeking information regarding revenues received from gTLD auctions. CIS' request and ICANN's response are detailed below.</b>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">CIS Request</h2>
<p style="text-align: justify; "><span>12 January 2015</span><span> </span></p>
<p style="text-align: justify; ">To:</p>
<p style="text-align: justify; ">Mr. Fadi Chehade, CEO and President</p>
<p style="text-align: justify; ">Mr. Steve Crocker, Chairman of the Board</p>
<p style="text-align: center; "><strong>Sub: Revenues from gTLD auctions</strong></p>
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; ">It is our understanding that an auction for a Generic Top Level Domain (gTLD) is used as a last-resort mechanism in order to resolve string contention, i.e., when there are groups of applications for same or confusingly similar new gTLDs. As of now, the ICANN website only furnishes information of the winning applicant and the winning price, as regards each new gTLD auction.<a href="#_ftn1">[1]</a> We have observed that information regarding the bids from all other applicants is not available. The revenue information provided to us<a href="#_ftn2">[2]</a> does not include revenues from new gTLDs.</p>
<p style="text-align: justify; ">In this regard, we request you to provide us with the following information:</p>
<p style="text-align: justify; ">(i) How many gTLDs have been sold <i>via</i> the auction process, since its inception?</p>
<p style="text-align: justify; ">(ii) What were the starting and winning bids in the ICANN auctions conducted?</p>
<p style="text-align: justify; ">(iii) What revenue has ICANN received from the gTLD auctions, since the first ICANN auction was conducted? Please also provide information about the winner (name, corporate information provided to/ available with ICANN).</p>
<p style="text-align: justify; ">(iv) How are proceeds from the gTLD auction process utilized?</p>
<p style="text-align: justify; "><span>We believe that this information will give us a framework for understanding the gTLD auction process within ICANN. Furthermore, it will assist us in understanding the manner and purpose for which the proceeds from the auctioning process are utilized, in the broader structure of ICANN transparency and accountability.</span></p>
<p style="text-align: justify; ">We hope that our request will be processed within the stipulated time period of 30 days. Do let us know if you require any clarifications on our queries.</p>
<p style="text-align: justify; ">Warm regards,</p>
<p style="text-align: justify; ">Lakshmi Venkataraman,</p>
<p style="text-align: justify; ">IV Year, NALSAR University of Law, Hyderabad,</p>
<p style="text-align: justify; "><i>for </i>Centre for Internet & Society</p>
<p style="text-align: justify; ">W: <a href="http://cis-india.org">http://cis-india.org</a></p>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; ">ICANN Response</h2>
<p style="text-align: justify; ">ICANN's response to the above query is positive. ICANN states that all information surrounding the auctions is available on the New gTLDs microsite, and on the Auctions page: <span>http://newgtlds.icann.org/en/applicants/auctions. The current status of </span><span>auction proceeds and costs are available at </span><span>http://newgtlds.icann.org/en/applicants/auctions/proceeds,</span><span> and auction results are at </span><span>https://gtldresult.icann.org/application-result/applicationstatus/auctionresults. The utilization of proceeds from the auctions is yet to be decided by the ICANN Board:</span><span> “[auction] proceeds will be reserved and earmarked until the Board determines a plan for the appropriate use of the funds through consultation with the community. Auction proceeds are net of any Auction costs. Auction costs may include initial set-up costs, auction management fees, and escrow fees.”</span></p>
<p style="text-align: justify; "><span style="text-align: justify; ">ICANN's response to our DIDP request may be <a href="https://www.icann.org/en/system/files/files/cis-response-09feb15-en.pdf"><strong>found here</strong></a>.</span><span style="text-align: justify; "> A short summary of our request and ICANN's response may be found </span><a href="http://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file" style="text-align: justify; "><strong>in this table (Request S. no. 6)</strong></a><span style="text-align: justify; ">.</span></p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><a href="#_ftnref1">[1]</a> See <i>Auction Results</i>, <a href="https://gtldresult.icann.org/application-result/applicationstatus/auctionresults">https://gtldresult.icann.org/application-result/applicationstatus/auctionresults</a>.</p>
<p style="text-align: justify; "><a href="#_ftnref2">[2]</a> See <i>ICANN reveals hitherto undisclosed details of domain names revenues</i>, <a href="http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014">http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/didp-request-6-revenues-from-gtld-auctions'>https://cis-india.org/internet-governance/blog/didp-request-6-revenues-from-gtld-auctions</a>
</p>
No publishergeethaICANNDIDPTransparencyAccountability2015-03-10T10:59:37ZBlog EntryICANN’s Documentary Information Disclosure Policy – I: DIDP Basics
https://cis-india.org/internet-governance/blog/icann2019s-documentary-information-disclosure-policy-2013-i-didp-basics
<b>In a series of blogposts, Vinayak Mithal analyses ICANN's reactive transparency mechanism, comparing it with freedom of information best practices. In this post, he describes the DIDP and its relevance for the Internet community.</b>
<p style="text-align: justify; ">The Internet Corporation for Assigned Names and Numbers (“ICANN”) is a non-profit corporation incorporated in the state of California and vested with the responsibility of managing the DNS root, generic and country-code Top Level Domain name system, allocation of IP addresses and assignment of protocol identifiers. As an internationally organized corporation with its own multi-stakeholder community of Advisory Groups and Supporting Organisations, ICANN is a large and intricately woven governance structure. Necessarily, ICANN undertakes through its Bye-laws that “<i>in performing its functions ICANN shall remain accountable to the Internet community through mechanisms that enhance ICANN’s effectiveness</i>”. While many of its documents, such as its Annual Reports, financial statements and minutes of Board meetings, are public, ICANN has instituted the Documentary Information Disclosure Policy (“DIDP”), which like the RTI in India, is a mechanism through which public is granted access to documents with ICANN which are not otherwise available publicly. It is this policy – the DIDP – that I propose to study.</p>
<p style="text-align: justify; ">In a series of blogposts, I propose to introduce the DIDP to unfamiliar ears, and to analyse it against certain freedom of information best practices. Further, I will analyse ICANN’s responsiveness to DIDP requests to test the effectiveness of the policy. However, before I undertake such analysis, it is first good to know what the DIDP is, and how it is crucial to ICANN’s present and future accountability.</p>
<h3><strong>What is the DIDP?</strong></h3>
<p style="text-align: justify; ">One of the core values of the organization as enshrined under Article I Section 4.10 of the Bye-laws note that “in performing its functions ICANN shall remain accountable to the Internet community through mechanisms that enhance ICANN’s effectiveness”. Further, Article III of the ICANN Bye-laws, which sets out the transparency standard required to be maintained by the organization in the preliminary, states - “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”.</p>
<p style="text-align: justify; ">Accordingly, ICANN is under an obligation to maintain a publicly accessible website with information relating to its Board meetings, pending policy matters, agendas, budget, annual audit report and other related matters. It is also required to maintain on its website, information about the availability of accountability mechanisms, including reconsideration, independent review, and Ombudsman activities, as well as information about the outcome of specific requests and complaints invoking these mechanisms.</p>
<p style="text-align: justify; ">Pursuant to Article III of the ICANN Bye-laws for Transparency, ICANN also adopted the DIDP for disclosure of publicly unavailable documents and publish them over the Internet. This becomes essential in order to safeguard the effectiveness of its international multi-stakeholder operating model and its accountability towards the Internet community. Thereby, upon request made by members of the public, ICANN undertakes to furnish documents that are in possession, custody or control of ICANN and which are not otherwise publicly available, provided it does not fall under any of the defined conditions for non-disclosure. Such information can be requested via an email to <a href="mailto:didp@icann.org">didp@icann.org</a>.</p>
<h3><strong>Procedure</strong></h3>
<ul style="text-align: justify; ">
<li>Upon the receipt of a DIDP request, it is reviewed by the ICANN staff.</li>
<li>Relevant documents are identified and interview of the appropriate staff members is conducted.</li>
<li>The documents so identified are then assessed whether they come under the ambit of the conditions for non-disclosure.
<ul>
<li>Yes - A review is conducted as to whether, under the particular circumstances, the public interest in disclosing the documentary information outweighs the harm that may be caused by such disclosure. </li>
<li>Documents which are considered as responsive and appropriate for public disclosure are posted on the ICANN website.</li>
<li>In case of request of documents whose publication is appropriate but premature at the time of response then the same is indicated in the response and upon publication thereafter, is notified to the requester.</li>
</ul>
</li>
</ul>
<h3><strong>Time Period and Publication </strong></h3>
<p style="text-align: justify; ">The response to the DIDP request is prepared by the staff and is made available to the requestor within a period of 30 days of receipt of request via email. The Request and the Response is also posted on the DIDP page <a href="http://www.icann.org/en/about/transparency">http://www.icann.org/en/about/transparency</a> in accordance with the posting guidelines set forth at <a href="http://www.icann.org/en/about/transparency/didp">http://www.icann.org/en/about/transparency/didp</a>.</p>
<h3><strong>Conditions for Non-Disclosure</strong></h3>
<p style="text-align: justify; ">There are certain circumstances under which ICANN may refuse to provide the documents requested by the public. The conditions so identified by ICANN have been categorized under 12 heads and includes internal information, third-party contracts, non-disclosure agreements, drafts of all reports, documents, etc., confidential business information, trade secrets, information protected under attorney-client privilege or any other such privilege, information which relates to the security and stability of the internet, etc.</p>
<p style="text-align: justify; ">Moreover, ICANN may refuse to provide information which is not designated under the specified conditions for non-disclosure if in its opinion the harm in disclosing the information outweighs the public interest in disclosing the information. Further, requests for information already available publicly and to create or compile summaries of any documented information may be declined by ICANN.</p>
<h3><strong>Grievance Redressal Mechanism </strong></h3>
<p style="text-align: justify; ">In certain circumstances the requestor might be aggrieved by the response received and so he has a right to appeal any decision of denial of information by ICANN through the Reconsideration Request procedure or the Independent Review procedure established under Section 2 and 3 of Article IV of the ICANN Bye-laws respectively. The application for review is made to the Board which has designated a Board Governance Committee for such reconsideration. The Independent Review is done by an independent third-party of Board actions, which are allegedly inconsistent with the Articles of Incorporation or Bye-laws of ICANN.</p>
<h3><strong>Why does the DIDP matter?</strong></h3>
<p style="text-align: justify; ">The breadth of ICANN’s work and its intimate relationship to the continued functioning of the Internet must be appreciated before our analysis of the DIDP can be of help. ICANN manages registration and operations of generic and country-code Top Level Domains (TLD) in the world. This is a TLD:</p>
<p style="text-align: justify; "><img src="https://cis-india.org/internet-governance/blog/TLD.jpg/@@images/1bb21859-d1aa-41c6-b5e0-4041ae099f54.jpeg" alt="TLD" class="image-inline" title="TLD" /></p>
<p style="text-align: justify; ">(<i>Source</i>: <a class="external-link" href="http://geovoices.geonetric.com/wp-content/uploads/2013/11/parts_of_a_domain_name.jpg">here</a>)</p>
<p style="text-align: justify; ">Operation of many gTLDs, such as .com, .biz or .info, is under contract with ICANN and an entity to which such operation is delegated. For instance, Verisign operates the .com Registry. Any organization that wishes to allow others to register new domain names under a gTLD (sub-domains such as ‘benefithealth’ in the above example) must apply to ICANN to be an ICANN-accredited Registrar. GoDaddy, for instance, is one such ICANN-accredited Registrar. Someone like you or me, who wants to get our own website – say, vinayak.com – buys from GoDaddy, which has a contract with ICANN under which it pays periodic sums for registration and renewal of individual domain names. When I buy from an ICANN-accredited Registrar, the Registrar informs the Registry Operator (say, Verisign), who then adds the new domain name (vinayak.com) to its registry list, and then it can be accessed on the Internet.</p>
<p style="text-align: justify; ">ICANN’s reach doesn’t stop here, technically. To add a new gTLD, an entity has to apply to ICANN, after which the gTLD has to be added to the root file of the Internet. The root file, which has the list of all TLDs (or all ‘legitimate’ TLDs, some would say), is amended by Verisign under its tripartite contract with the US Government and ICANN, after which Verisign updates the file in its ‘A’ <a href="http://root-servers.org/">root server</a>. The other 12 root servers use the same root file as the Verisign root server. Effectively, this means that <i>only </i>ICANN-approved TLDs (and all sub-domains such as ‘benefithealth’ or ‘vinayak’) are available across the Internet, on a global scale. Or at least, ICANN-approved TLDs have the most and widest reach. ICANN similarly manages country-code TLDs, such as .in for India, .pk for Pakistan or .uk for the United Kingdom.</p>
<p style="text-align: justify; ">All of this leads us to wonder whether the extent of ICANN’s voluntary and reactive transparency is sufficient for an organization of such scale and impact on the Internet, perhaps as much impact as the governments do. In the next post, I will analyse the DIDP’s conditions for non-disclosure of information with certain freedom of information best practices.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><i>Vinayak Mithal is a final year student at the Rajiv Gandhi National University of Law, Punjab. His interests lie in Internet governance and other aspects of tech law, which he hopes to explore during his internship at CIS and beyond. He may be reached at vinayakmithal@gmail.com.</i></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/icann2019s-documentary-information-disclosure-policy-2013-i-didp-basics'>https://cis-india.org/internet-governance/blog/icann2019s-documentary-information-disclosure-policy-2013-i-didp-basics</a>
</p>
No publisherVinayak MithalInternet GovernanceAccountabilityICANNDIDPTransparency2014-07-01T13:01:34ZBlog EntryTransparency in Surveillance
https://cis-india.org/internet-governance/blog/transparency-in-surveillance
<b>Transparency is an essential need for any democracy to function effectively. It may not be the only requirement for the effective functioning of a democracy, but it is one of the most important principles which need to be adhered to in a democratic state.</b>
<h2 style="text-align: justify; ">Introduction</h2>
<p style="text-align: justify; ">A democracy involves the state machinery being accountable to the citizens that it is supposed to serve, and for the citizens to be able to hold their state machinery accountable, they need accurate and adequate information regarding the activities of those that seek to govern them. However, in modern democracies it is often seen that those in governance often try to circumvent legal requirements of transparency and only pay lip service to this principle, while keeping their own functioning as opaque as possible.</p>
<p style="text-align: justify; ">This tendency to not give adequate information is very evident in the departments of the government which are concerned with surveillance, and merit can be found in the argument that all of the government's clandestine surveillance activities cannot be transparent otherwise they will cease to be "clandestine" and hence will be rendered ineffective. However, this argument is often misused as a shield by the government agencies to block the disclosure of all types of information about their activities, some of which may be essential to determine whether the current surveillance regime is working in an effective, ethical, and legal manner or not. It is this exploitation of the argument, which is often couched in the language of or coupled with concerns of national security, that this paper seeks to address while voicing the need for greater transparency in surveillance activities and structures.</p>
<p style="text-align: justify; ">In the first section the paper examines the need for transparency, and specifically deals with the requirement for transparency in surveillance. In the next part, the paper discusses the regulations governing telecom surveillance in India. The final part of the paper discusses possible steps that may be taken by the government in order to increase transparency in telecom surveillance while keeping in mind that the disclosure of such information should not make future surveillance ineffective.</p>
<h2 style="text-align: justify; ">Need for Transparency</h2>
<p style="text-align: justify; ">In today's age where technology is all pervasive, the term "surveillance" has developed slightly sinister overtones, especially in the backdrop of the Edward Snowden fiasco. Indeed, there have been several independent scandals involving mass surveillance of people in general as well as illegal surveillance of specific individuals. The fear that the term surveillance now invokes, especially amongst those social and political activists who seek to challenge the status quo, is in part due to the secrecy surrounding the entire surveillance regime. Leaving aside what surveillance is carried out, upon whom, and when - the state actors are seldom willing and open to talk about how surveillance is carried out, how decisions regarding who and how to target, are reached, how agency budgets are allocated and spent, how effective surveillance actions were, etc. While there may be justified security based arguments to not disclose the full extent of the state's surveillance activities, however this cloak of secrecy may be used illegally and in an unauthorized manner to achieve ends more harmful to citizen rights than the maintenance of security and order in the society.</p>
<p style="text-align: justify; ">Surveillance and interception/collection of communications data can take place under different legal processes in different countries, ranging from court-ordered requests of specified data from telecommunications companies to broad executive requests sent under regimes or regulatory frameworks requiring the disclosure of information by telecom companies on a pro-active basis. However, it is an open secret that data collection often takes place without due process or under non-legal circumstances.</p>
<p style="text-align: justify; ">It is widely believed that transparency is a critical step towards the creation of mechanisms for increased accountability through which law enforcement and government agencies access communications data. It is the first step in the process of starting discussions and an informed public debate regarding how the state undertakes activities of surveillance, monitoring and interception of communications and data. Since 2010, a large number of ICT companies have begun to publish transparency reports on the extent that governments request their user data as well as requirements to remove content. However, governments themselves have not been very forthcoming in providing such detailed information on surveillance programs which is necessary for an informed debate on this issue.<a href="#_ftn1" name="_ftnref1">[1]</a> Although some countries currently report limited information on their surveillance activities, e.g. the U.S. Department of Justice publishes an annual Wiretap Report (U.S. Courts, 2013a), and the United Kingdom publishes the Interception of Communications Commissioner Annual Report (May, 2013), which themselves do not present a complete picture, however even such limited measures are unheard of in a country such as India.</p>
<p style="text-align: justify; ">It is obvious that Governments can provide a greater level of transparency regarding the limits in place on the freedom of expression and privacy than transparency reports by individual companies. Company transparency reports can only illuminate the extent to which any one company receives requests and how that company responds to them. By contrast, government transparency reports can provide a much greater perspective on laws that can potentially restrict the freedom of expression or impact privacy by illustrating the full extent to which requests are made across the ICT industry. <a href="#_ftn2" name="_ftnref2">[2]</a></p>
<p style="text-align: justify; ">In India, the courts and the laws have traditionally recognized the need for transparency and derive it from the fundamental right to freedom of speech and expression guaranteed in our Constitution. This need coupled with a sustained campaign by various organizations finally fructified into the passage of the Right to Information Act, 2005, (RTI Act) which amongst other things also places an obligation on the sate to place its documents and records online so that the same may be freely available to the public. In light of this law guaranteeing the right to information, the citizens of India have the fundamental right to know what the Government is doing in their name. The free flow of information and ideas informs political growth and the freedom of speech and expression is the lifeblood of a healthy democracy, it acts as a safety valve. People are more ready to accept the decisions that go against them if they can in principle seem to influence them. The Supreme Court of India is of the view that the imparting of information about the working of the government on the one hand and its decision affecting the domestic and international trade and other activities on the other is necessary, and has imposed an obligation upon the authorities to disclose information.<a href="#_ftn3" name="_ftnref3">[3]</a></p>
<p style="text-align: justify; ">The Supreme Court, in <i>Namit Sharma</i> v. <i>Union of India</i>,<a href="#_ftn4" name="_ftnref4">[4]</a> while discussing the importance of transparency and the right to information has held:</p>
<p style="text-align: justify; ">"The Right to Information was harnessed as a tool for promoting development; strengthening the democratic governance and effective delivery of socio-economic services. <i> Acquisition of information and knowledge and its application have intense and pervasive impact on the process of taking informed decision, resulting in overall productivity gains </i> .</p>
<p style="text-align: justify; ">……..</p>
<p style="text-align: justify; ">Government procedures and regulations shrouded in the veil of secrecy do not allow the litigants to know how their cases are being handled. They shy away from questioning the officers handling their cases because of the latters snobbish attitude. Right to information should be guaranteed and needs to be given real substance. In this regard, the Government must assume a major responsibility and mobilize skills to ensure flow of information to citizens. <i>The traditional insistence on secrecy should be discarded.</i>"</p>
<p style="text-align: justify; ">Although these statements were made in the context of the RTI Act the principle which they try to illustrate can be understood as equally applicable to the field of state sponsored surveillance. Though Indian intelligence agencies are exempt from the RTI Act, it can be used to provide limited insight into the scope of governmental surveillance. This was demonstrated by the Software Freedom Law Centre, who discovered via RTI requests that approximately 7,500 - 9,000 interception orders are sent on a monthly basis.<a href="#_ftn5" name="_ftnref5">[5]</a></p>
<p style="text-align: justify; ">While it is true that transparency alone will not be able to eliminate the barriers to freedom of expression or harm to privacy resulting from overly broad surveillance,, transparency provides a window into the scope of current practices and additional measures are needed such as oversight and mechanisms for redress in cases of unlawful surveillance. Transparency offers a necessary first step, a foundation on which to examine current practices and contribute to a debate on human security and freedom.<a href="#_ftn6" name="_ftnref6">[6]</a></p>
<p style="text-align: justify; ">It is no secret that the current framework of surveillance in India is rife with malpractices of mass surveillance and instances of illegal surveillance. There have been a number of instances of illegal and/or unathorised surveillance in the past, the most scandalous and thus most well known is the incident where a woman IAS officer was placed under surveillance at the behest of Mr. Amit Shah who is currently the president of the ruling party in India purportedly on the instructions of the current prime minister Mr. Narendra Modi.<a href="#_ftn7" name="_ftnref7">[7]</a> There are also a number of instances of private individuals indulging in illegal interception and surveillance; in the year 2005, it was reported that Anurag Singh, a private detective, along with some associates, intercepted the telephonic conversations of former Samajwadi Party leader Amar Singh. They allegedly contacted political leaders and media houses for selling the tapped telephonic conversation records. The interception was allegedly carried out by stealing the genuine government letters and forging and fabricating them to obtain permission to tap Amar Singh's telephonic conversations. <a href="#_ftn8" name="_ftnref8">[8]</a> The same individual was also implicated for tapping the telephone of the current finance minister Mr. Arun Jaitely.<a href="#_ftn9" name="_ftnref9">[9]</a></p>
<p style="text-align: justify; ">It is therefore obvious that the status quo with regard to the surveillance mechanism in India needs to change, but this change has to be brought about in a manner so as to make state surveillance more accountable without compromising its effectiveness and addressing legitimate security concerns. Such changes cannot be brought about without an informed debate involving all stakeholders and actors associated with surveillance, however the basic minimum requirement for an "informed" debate is accurate and sufficient information about the subject matter of the debate. This information is severely lacking in the public domain when it comes to state surveillance activities - with most data points about state surveillance coming from news items or leaked information. Unless the state becomes more transparent and gives information about its surveillance activities and processes, an informed debate to challenge and strengthen the status quo for the betterment of all parties cannot be started.</p>
<h2 style="text-align: justify; ">Current State of Affairs</h2>
<p style="text-align: justify; ">Surveillance laws in India are extremely varied and have been in existence since the colonial times, remnants of which are still being utilized by the various State Police forces. However in this age of technology the most important tools for surveillance exist in the digital space and it is for this reason that this paper shall focus on an analysis of surveillance through interception of telecommunications traffic, whether by tracking voice calls or data. The interception of telecommunications actually takes place under two different statutes, the Telegraph Act, 1885 (which deals with interception of calls) as well as the Information Technology Act, 2000 (which deals with interception of data).</p>
<p style="text-align: justify; ">Currently, the telecom surveillance is done as per the procedure prescribed in the Rules under the relevant sections of the two statutes mentioned above, <i>viz. </i>Rule 419A of the Telegraph Rules, 1951 for surveillance under the Telegraph Act, 1885 and the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 for surveillance under the Information Technology Act, 2000. These Rules put in place various checks and balances and try to ensure that there is a paper trail for every interception request. <a href="#_ftn10" name="_ftnref10">[10]</a> The assumption is that the generation of a paper trail would reduce the number of unauthorized interception orders thus ensuring that the powers of interception are not misused. However, even though these checks and balances exist on paper as provided in the laws, there is not enough information in the public domain regarding the entire mechanism of interception for anyone to make a judgment on whether the system is working or not.</p>
<p style="text-align: justify; ">As mentioned earlier, currently the only sources of information on interception that are available in the public domain are through news reports and a handful of RTI requests which have been filed by various activists.<a href="#_ftn11" name="_ftnref11">[11]</a> The only other institutionalized source of information on surveillance in India is the various transparency reports brought out by companies such as Google, Yahoo, Facebook, etc.</p>
<p style="text-align: justify; ">Indeed, Google was the first major corporation to publish a transparency report in 2010 and has been updating its report ever since. The latest data that is available for Google is for the period between January, 2015 to June, 2015 and in that period Google and Youtube together received 3,087 requests for data which asked for information on 4,829 user accounts from the Indian Government. Out of these requests Google only supplied information for 44% of the requests.<a href="#_ftn12" name="_ftnref12">[12]</a> Although Google claims that they "review each request to make sure that it complies with both the spirit and the letter of the law, and we may refuse to produce information or try to narrow the request in some cases", it is not clear why Google rejected 56% of the requests. It may also be noted that the number of requests for information that Google received from India were the fifth highest amongst all the other countries on which information was given in the Transparency Report, after USA, Germany, France and the U.K.</p>
<p style="text-align: justify; ">Facebook's transparency report for the period between January, 2015 to June, 2015 reveals that Facebook received 5,115 requests from the Indian Government for 6,268 user accounts, out of which Facebook produced data in 45.32% of the cases.<a href="#_ftn13" name="_ftnref13">[13]</a> Facebook's transparency report claims that they respond to requests relating to criminal cases and "Each and every request we receive is checked for legal sufficiency and we reject or require greater specificity on requests that are overly broad or vague." However, even in Facebook's transparency report it is unclear why 55.68% of the requests were rejected.</p>
<p style="text-align: justify; ">The Yahoo transparency report also gives data from the period between January 1, 2015 to June 30, 2015 and reveals that Yahoo received 831 requests for data, which related to 1,184 user accounts from the Indian Government. The Yahoo report is a little more detailed and also reveals that 360 of the 831 requests were rejected by Yahoo, however no details are given as to why the requests were rejected. The report also specifies that in 63 cases, no data was found by Yahoo, in 249 cases only non content data<a href="#_ftn14" name="_ftnref14">[14]</a> was disclosed while in 159 cases content <a href="#_ftn15" name="_ftnref15">[15]</a> was disclosed. The Yahoo report also claims that "We carefully scrutinize each request to make sure that it complies with the law, and we push back on those requests that don't satisfy our rigorous standards."</p>
<p style="text-align: justify; ">While the Vodafone Transparency Report gives information regarding government requests for data in other jurisdictions, <a href="#_ftn16" name="_ftnref16">[16]</a> it does not give any information on government requests in India. This is because Vodafone interprets the provisions contained in Rule 25(4) of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 (Interception Rules) and Rule 11 of the IT (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009 as well as Rule 419A(19) of the Indian Telegraph Rules, 1954 which require service providers to maintain confidentiality/secrecy in matters relating to interception, as being a legal prohibition on Vodafone to reveal such information.</p>
<p style="text-align: justify; ">Apart from the four major companies discussed above, there are a large number of private corporations which have published transparency reports in order to acquire a sense of trustworthiness amongst their customers. Infact, the Ranking Digital Rights Project has been involved in ranking some of the biggest companies in the world on their commitment to accountability and has brought out the Ranking Digital Rights 2015 Corporate Accountability Index that has analysed a representative group of 16 companies "that collectively hold the power to shape the digital lives of billions of people across the globe".</p>
<h2 style="text-align: justify; ">Suggestions on Transparency</h2>
<p style="text-align: justify; ">It is clear from the discussions above, as well as a general overview of various news reports on the subject, that telecom surveillance in India is shrouded in secrecy and it appears that a large amount of illegal and unauthorized surveillance is taking place behind the protection of this veil of secrecy. If the status quo continues, then it is unlikely that any meaningful reforms would take place to bring about greater accountability in the area of telecom surveillance. It is imperative, for any sort of changes towards greater accountability to take place, that we have enough information about what exactly is happening and for that we need greater transparency since transparency is the first step towards greater accountability.</p>
<h3 style="text-align: justify; ">Transparency Reports</h3>
<p style="text-align: justify; ">In very simplistic terms transparency, in anything, can best be achieved by providing as much information about that thing as possible so that there are no secrets left. However, it would be naïve to say that all information about interception activities can be made public on the altar of the principle of transparency, but that does not mean that there should be no information at all on interception. One of the internationally accepted methods of bringing about transparency in interception mechanisms, which is increasingly being adopted by both the private sector as well as governments, is to publish Transparency Reports giving various details of interception while keeping security concerns in mind. The two types of transparency reports that we require in India and what that would entail is briefly discussed below:</p>
<p style="text-align: justify; "><i>By the Government</i></p>
<p style="text-align: justify; ">The problem with India's current regime for interception is that the entire mechanism appears more or less adequate on paper with enough checks and balances involved in it to prevent misuse of the allotted powers. However, because the entire process is veiled in secrecy, nobody knows exactly how good or how rotten the system has become and whether it is working to achieve its intended purposes. It is clear that the current system of interception and surveillance being followed by the government has some flaws, as can be gathered from the frequent news articles which talk about incidents of illegal surveillance. However, without any other official or more reliable sources of information regarding surveillance activities these anecdotal pieces of evidence are all we have to shape the debate regarding surveillance in India. It is only logical then that the debate around surveillance, which is informed by such sketchy and unreliable news reports will automatically be biased against the current mechanism since the newspapers would also only be interested in reporting the scandalous and the extraordinary incidents. For example, some argue that the government undertakes mass surveillance, while others argue that India only carries out targeted surveillance, but there is not enough information publicly available for a third party to support or argue against either claim. It is therefore necessary and highly recommended that the government start releasing a transparency report such as the one's brought out by the United States and the UK as mentioned above.</p>
<p style="text-align: justify; ">There is no need for a separate department or authority just to make the transparency report and this task could probably be performed in-house by any department, but considering the sector involved, it would perhaps be best if the Department of Telecommunications is given the responsibility to bring out a transparency report. These transparency reports should contain certain minimum amount of data for them to be an effective tool in informing the public discourse and debate regarding surveillance and interception. The report needs to strike a balance between providing enough information so that an informed analysis can be made of the effectiveness of the surveillance regime without providing so much information so as to make the surveillance activities ineffective. Below is a list of suggestions as to what kind of data/information such reports should contain:</p>
<ul style="text-align: justify; ">
<li>Reports should contain data regarding the number of interception orders that have been passed. This statistic would be extremely useful in determining how elaborate and how frequently the state indulges in interception activities. This information would be easily available since all interception orders have to be sent to the Review Committee set up under Rule 419A of the Telegraph Rules, 1954.</li>
<li>The Report should contain information on the procedural aspects of surveillance including the delegation of powers to different authorities and individuals, information on new surveillance schemes, etc. This information would also be available with the Ministry of Home Affairs since it is a Secretary or Joint Secretary level officer in the said Ministry which is supposed to authorize every order for interception.</li>
<li>The report should contain an aggregated list of reasons given by the authorities for ordering interception. This information would reveal whether the authorities are actually ensuring legal justification before issuing interception or are they just paying lip service to the rules to ensure a proper paper trail. Since every order of interception has to be in writing, the main reasons for interception can easily be gleaned from a perusal of the orders.</li>
<li>It should also reveal the percentage of cases where interception has actually found evidence of culpability or been successful in prevention of criminal activities. This one statistic would itself give a very good review of the effectiveness of the interception regime. Granted that this information may not be very easily obtainable, but it can be obtained with proper coordination with the police and other law enforcement agencies.</li>
<li>The report should also reveal the percentage of order that have been struck down by the Review Committee as not following the process envisaged under the various Rules. This would give a sense of how often the Rules are being flouted while issuing interception orders. This information can easily be obtained from the papers and minutes of the meetings of the Review Committee.</li>
<li>The report should also state the number of times the Review Committee has met in the period being reported upon. The Review Committee is an important check on the misuse of powers by the authorities and therefore it is important that the Review Committee carries out its activities in a diligent manner.</li>
</ul>
<p style="text-align: justify; ">It may be noted here that some provisions of the Telegraph Rules, 1954 especially sub-Rules 17 and 18 of Rule 419A as well as Rules 22, 23(1) and 25 of the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009 may need to be amended so as to make them compliant with the reporting mechanism proposed above.</p>
<p style="text-align: justify; "><i>By the Private Sector</i></p>
<p style="text-align: justify; ">We have already discussed above the transparency reports published by certain private companies. Suffice it to say that reports from private companies should give as much of the information discussed under government reports as possible and/or applicable, since they may not have a large amount of the information that is sought to be published in the government reports such as whether the interception was successful, the reasons for interception, etc. It is important to have ISPs provide such transparency reports as this will provide two different data points for information on interception and the very existence of these private reports may act as a check to ensure the veracity of the government transparency reports.</p>
<p style="text-align: justify; ">As in the case of government reports, for the transparency reports of the private sector to be effective, certain provisions of the Telegraph Rules, 1954 and the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009, viz. sub-Rules 14, 15 and 19 of Rule 419A of the Telegraph Rules, 1954 and Rules 20, 21, 23(1) and 25 of the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009.</p>
<h3 style="text-align: justify; ">Overhaul of the Review Committee</h3>
<p style="text-align: justify; ">The Review Committee which acts as a check on the misuse of powers by the competent authorities is a very important cog in the entire process. However, it is staffed entirely by the executive and does not have any members of any other background. Whilst it is probably impractical to have civilian members in the Review Committee which has access to potentially sensitive information, it is extremely essential that the Committee has wider representation from other sectors specially the judiciary. One or two members from the judiciary on the Review Committee would provide a greater check on the workings of the Committee as this would bring in representation from the judicial arm of the State so that the Review Committee does not remain a body manned purely by the executive branch. This could go some ways to ensure that the Committee does not just "rubber stamp" the orders of interception issued by the various competent authorities.</p>
<h2 style="text-align: justify; ">Conclusion</h2>
<p style="text-align: justify; ">It is not in dispute that there is a need for greater transparency in the government's surveillance activities in order to address the problems associated with illegal and unauthorised interceptions. This paper is not making the case that greater transparency in and by itself will be able to solve the problems that may be associated with the government's currency interception and surveillance regime, however it is not possible to address any problem unless we know the real extent of it. It is essential for an informed debate and discussion that the people participating in the discussion are "informed", i.e. they should have accurate and adequate information regarding the issues which are being discussed. The current state of the debate on interception is rife with individuals using illustrative and anecdotal evidence which, in the absence of any other evidence, they assume to be the norm.</p>
<p style="text-align: justify; ">A more transparent and forthcoming state machinery which regularly keeps its citizens abreast of the state of its surveillance regime would be likely to get better suggestions and perhaps less criticisms if it does come out that the checks and balances imposed in the regulations are actually making a difference to check unauthorized interceptions, and if not, then it is the right of the citizens to know about this and ask for reforms.</p>
<div style="text-align: justify; ">
<hr />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> James Losey, "Surveillance of Communications: A Legitimization Crisis and the Need for Transparency", <i>International Journal of Communication 9(2015)</i>, Feature 3450-3459, 2015.</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> <i>Id.</i></p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> Namit Sharma v. Union of India, <a href="http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=39566">http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=39566</a>.</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> <a href="http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=39566">http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=39566</a> . Although the judgment was overturned on review, however this observation quoted above would still hold as it has not been specifically overturned.</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> <a href="http://sflc.in/wp-content/uploads/2014/09/SFLC-FINAL-SURVEILLANCE-REPORT.pdf"> http://sflc.in/wp-content/uploads/2014/09/SFLC-FINAL-SURVEILLANCE-REPORT.pdf </a> .</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> James Losey, "Surveillance of Communications: A Legitimization Crisis and the Need for Transparency", <i>International Journal of Communication 9 (2015)</i>, Feature 3450-3459, 2015.</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> <a href="http://gulail.com/the-stalkers/">http://gulail.com/the-stalkers/</a> .</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> <a href="http://timesofindia.indiatimes.com/india/Amar-Singh-phone-tap-accused-tracked-Arun-Jaitleys-mobile/articleshow/18582508.cms"> http://timesofindia.indiatimes.com/india/Amar-Singh-phone-tap-accused-tracked-Arun-Jaitleys-mobile/articleshow/18582508.cms </a> .</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> <a href="http://ibnlive.in.com/news/arun-jaitley-phonetapping-case-all-accused-get-bail/394997-37-64.html"> http://ibnlive.in.com/news/arun-jaitley-phonetapping-case-all-accused-get-bail/394997-37-64.html </a> .</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> For a detailed discussion of the Rules of interception please see Policy Paper on Surveillance in India, by Vipul Kharbanda, <a href="http://cis-india.org/internet-governance/blog/policy-paper-on-surveillance-in-india"> http://cis-india.org/internet-governance/blog/policy-paper-on-surveillance-in-india </a> .</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> As an example please see <a href="http://cis-india.org/internet-governance/resources/rti-on-officials-and-agencies-authorized-to-intercept-telephone-messages-in-india"> http://cis-india.org/internet-governance/resources/rti-on-officials-and-agencies-authorized-to-intercept-telephone-messages-in-india </a> .</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> <a href="https://www.google.com/transparencyreport/userdatarequests/countries/"> https://www.google.com/transparencyreport/userdatarequests/countries/ </a> .</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> <a href="https://govtrequests.facebook.com/country/India/2015-H1/">https://govtrequests.facebook.com/country/India/2015-H1/</a> .</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> Non-content data (NCD) such as basic subscriber information including the information captured at the time of registration such as an alternate e-mail address, name, location, and IP address, login details, billing information, and other transactional information (e.g., "to," "from," and "date" fields from email headers).</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> Data that users create, communicate, and store on or through Yahoo. This could include words in a communication (e.g., Mail or Messenger), photos on Flickr, files uploaded, Yahoo Address Book entries, Yahoo Calendar event details, thoughts recorded in Yahoo Notepad or comments or posts on Yahoo Answers or any other Yahoo property.</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> <a href="https://www.vodafone.com/content/sustainabilityreport/2014/index/operating_responsibly/privacy_and_security/law_enforcement/country_by_country.html"> https://www.vodafone.com/content/sustainabilityreport/2014/index/operating_responsibly/privacy_and_security/law_enforcement/country_by_country.html </a> .</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/transparency-in-surveillance'>https://cis-india.org/internet-governance/blog/transparency-in-surveillance</a>
</p>
No publishervipulTransparencyInternet GovernanceSurveillance2016-01-23T15:11:18ZBlog Entry