EFF: ICANN staff violated the Bylaws

The Electronic Frontier Foundation (EFF) wrote a letter to the ICANN Board Accountability Mechanisms Committee to address certain errors in the ICANN Ombudsman’s September 7, 2019 “Substantive Evaluation” of EFF’s Request for Reconsideration.

EFF claims that the Ombudsman’s Evaluation misstated EFF’s positions and had a fundamental misunderstanding of the issues. EFF asks the Committee to disregard the Ombudsman’s Evaluation and recommend to the Board that EFF’s Request for Reconsideration is granted.

Yes, EFF is talking about everybody’s favorite Ombudsman: Herb Waye. Possibly the worst Ombudsman in the history of Ombudsmans! The ICANN lackey that has forgotten what an Ombudsman does. Herb Waye is the ICANN Ombudsman that called our 3,200 .org comments SPAM!

Here are a few points EFF made in its letter to ICANN:

• The Ombudsman’s Evaluation does not acknowledge any of these points or the ICANN staff’s failure to respond to them.
• As for EFF’s procedural challenge, the Ombudsman’s response is logically incoherent and again fails to respond to the arguments EFF actually made.
• But whether the delegation of contracting authority to ICANN staff was novel or routine has no bearing on whether the staff exercised that authority to intrude on policy matters inappropriate for resolution through “bilateral negotiations” between a registry operator and ICANN staff, as EFF argues.
• In no sense does revising the .org registry agreement to add controver sial provisions that materially affect the rights and protections afforded to .org registrants and that were the subject of thousands of public comments constitute “staying the course”.

Cara Gagliano, EFF attorney, says at the end of the letter:

In sum, ICANN staff violated the Bylaws by making these important policy decisions on its own, without deference to the multistakeholder policy development process, without meaningfully responding to criticisms of its approach, and without determining whether its decision was in the public interest.

And by allowing the staff to proceed this way unchecked, the Board likewise failed to fulfill its obligations under the Bylaws — responsibility for which the Board cannot simply abdicate.

For these reasons, EFF respectfully asks the Board Accountability Mechanisms Committee to recommend that EFF’s Request for Reconsideration be granted.