ICANN chair Maarten Botterman has denied that the board of directors approved the removal of price caps in .org, .biz and .info in “secret” meetings in 2019.
In written testimony (pdf) recently filed as part of Namecheap’s two-year-old Independent Review Process proceeding, Botterman scoffed at the idea that ICANN secretly gave the nod to the removal of price caps in 2019:
I understand that Namecheap is claiming that the Board acted in secret when deciding to go forward with the 2019 Registry Agreements. Nothing about the Board’s conduct occurred in secret. The Board did not convene a “secret” annual, regular, or special Board meeting and did not make any “secret” formal decisions or “secret” resolutions. Instead, the Board was briefed by ICANN staff regarding contract renewals that were well within their delegated authority to negotiate and execute.
Namecheap is claiming in its IRP that ICANN broke its bylaws when it renewed the .org, .info and .biz contracts without the historical price caps that all three had in place for the better part of 20 years.
It wants those decisions annulled, potentially enabling the reinstatement of the caps.
Part of its case is that ICANN failed in its transparency obligations, with Namecheap saying that the decision to remove caps was “entirely opaque” and made with “no analysis whatsoever”.
The .info, .org and .biz contracts were renewed without the ICANN board making a formal resolution or discussing them during a session that was being recorded and minuted.
Botterman, along with declarations from with fellow director Becky Burr and VP Russ Weinstein and outside lawyers’ filings, says that the extent of the board’s involvement was two briefings that occurred at workshops in January and June 2019.
ICANN staff explained to the board why it intended to go ahead with signing the cap-free contracts, and the board “saw no reason to intervene”, Botterman wrote. Staff have delegated authority to deal with contract stuff, he said.
Now, it could be argued that these meetings were not “secret” as such — ICANN board workshops are a standard event, happening in the few days leading up to each of ICANN’s thrice-yearly public meetings.
ICANN’s chair (then Cherine Chalaby) even blogs about them, posting a rough agenda beforehand and a summary of discussions a few weeks later.
The June 2019 post-workshop post fails to mention the fact that the board had essentially given the nod to the lifting of caps at that meeting.
The pre-workshop post makes a passing, blink-and-you’ll-miss-it reference to “Göran will update the Board on the renewal of some registry agreements”, which substantially played down what was actually going on.
At that time, ICANN was well-aware that there was huge public interest in at least the .org renewal, where over 3,300 comments had been submitted, mostly objecting to the removal of price caps.
It’s possible that the first time ICANN disclosed that the discussions had even taken place was when a spokesperson told me how the .org decision was made, in July that year.
You don’t have to be a conspiracy theorist to wonder why ICANN pretty much skimmed over the whole issue in its public disclosures, even though it was the hottest topic in town at the time.
Even now, Botterman and Burr are both invoking attorney-client privilege to limit their testimony about what happened at these two workshops.
You don’t have to think anything untoward was going on to ask whether this is all paints a picture of ICANN acting “to the maximum extent feasible in an open and transparent manner”, as its bylaws requires.
Botterman says in his declaration:
The Bylaws are clear that ICANN must “operate to the maximum extent feasible in an open and transparent manner.” But I have never understood this Bylaws provision to require that every time the Board needs to get work done, or every time the Board receives a briefing from ICANN staff on a specific topic, it must do so in public or at a annual, regular or special Board meeting. Nor would such a requirement be feasible.
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