[AT-Review] Draft - next version

Fiona Alexander FAlexander at ntia.doc.gov
Thu Oct 21 15:14:40 UTC 2010


For ease of version control of the document, we've talked with Brian about some suggested revisions to address the concerns below and will await the next version of the document from Brian.

Fiona

From: at-review-bounces at icann.org [mailto:at-review-bounces at icann.org] On Behalf Of Larry Strickling
Sent: Wednesday, October 20, 2010 6:25 PM
To: briancute at afilias.info; at-review at icann.org; ugasser at cyber.law.harvard.edu; 'Caroline Nolan'; rfaris at cyber.law.harvard.edu
Subject: Re: [AT-Review] Draft - next version
Importance: High

Brian,

I still have a lot of issues with respect to the findings and recommendations of Working Group 4.  Some material that I thought was going to be excised or rewritten has remained in the text.  So here are my comments/objections.  But so that I just do not raise objections we (or rather Fiona) are preparing a red-line to deal with my concerns as well as some organizational issues we have with the current draft.

Findings and Recommendations

I assume these paragraphs represent findings of the ATRT.  If so, I do not agree with the finding that the ATRT is concerned that "none of the three accountability mechanisms can review and potentially reverse ICANN decisions with binding authority."  I agree that others have raised this issue in comments but I do not believe it is the consensus view of the review team.  Plus I do not understand why we would make that our primary factual finding when the remaining paragraphs in the section focus more on whether the various review mechanisms are independent of the Board.  If this paragraph is reworded to say that the ATRT heard concerns of this nature, I would have no objection provided that language is added to indicate that we also heard that having such a mechanism would create a new set of accountability and transparency issues by assigning to some new, unnamed set of individuals the power to overturn Board decisions.

In the same section, I cannot agree with the characterization of the standard for reconsideration requests as being "exceedingly difficult" to satisfy.  The Bylaws contain a very reasonable standard in terms of seeking reconsideration of a Board decision and do not agree that a looser standard would allow more "meaningful" review of Board actions.  Similarly, I cannot subscribe to the idea in the next paragraph that because IRP decisions are non-binding, "there is no true accountability for the ICANN Board."  My view, as articulated in Cambridge, is that creating a binding review process reduces the accountability of the Board and does not enhance it.  Again, I do not mind if both competing views are expressed but as currently drafted, I dissent from the findings.

In the recommendations section, I do not agree to direct the Board to change the grounds upon which a Reconsideration request is brought to something "less restrictive," particularly if we ourselves are unable to suggest a new standard.

In the second IRP paragraph, I do not necessarily agree that the Board must "improve accessibility [of the IRP process] to the community."  As we have discussed, the overall set of review mechanisms in the Bylaws provide a graduated set of options for anyone aggrieved by a Board decision.  The easiest to invoke is the ombudsman (and I agree with recommendation to improve the independence of  the ombudsman), then one can seek reconsideration if there was  a flaw or deficit in the information considered by the Board in reaching a decision.  Third is the IRP, which should be the toughest remedy available.  I think we should not disturb this basic taxonomy of remedies which we do threaten by trying to make each remedy equally easy for an aggrieved party to use.

In the third IRP paragraph, I thought the majority view was not to propose an IRP light.

Community Revote.  Since we have spent no time discussing this option in any substantive way, I object to the finding that we have "doubts whether community revote would be effective given the extraordinarily high level of consensus required to re-examine a Board decision."  I'm not saying I believe a revote is a good idea-only that I do not know enough about it to have an opinion one way or the other.

I agree with Fabio's suggestion earlier today to move the legal discussion earlier in the document but again, we need to state that the issue here is primarily a policy judgment and that there is difference of views within the ATRT as to whether off-loading Board decisions to a new, undefined review panel increases or decreases Board accountability and whether to do so will just create a new set of A/T issues with respect to the review panel.

Larry



From: at-review-bounces at icann.org [mailto:at-review-bounces at icann.org] On Behalf Of Brian Cute
Sent: Wednesday, October 20, 2010 12:48 AM
To: at-review at icann.org; ugasser at cyber.law.harvard.edu; 'Caroline Nolan'; rfaris at cyber.law.harvard.edu
Subject: [AT-Review] Draft - next version

RT,

Attached is the next version of the draft which incorporates our discussion from the call yesterday.  Please note and review the following changes:

Berkman statement of methodology - p.3
Revised description of PPC activities - p. 29
Corrected quote from public comment - pp. 29-30
Cheryl's definition of Cross Community deliberation - p. 29
WG3 Findings - p. 31
WG3 revised recommendation #8 - p.32
WG3 revised recommendation #9 - p.33
WG4 - please read in entirety.  Substantial edits provided by Chris.
ATRT RFI to ICANN Staff - text from Staff response - p.37-39
California law summary (reviewed and edited by Berkman) - p.42-43

One point from our call that is not yet addressed in the draft is Larry's point concerning the IRP undertaking de novo review.  Please offer language for inclusion.

Note that I will do further editing to address grammar, style, structure and citations.  If anyone has edits to suggest on this front please send them to me.

Regards,
Brian
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mm.icann.org/pipermail/at-review/attachments/20101021/67ec38d3/attachment.html 


More information about the AT-Review mailing list