[CWG-Stewardship] FW: [client com] FW: [CCWG-ACCT] PTI and the IRP

Mon Jan 25 04:07:11 UTC 2016

Forwarding the email below to the general CWG-Stewardship mailing list.

From:  <cwg-client-bounces at icann.org> on behalf of Sharon Flanagan
<sflanagan at sidley.com>
Date:  Wednesday, January 20, 2016 at 9:07 PM
To:  Client Committee <cwg-client at icann.org>
Subject:  [client com] FW: [CCWG-ACCT] PTI and the IRP

Dear Client Committee,

We wanted to flag for you a recent discussion on the CCWG list serve
relating to the CWG requirement for an IRP process to cover PTI
actions/inactions.   The email chain is pasted below and includes input from
Greg and Avri.

Also, below is the language from the final CWG comment letter to CCWG on
this point. We believe the approach highlighted in yellow could be a
workable solution. 

³As we noted in our comment letter to the Second Draft Proposal, the Third
Draft Proposal does not explicitly address the CWG-Stewardship requirement
that an independent review process be available for claims relating to
actions or inactions of PTI. This requirement could be addressed in a number
of ways. For example, a provision could be added to the ICANN Bylaws that
would require ICANN to enforce its rights under the ICANN-PTI
Contract/Statement of Work (SOW), with a failure by ICANN to address a
material breach by PTI under the contract being grounds for an IRP process
by the Empowered Community (after engagement and escalation). Another
approach would be to expand and modify, as appropriate, the IRP process
currently contemplated by the Third Draft Proposal to cover claims relating
to actions or inactions of PTI, with the ICANN Bylaws and PTI governance
documents expressly confirming that the IRP process is binding on PTI (which
provisions would be Fundamental Bylaws that could not be amended without
community approval). Regardless of approach, the CWG-Stewardship requires
that this dependency be addressed in the final CCWG-Accountability proposal
in order for the CWG-Stewardship to confirm that the conditions of the
CWG-Stewardship final transition proposal have been adequately addressed.²

As counsel to CCWG, we have a call with Becky Burr  from CCWG on this topic
tomorrow.    If there is any additional guidance that CWG would like to
provide on this topic beyond what was included in the comment letter, could
you please let us know?

Best regards,
Holly and Sharon

SHARON FLANAGAN
Partner

Sidley Austin LLP
+1 415 772 1271
sflanagan at sidley.com

From:accountability-cross-community-bounces at icann.orgOn Behalf OfBurr, Becky
Sent: Wednesday, January 20, 2016 11:42:41 AM (UTC-08:00) Pacific Time (US &
Canada)
To: Schaefer, Brett; Greg Shatan; Avri Doria
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] PTI and the IRP

I am willing to address this issue either way here.  We just need
clarification from the CWG as to its preference.  Either we create a
stand-alone standard of review (in which case I need help articulating) or
we say (in the Bylaws) that ICANN is responsible for ensuring that PTI gets
it right, and allow challenges via the IRP on the basis of ICANN¹s actions
or inactions that fall below this standard.

J. Beckwith Burr
Neustar, Inc./Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office:+1.202.533.2932  Mobile:+1.202.352.6367 /neustar.biz
<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.biz&d=CwMF-
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Ry5DUdZh1uvw&e=> 

From: <Schaefer>, Brett <Brett.Schaefer at heritage.org>
Date: Wednesday, January 20, 2016 at 10:45 AM
To: Greg Shatan <gregshatanipc at gmail.com>, Avri Doria <avri at acm.org>
Cc: Accountability Community <accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] PTI and the IRP

I agree and would add that DIDP appeals, although they potentially could
involve a bylaws violation I suppose, would most often involve an
independent review via IRP of the original decision to ensure that it was
correct. 

It seems that the IRP is being stretched in the borrowing. At the very
least, there needs to be clarification that on how the IRP should handle
these matters if it is the proper vehicle and, if it is not, what exactly
should be created to handle these matters.

From:accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg
Shatan
Sent: Wednesday, January 20, 2016 12:36 AM
To: Avri Doria
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] PTI and the IRP

Avri,

I agree with your analysis and share your concern.  The PTI IRP is
fundamentally not a Bylaws issue (or more accurately -- fundamentally not a
"violation of the Bylaws" issue).

Having "borrowed" the IRP in an attempt to fill the requirements of the CWG,
we can't then pretend that the requirements of the CWG are coterminous with
the general design of the IRP.  The CWG's requirements will require a
specific statement of the basis on which a claim may be brought -- and it is
a different basis than for other IRP claims.  This doesn't have to be long,
but it does have to be right.

Conversely, if we are truly wedded to the idea that the IRP is a "bylaws
court" and nothing more, then it can't be used to satisfy the CWG's
requirement and we will need to do something else.  Personally, I don't
endorse this position (though it does raise some concern about the ability
of the panel to deal with PTI failures, if it is designed to be a bylaws
court.  That said, I have sufficient faith in the skill of experienced
arbitrators to be able to resolve a variety of disputes.)

Since this a requirement for the transition, we need to resolve this
crisply, explicitly and appropriately.

Greg

On Wed, Jan 20, 2016 at 12:25 AM, Avri Doria <avri at acm.org> wrote:
Hi,

I am uncomfortable with closing the discussion of the new principles for
the IRP.  Since we decided not to create a new entity to serve the
requirements of the CWG but rather to make it a function of the IRP, we
need to make sure that the basis for the IRP is fit for purpose before
starting on its implementation.

The CWG calls for:

> 1.            *Appeal mechanism*. An appeal mechanism, for example in
> the form of an Independent Review Panel, for issues relating to the
> IANA functions.  For example, direct customers with non-remediated
> issues or matters referred by ccNSO or GNSO after escalation by the
> CSC will have access to an Independent Review Panel. The appeal
> mechanism will not cover issues relating to ccTLD delegation and
> re-delegation, which mechanism is to be developed by the ccTLD
> community post-transition.
>

I do not see how to define this function in terms of By Laws alone as By
Laws have little to say about negotiated SLAs and the  customers' or CSC
complaints.  Perhaps it can be done by changes to some of the By Laws,
but I do not see us as having scoped out what those changes need to be.

So until such time as we have dealt the the policy issues of filling the
CWG's requirements, I would like to register a personal caution, and
thus an objection, to closing the discussion of the basis and standing
for IRP appeals.  I do not believe this is merely an implementation
issue.  At least not yet.

avri

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BrettSchaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security
and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097
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