[IOT] Discussion thread #2

[Burr, Becky]

We have to have a standard that provides a reasonable opportunity for redress without totally paralyzing ICANN and/or materially harming other affected parties.  The CCWG Final Report states that they must file within a specified period [TBD – we propose 45 days] after becoming “aware of the alleged violation and how it allegedly affects them.”  I do not think that the latter phrase can possibly be read to allow someone who is fully aware of an ICANN action to file an IRP complaint 2 years after the action because they have belatedly become aware that it might prevent them from doing something they want to do.  The suggestion of 24 months strikes me as way too long, particularly where IRPs often involve disputes that affect the rights of others (e.g., disputes about which of two contesting applicants should be allowed to operate a particular new gTLD).  In that case, the 45 day limitation should apply, and the losing applicant shouldn’t have a case 2 years later because they just learned of a new way in which they are affected.

On Malcolm’s case regarding a policy purporting to regulate content, I think the situation is a little bit different.  Any policy that actually regulates content on its face is going to be ultra vires, and I think we can expect either a community challenge or an affected registrant to come forward rather quickly to challenge that policy.  On the other hand, if ICANN begins interpreting an existing content neutral policy in a manner that regulates content, then it seems to me that each instance of enforcement is going to be a separate action in violation of the bylaws, and so once again, the 45 days ought to be enough for an individual registrant.




J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
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From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Tuesday, August 23, 2016 at 11:40 AM
To: Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>>
Cc: Becky Burr <becky.burr at neustar.biz<mailto:becky.burr at neustar.biz>>, "iot at icann.org<mailto:iot at icann.org>" <iot at icann.org<mailto:iot at icann.org>>
Subject: Re: [IOT] Discussion thread #2

 >The clock on time-barring their Dispute ought not to start until they are threatened with enforcement action under the policy.

I think that is an inappropriate interpretation of "affected by the action".  If that were the case, there would be no bar at all.

I'm not necessarily accepting the "Affected by the action" standard at all.

But if we use it, it should only mean that the claimant is within the class of people to whom the action applies.  In the example supplied, the Registrant would be affected by the action as soon as the action was taken, since they would be subject to the policy from the time it was adopted.

Greg

On Tue, Aug 23, 2016 at 6:10 AM, Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>> wrote:
On 22/08/2016 22:13, Burr, Becky wrote:

The draft Updated Supplementary Rules just circulated contains the
following:

    A CLAIMANT shall file a written statement of a DISPUTE with the ICDR
    no more than 45 days after a CLAIMANT becomes aware or reasonably
    should have been aware of the action or inaction giving rise to the
    DISPUTE or, where a CLAIMANT demonstrates to the satisfaction of the
    Panel that it was not aware of the action or inaction prior to the
    end of that 45 day period, no more than [X] months from the date of
    such action or inaction.



 The CCWG’s Final Report does not contemplate a “constructive knowledge”
standard, so it has been removed.

Becky,

Is this intended as responsive to the issue I raised in the thread "Time Bar", or as a separate issue?

If it is intended to address that problem, I'm afraid I don't believe this deletion resolves the issue. It would remain entirely possible that the Claimant was aware of the *action* giving rise to the dispute immediately, but was not affected by the action until much later.

A Claimant who becomes affected by an action should be able to challenge that action, provided they do so reasonably promptly on being affected by it, regardless of how much time has passed since the action.

For example, a Registrant should be able to challenge a policy that purported to regulate the content they could publish on servers they operate with an allegation that the policy is ultra vires. The clock on time-barring their Dispute ought not to start until they are threatened with enforcement action under the policy.

Malcolm.

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