[IOT] Discussion thread #2

[Malcolm Hutty]

On 23/08/2016 16:40, Greg Shatan wrote:
>  >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.

We are constrained by the Articles, which say

       A “Claimant” is any legal or natural person, group, or entity
       including, but not limited to the EC, a Supporting Organization,
       or an Advisory Committee that has been materially affected by a
       Dispute. To be materially affected by a Dispute, the Claimant
       must suffer an injury or harm that is directly and causally
       connected to the alleged violation.

> But if we use it, it should only mean that the claimant is within the
> class of people to whom the action applies.

By which you mean "the claimant falls within the class of people to whom 
the action is indirectly addressed, and so might potentially be affected 
by it"?

i.e. where a policy speaks about a class of people who meet condition X, 
everyone in that class is deemed affected even if they are not actually 
harmed by it at that moment?

I'm not sure that is the standard we should follow. Consider how it will 
work out by example:

Suppose the policy says: Each year, each Registry will cancel the 
domains of 1000 registrants, drawn randomly from within those whose 
surnames begin with "S".

It seems we could adopt any of the following:

(a) Nobody can challenge this rule, because nobody's domain is suspended 
within 45 days.
(b) Everybody whose surname begins with "S" has 45 days to challenge the 
rule from the date of its adoption. If nobody does, then nobody has the 
right to challenge the rule ever again.
(c) Any person whose domain is cancelled or threatened with cancellation 
has 45 days to challenge the rule.


Note that in case (b), I don't have the right to challenge the rule, 
because my surname begins with 'H' not 'S'. If I subsequently change my 
surname so that I fall within the affected class, I will be affected by 
the policy without every having had the right to challenge it.

As I said previously, the CCWG Final Report sets out what this group is 
charged with doing. Our job is to implement it faithfully, not to make 
different, "better" choices. On this subject, the Final Report said

        Any person/group/entity “materially affected” by an ICANN action
        or inaction in violation of ICANN’s Articles of Incorporation
        and/or Bylaws shall have the right to file a complaint under the
        IRP and seek redress. They must do so within [number of days to
        be determined by the IRP Subgroup] days of becoming aware of the
        alleged violation and how it allegedly affects them.

I can't see that either (a) or (b) are consistent with this mandate.

>  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.


I don't think this is necessarily correct (although it may often be).

Malcolm.



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