[IOT] Discussion thread #2

Fri Aug 26 21:23:05 UTC 2016

I find myself close to David's line of thinking here.  Close enough not to
add more verbiage to the pile.

Greg

On Fri, Aug 26, 2016 at 10:00 AM, McAuley, David <dmcauley at verisign.com>
wrote:

> Becky, Malcolm, Greg, and all:
>
> Thank you for your inputs on this issue.
>
> I personally think that a limitations period of 45 days makes sense in
> cases where the claimant knew of the action and understood the harm. That
> is the easy part.
>
> As for other claims it is hard to settle on a limitation because we are
> balancing notions of fairness.
>
> As Malcolm points out, it would be unfair to close the IRP doors to
> claimants who simply did not sense the harm in time.
>
> In ICANN’s behalf, it seems unfair to allow claims years following an
> action where memories have faded, relevant staff may have moved on, and
> further actions (in reliance on the original, challenged action) may be
> incapable of unwinding.
>
> My suggestion is to (1) retain the 45 day cap where the claimant knew of
> the action and harm; (2) eliminate the concept of “should have known” and
> allow claimants to bring claims when they actually knew of the action AND
> consequent harm; (3) BUT within an overall time limitation - I see two
> years have been suggested and don’t quarrel with that. It could even be
> longer, perhaps.
>
> As for claims years/decades in the future where a claimant might be harmed
> due to its change in status, I disagree with Malcolm.
>
> Malcolm is right about the text in Annex 07 (…becoming aware of the
> alleged violation and how it allegedly affects them…), but I took the word
> “and” in this passage as simply a colloquialism - tying the word “affects”
> (present tense) to the awareness so that the two are meant to be
> contemporaneous.
>
> Moreover, had the CCWG WS1 intended to enable a claims period that could
> stretch a long and indefinite period of years I believe it would have
> generated considerable debate.
>
> I respectfully disagree with the idea of allowing the time period to be
> indefinite depending on claimants’ changing circumstances.
>
> David
>
> David McAuley
> International Policy Manager
> Verisign Inc.
> 703-948-4154
>
> -----Original Message-----
> From: iot-bounces at icann.org [mailto:iot-bounces at icann.org] On Behalf Of
> Malcolm Hutty
> Sent: Friday, August 26, 2016 6:09 AM
> To: Burr, Becky; Greg Shatan
> Cc: iot at icann.org
> Subject: Re: [IOT] Discussion thread #2
>
> On 23/08/2016 17:06, Burr, Becky wrote:
> > We have to have a standard that provides a reasonable opportunity for
> > redress without totally paralyzing ICANN and/or materially harming
> > other affected parties.
>
> You've got some fairly sweeping and unsubstantiated assumptions bound up
> in that sentence. I'll just note that I don't agree that we have to adopt
> the most restrictive possibly time-bar rules in all cases to avoid such
> catastrophic consequences.
>
> >  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.
>
> I wasn't suggesting that a delay should be permitted merely because they
> hadn't properly analysed the effect of information before them. I have
> little sympathy for a gTLD applicant who says "we didn't realise that this
> provision of the guidebook would bar our application" (although, of course,
> a complaint alleging ICANN's misapplication of the guidebook rule is
> another matter).
>
> I think your concern is best addressed by adopting an objective test of
> when the Claimant "became aware", that includes when "they ought reasonably
> to have become aware" that they were affected.
>
> This would allow the Panel reasonable (but not undue) flexibility to
> declare that certain types of dispute ought to be brought within 90 days of
> ICANN's action (because the Claimant ought reasonably to have been aware of
> it), while for others the clock starts later.
>
> In particular, it allows the Panel to start the clock later when the
> Claimant *could not possibly* have brought the action earlier. This is, I
> think, essential if we are to honour either the CCWG Final Report, or the
> Bylaws themselves (which state repeatedly that the IRP is intended to be a
> fair process).
>
>
>    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.
>
> I agree with the above, as it applies to the scenario Becky describes.
>
> > 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.
>
> Your hope for a "quick community challenge" isn't relevant to what the
> rules should be. Personally, I disagree; I am very pessimistic about the
> prospects for collective accountability action, and believe that by far the
> most important part of the CCWG reforms was the possibility of individual
> IRP challenge. But it doesn't matter which of us turns out to be correct:
> the CCWG Report and the Bylaws promise that both individual and collective
> redress are available, as complementary mechanisms.
>
> We must therefore suppose that, for whatever reason, the community has
> failed to bring a challenge, and ask ourselves, when do withdraw the
> opportunity for a Claimant to argue that the rule that affects them is
> contrary to the Bylaws?
>
> I believe the answer to this must surely be "within a defined period [X
> days] of when they were affected by it, and knew (or ought reasonably to
> have known) that this was so".
>
> This maintains consistency between the rules of standing and the rules of
> time barring. To set the time-bar rules over and above the standing rules
> would be to open up a loophole whereby a Claimant may never be eligible to
> bring a Dispute, because they did not have standing during the period when
> challenge was permitted, and only acquired standing when they were already
> time-barred.
>
> That cannot be right or fair, and I believe it would be inconsistent with
> our mandate.
>
> However, if you disagree, I think you must say so. I don't think you can
> simply prefer a formulation that would have that effect without
> acknowledging it.
>
>
>
> --
>              Malcolm Hutty | tel: +44 20 7645 3523
>     Head of Public Affairs | Read the LINX Public Affairs blog
>   London Internet Exchange | http://publicaffairs.linx.net/
>
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>
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