[IOT] Notes on next meeting and repose and more

Mon Apr 30 16:09:51 UTC 2018

Dear members of the IRP IOT:

It has been a while since our last meeting, where I promised to delve into the archives to try to help sort out where we stand on 'Repose.'

My report on that is below under Repose.

But I also want to note the timing of our next meeting and make suggestions for moving forward, so this is a longer note than normal. It covers:

*       Next meeting schedule;
*       Status of rules work:

   *    Repose;
   *    Use of 'two-bucket' approach in order to release rules we have finished and use our 'Sidley' budget this FY;

*       Additional work beyond rules;
*       Considering the IOT team as we move forward.

Next IRP IOT meeting/teleconference:

Our next meeting is set for Thursday, May 3, at 19:00 UTC. In addition, Bernie is holding Thursdays May 10 and 17 at 19:00 UTC in case we need one or both.

Status of Rules Work:

First, with respect to Repose.

There are two facets to the Repose issue - first, should there be an overall time cap on filing claims irrespective of a claimant's knowledge as we posited in the draft rules<https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf> issued for public comment - what we have been calling Repose?  (Rule 4. Time for Filing.)

And, second, did we reach consensus on a determination that there should not be such a Repose?

With respect to consensus that there be no Repose, Malcolm pointed out in email<https://mm.icann.org/pipermail/iot/2018-February/000369.html> Feb. 22 that the set-up<https://mm.icann.org/pipermail/iot/2017-June/000252.html> of the meeting<https://community.icann.org/pages/viewpage.action?pageId=66061567&preview=/66061567/66080085/IRP-IOT_6-12-17%20ICANN%20IRP-IOT.pdf> on June 12, 2017, and the results of that meeting lead to the conclusion that we did have two readings and reach consensus on Repose - that consensus being that there be no Repose.

I don't quarrel with Malcolm's characterization - those statements appear to be correct and the meeting notes from June 12, 2017, bear that out. Nonetheless, I arrived at a different outcome during this recent review.

My concern about consensus is not unlike the discussion<https://community.icann.org/pages/viewpage.action?pageId=79430445&preview=/79430445/79436771/IRP-IOT%20MEETING_02222018_FINAL-en.pdf> we had about it this past February 22 when Sam mentioned making a minority statement and we got into the discussion of consensus that set this review in motion.

Yes, we had second reading in June of last year but the 'consensus' we reached was with extremely few voices speaking up. In that meeting we had five participants as attendees (I count Sam and Liz as one ICANN participant) and the previous record indicates that support for the no-repose was not unanimous and there was opposition.

When you couple that with the fact that the IOT has had more than a few participants who have for quite a while been inactive (out of the original 25, now 26 participants), it strains imagination, in my view, to call consensus on an idea that so radically shifts the rule we originally proposed to the community.

In my opinion, that determination of consensus was mistaken and for that I am responsible and apologize to this group.

So, what should we do about this?

I propose that we put the repose issue into a second 'bucket' - the bucket of rules that are not yet ready for release. This would be a de facto moratorium while the IOT does further work on the notion of repose.  It is likely that 'types of hearings' and 'elements of an IRP claim' will also be in this second bucket.  (With respect to timing of filing, and apart from the repose issue, I believe we have agreed that the time within which a claimant must bring the action is 120 days from when claimant knew or reasonably should have known of the action or inaction giving rise to the Dispute.)

And so, here is what I suggest to move forward.

First, that we send to Sidley and then release the rules we have finalized (the first 'bucket') - meaning all except for repose, types of hearings, and elements of a claim.

Second, that these latter three rules be under a moratorium - hopefully a short one - while  we work on them further.

It is my hope that we can finish off the rules with appropriate participation levels. To that end, on repose at least, I suggest that we state the two positions (no repose limitation on the one hand, and a repose limitation on the other (where we suggest a period of time)) on list with the rationales behind each, schedule a call for a discussion over it, and do our best to insist that members state a position by a certain date. We would note that lack of engagement equals abstention. We would thus be able to tally pro/con/ abstention in a clear manner. Whatever the outcome, minority statements would be welcome.

Following that, with the rules done, we could focus on remaining tasks and how best to address them as the IOT.

As you know, the IOT has a good deal of further work:

   a.   Review Annex D, section 4.2, to see if we need to take any action respecting EC-IRP;
   b.   CEP rules (note difference in language from IOT to 'with community involvement') (Section 4.3(e));
   c.   Recommend panel training - see 4.3(j)(i); tender see 4.3(j)(ii)(A); recall see 4.3(j)(iii).
   d.   Specialized PTI service-complaints rules (to pub comment) - section 4.3(n)(ii);
   e.   Treatment of ICANN non-response (see 4.3(n)(iv)(F) but also 4.3(g));
   f.   Rules for appeals (4.3(n)(iv)(G)) and see also 4.3(w) - all but non-response ones? Or default ones as well? Dismissals? Non-binding IRPs? (see 4.3(x)(iv));
   g.   Additional independence requirements - see 4.3(q)((i)(B) (and see our rule language already done);
   h.   Term limits and restrictions - see 4.3(q)(i)(B) and see 4.3(j)(iii);

   Best regards,

   David

   David McAuley

   Sr International Policy & Business Development Manager

   Verisign Inc.

   703-948-4154

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