[IOT] Status of ICANN staff in IOT

Malcolm Hutty malcolm at linx.net
Thu Dec 6 12:47:55 UTC 2018

Dear David,

I write to confirm for the written record my request as raised in our
last meeting.

When this group was formed, you took the extraordinary step of including
ICANN staff and external counsel as full members of this group:

- they are listed as full participants on the group membership page
- they are included in quorum counts
- they are invited to speak on all issues on an equal basis: that is,
not merely to describe the practical effects of matters proposed, but
also to opine on the balance of values
- they are included in consensus calls

In the Board resolution in Barcelona adopting the Interim Supplementary
Rules, the Board resolved to urge this group to come to a prompt
conclusion on final Supplementary Rules of Procedure.

During the Open Forum session, I offered the Board my opinion that we
would have completed our work earlier had we not been so split, as a
result of the divergent views of the team from ICANN Legal and Jones
Day. I asked whether it was normal for ICANN staff and agents to engage
in community processes like this one as full participants, and whether
there was guidance available.

Göran answered my question on behalf of the Board. He stated very
clearly and firmly that staff "are not members of the community" and
participate as staff support, not a co-participants. He appeared to me
to be angry that I was even suggesting that staff would overstep such
bounds, and that he had to defend them from such an accusation which he
gave every impression as regarding as an unfair accusation of
impropriety. He was plainly unaware of your decision.

In the light of this response, I request that we revisit the
classification of ICANN staff and Jones Day.

In my view, it was never proper to regard ICANN Legal and Jones Day as
co-equal participants in this group. The matter under discussion is the
procedures that apply in a core process for holding ICANN to account:
ICANN is plainly irredeemably conflicted.

Moreover, the conflict goes beyond the institutional to the personal. An
IRP case can only be brought on the basis that ICANN has acted
inconsistently with the Bylaws. Usually, ICANN will have taken the
advice of its lawyers before acting in a manner that might give rise to
such a claim. Accordingly, an IRP case will quite commonly be a direct
challenge to the advice that Samantha, Elizabeth and the team have
previously given, personally. It is quite wrong to involve them in
directly in the decision-making as to how such a challenge can be
brought. This is not to impugn their professional integrity: any lawyer
would recognise this as an irreconcilable conflict of interests and
obligations. Your decision places them in an impossible and untenable
position, that fundamentally compromises the legitimacy of this group's

Now that Göran has confirmed that staff should not be regarded as
members of the community for the purpose of participation in community
processes, I ask that their status be reclassified as staff support,
with the following consequences:

- they will not be counted in quorum counts
- they will not be included in consensus calls
- they will be permitted to attend meetings, and their input sought on
factual matters, such as how procedures operate, where that assists the
group, but their opinion will be not be sought as to the balance of

Kind Regards,

Malcolm Hutty.

            Malcolm Hutty | tel: +44 20 7645 3523
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