[IOT] Status of ICANN staff in IOT

Mike Rodenbaugh mike at rodenbaugh.com
Thu Dec 6 17:32:19 UTC 2018

Thank you Malcolm, I wholeheartedly agree that ICANN Legal has had far too
much input and 'weight' in this group, and that should never have been
allowed to have happened.  Frankly it calls into question all of the
'interim' conclusions that have been adopted by the Board already, which
should be revisited by a broader team from the community.  ICANN should
actually do some real outreach and get a representative cross-section of
knowledgable people on this team -- something they utterly failed to do at
the outset, and so the group has been far too sparsely populated and
attended, with the exception of ICANN Legal reps.

However I do wonder, am I also conflicted?  My client now has two CEP
processes pending (.PersianGulf and .Islam/halal).  As the legal
representative of a TLD applicant that has been fighting ICANN since 2012,
prevailing already in one IRP, I feel that I am one of the more
knowledgable community members wrt IRP.  I have not been very active in
this IOT, but have wanted to pay general attention to this group and I have
provided input at times.  The views I have expressed in the group have been
mine personally, not those of my client as I have not consulted with them
at all about this group's work.

Curious to hear anyone's thoughts on that.


Mike Rodenbaugh
tel/fax:  +1.415.738.8087

On Thu, Dec 6, 2018 at 4:48 AM Malcolm Hutty <malcolm at linx.net> wrote:

> 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
> output.
> 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
> expedience.
> Kind Regards,
> Malcolm Hutty.
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://publicaffairs.linx.net/
>                  London Internet Exchange Ltd
>            Monument Place, 24 Monument Street London EC3R 8AJ
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