[IOT] Status of ICANN staff in IOT

McAuley, David dmcauley at Verisign.com
Fri Dec 7 14:24:44 UTC 2018

Hello all,

Speaking as IOT lead, I will include a discussion of this issue on next Thursday’s call agenda. Thank you for putting your proposal in writing, Malcolm, and thanks all for sharing your thoughts.
Speaking as an IOT participant (and speaking personally here), I will be interested to hear ICANN Org’s thoughts on this given the discussion of what Göran said/meant in response to an “impromptu question.”
I have to say I find it surprising that members believe that procedural rules for a formal dispute resolution mechanism can be drawn up by the claimant side of the bar, to the complete exclusion of meaningful participation by the respondent side of the bar  (ICANN alone is guaranteed a seat as respondent in each and every IRP), and think that such rules pass muster under the bylaws requirement of fundamental fairness and dues process. 
And I am surprised as well that the composition of the IOT as directed by bylaws – i.e. comprised of members of the global Internet community -  could exclude ICANN in a participatory role especially when read in connection with other bylaw provisions such as the one I noted above, and in view of this common practice over many years.  ICANN appears to me to qualify as a member of the global Internet community, and I look forward to the discussion next Thursday. 

The agenda will be sent round by Tuesday and I encourage you all to dial in on Thursday at 19:00 UTC. 

Best regards,

David McAuley
Sr International Policy & Business Development Manager
Verisign Inc.

-----Original Message-----
From: IOT <iot-bounces at icann.org> On Behalf Of Malcolm Hutty
Sent: Thursday, December 06, 2018 7:48 AM
To: iot at icann.org
Subject: [EXTERNAL] [IOT] Status of ICANN staff in IOT

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
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