[IOT] IOT - Agenda for 1 December call 19:00 UTC

[Malcolm Hutty]

Chris,

Thank you for this message, which certainly does illustrate our very
different views of the purpose of the IRP.

> I think the examples provided by Malcolm are instructive because
> they get to the very core of why I am so uncomfortable with a
> situation where there is no repose. The argument put forward seems to
> be built on the premise that all decisions be they policy,
> implementation of policy or day to day administration should be, for
> all time, open to ‘question’ using ICANN’s internal accountability
> mechanisms provided only that the ‘claimant’ can show that they have
> been harmed and have acted within 120 days of becoming aware of the
> harm.
> 

"Open to question" only on the very limited grounds provided for in
Article 4, namely that they are inconsistent with the bylaws, and only
with the very limited remedy provided in Article 4, namely a declaration
of such inconsistency. With those caveats, yes, that states my
understanding of what the Bylaws require.

Incidentally, this right to bring a challenge is not in itself any great
burden. The Board of ICANN is always under a continuing duty to ensure
that ICANN acts in a manner consistent with its bylaws. That is where
the burden really lies. The Board has this duty regardless of any
adverse finding by the IRP.

The IRP is not the only means by which the Board may be persuaded to
acknowledge ICANN is acting inconsistently with the Bylaws. It may
discover that for itself (remember, we are not only concerned with
breaches of the Bylaws through the Board's direct action, but with any
action ICANN may take that is inconsistent with the requirements of the
Bylaws. Accordingly, it is quite possible that the Board may discover a
wrongful behaviour elsewhere within ICANN of its own initiative).
Alternatively, the Board may discover such a breach because it was be
pointed out by some witness, perhaps a staffer or a member of the
community. It is also possible that a newly elected Board member will
take up such a cause, and convince the Board that ICANN is acting
inconsistently with the Bylaws in some manner.

Once the Board has acknowledged that this is indeed the case, the Board
then has a clear duty to bring ICANN back into compliance. Quite what
the Board might expect to do in respect of wholly historical breaches I
do not know: I think it will depend on the circumstances. In some cases,
an offer of remedy to a harmed party might be appropriate. In others,
merely taking steps to assure that this does not happen again is likely
to suffice. There may be other alternatives, and what they are is a
matter for the Board to decide.

However, if the Board decides that some past action, however long ago,
means that ICANN is in breach of its own bylaws on a continuing basis,
it is under a clear and undeniable duty to bring ICANN back into compliance.

This step is what you are having difficulty with: the duty to take
corrective action so as to ensure current adherence to the Bylaws.
And it does not arise out of the IRP, much less the timing of IRP cases:
it arises out of ICANN's commitment to be a rules-based organisation
that honours its Bylaws (For all I know, this duty separately be imposed
by operation of California or US Federal law. But whether it is or not,
ICANN has so undertaken).

So we have arrived at the point where your concern lies without even
reaching the IRP. The only thing special about the IRP in relation to
the above is that the IRP uniquely has the right to state
authoritatively whether ICANN is in breach of its Bylaws, potentially
triggering that duty to take corrective action, even if the Board
disagrees with the IRP's interpretation of the bylaws.

But someone must have the authority to interpret the Bylaws. Even if the
IRP did not exist, the Board would have to do so itself. And it would
have to do so on a continuing basis, at least in respect of any issue
with a continuing effect, such as the example you have given, as well as
the examples I gave last week.


> I appreciate that the bylaws do not say that there should be repose 
> but they also do not say that there should not be.

I must disagree with the suggestion your statement carries, and I have
two separate and independent grounds.

Firstly, as a matter of construction. I believe that the only reasonable
way of to understand a power delegated to us to impose a deadline based
on certain specified criteria is to interpret those as the criteria on
which the deadline must be based, and no other. If the Bylaws intended
us to have a broad discretion they would not have provided limiting
text. That is an ordinary principle of construction.

We have been instructed to set a deadline for filing based on the time
"after a Claimant becomes aware or reasonably should have become aware
of the action or inaction giving rise to the Dispute". It is not open to
us to set another earlier deadline, based on other criteria.

Secondly, I disagree with the implied claim as to the scope of our
powers. Your statement implies that the bylaws empower us to amend or
circumscribe access to the IRP in any manner not explicitly prohibited
to us. The Bylaws promise access to the IRP to any claimant who meets
the specified criteria. I do not think it can be right to say we have
the power to add further limiting criteria merely because we wish it.
Nor do I think that had the Bylaws intended to prevent us doing so they
needed to foresee and explicitly prohibit each such instance of our
overreach. Instead, I think this committee has a modest role, simply to
implement rules of procedure that give effect to and support the
procedures and principles established in the Bylaws. It is not our role
to substitute our view for that set out in the bylaws, nor even to
add to the Bylaws in ways we might consider beneficial. Our role
is the more modest one of implementing the Bylaws, by filling out the
rules of procedure in the manner that most faithfully reflects what the
Bylaws require.

> I acknowledge that the new bylaws do significantly extend the IRP and
> I am not suggesting that an IRP panel cannot be asked to rule on the
> question of acting outside the limited mission. BUT I am arguing that
> to allow ICANN’s internal accountability mechanisms to be used at any
> time in the future by parties who may not even have existed at the
> time the decision was made would fundamentally undermine and 
> disenfranchise the ICANN community and it’s role and is not what the
>  accountability mechanisms are intended to be for.

You may think this, and I may disagree, but in my view the time for that
discussion was during CCWG-Accountability. We must deal with the bylaws
as they are, not as you would wish them to be.

Let me now move past my general objections to your position, to the
example you have helpfully provided. Firstly, I thank you for taking the
trouble to write this. Clear examples like this do indeed provide a
useful focus.

> 
> BUT, should it be possible 5 years from now for a newly formed 
> streaming market disruptor, whose business model is handicapped by 
> the lack of corporate registrant information, to bring a claim of 
> ultra vires using ICANN’s internal accountability mechanisms? I don’t
> believe it should.


> An IRP panel can only make a finding that something is or is not 
> outside of mission and the consequent steps are then up to the 
> Board.

This sentence we agree upon.

> In such circumstance it is difficult to see how the board can do 
> anything but untie the policy with all of the corresponding chaos 
> that could cause.

There is actually an apparent inconsistency between this statement, and
what you go on to say below, where you claim that a court could craft
another remedy. If a court could craft an alternative remedy, so could
the Board.

That said, I think we agree that the Board would feel obligated to
revoke a policy that was held to be ultra vires. But consider why we
think that: the Board would have no choice precisely because the Board
is under a continuing duty not to continue in error, once that error is
acknowledged. The Board, I think we agree, recognises that it does
indeed have that as a continuing duty: that is the basis on which we
both expect that in those circumstances the Board would have no choice
but to revoke such a policy.

So what is the difference between us, really?

I suggest it that when you say it would be better for the Board not to
be faced with such a declaration, that can only be so that it can
continue in ignorance of its error, perpetuating a misbehaviour that we
agree it would have a duty to correct, if only it recognised that it erred.

That cannot be correct. It is, in my view, the very antithesis of the
concept of accountability.

While I think that is conclusive, respect for your kind contribution of
specific consequences compels me to address them in turn.

You provide several points of distinction between the IRP and a court.

You state

> A court is an external independent venue where personnel are not 
> appointed by an ICANN mechanism and not subject to re-appointment or 
> changes in structure following bylaw reviews.

This is true (let's not quibble over whether the Independent Review
Process can fairly be said to be not really independent) but I don't see
the relevance. Is it to question faith in the IRP process altogether?

> A court has clear rules of procedure and evidentiary standards, and 
> mechanisms for challenge if those are not followed.

It *is* our job to provide these for IRP, as well as we are able. And to
the extent that we initially fall short, these can be improved later -
just as they are continually improved for actual courts.

> A court can make a finding that something was outside of mission but
>  award damages instead of ordering an untying of the policy. It could
>  even make a finding of technical breach of bylaws and award token 
> damages. An IRP panel can do none of those things.

That is also true. However, surely the fact that the IRP has such
limited powers makes it more safe, rather than less, to make it widely
available? I believe that was what you argued in the CCWG, when you took
the position that it was very important that the IRP not be granted a
broader range of remedies.


> To allow such claims through an IRP not only undermine the ICANN 
> community and its policy development mechanisms, it throws open the 
> doors to gaming the system at an epic level. New entrants to any 
> market that is dependent on or effected by the DNS would be able to 
> bring claims at any time.

No, that is not correct. They would have to become directly harmed by
the thing complained of, and would have to bring that claim promptly.

Importantly, it wouldn't be sufficient to allege some general harm, and
then to attack some unrelated aspect of ICANN's activities. They would
have to show a clear nexus between the harm that is done to them and the
alleged breach of the bylaws. Absent this, they would lack standing as a
claimant.

> It would even be possible to specifically manufacture circumstances 
> that created a claim.

I do not think this will usually as easy as you think, for the reason
above. I do acknowledge that for some types of breach, such as the one
in your example, it would indeed be easy to manufacture such a claim.
However, that is only because the harm that is done is so widespread
that almost anyone may suffer it. To that I would say two things:
firstly, that if it is so easy to incur the harm, then it is all the
more important that it be corrected. Secondly, there is not likely to be
a need to manufacture a case: we are much more likely to be in the
position of needing to consolidate a large number of "naturally"
aggrieved parties.

> On this score it is important to note that significant damage can be
>  done merely by the bringing of a claim even if, in the end, it is 
> without merit or unsuccessful.

It is true that litigation can be both expensive and distracting. But
that again is an argument against the IRP generally. We are taking steps
to limit the costs as much as we reasonably can though multiple
measures. Moreover, the Bylaws take much more aggressive steps, ones
that would be quite beyond our authority to add on our own initiative.

An important example is the power to summarily dismiss any case the IRP
Panel considers frivolous or vexatious. This provides a very
considerable limit on access to the IRP - a necessary one in my view,
but one nonetheless which means a case will not get a full hearing, and
so which poses some residual risk a meritorious case might never be
heard. That is a concession the Bylaws make to balance the consideration
you raise. So the concern you raise is not new, nor has it been brushed
aside: instead, it was answered and decided by the proper process, which
was the CCWG process through to adoption of the Byawls.

Finally, you say
> The Board is able to budget for and time decisions based on a clear 
> understanding that the ICANN community has the right to use 
> accountability mechanisms within certain time frames. To allow 
> ‘strangers’ to come along at any time in the future and use those 
> mechanisms introduces a level of uncertainty that makes corporate 
> governance and operating within one’s fiduciary duty or 
> responsibility impossible.

Once again, whatever the merits of this position, it is not about the
appropriate filing deadline for a claim, which is the topic we are
supposed to be discussing. Instead, you are making an attack on the
promise in the bylaws that the IRP be open to any claimant who is
materially affected by an alleged breach of the bylaws, and a suggestion
that this should revert to the previous position, where the IRP was
effectively limited to contracted parties and a few others.

This committee is not the place for that argument: CCWG-Accountability
was the appropriate place where this was fully aired, and a community
consensus achieved. That decision was scrutinised by multiple layers of
oversight including the ICG, the ICANN Board and the US government. In
short, the multistakeholder community did everything it could to invest
the transition proposal, of which this forms an integral part, with
every ounce of legitimacy the multistakeholder model can muster.

It would be gross misuse of the function that has been entrusted to us
to use the deadline for filing as a mechanism to attempt to subvert that
decision. If we were successful in so doing, I think we would critically
undermine confidence in the multistakeholder model itself.

Regards,

Malcolm.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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