[IOT] IOT - Regular meeting Tuesday January 19th, 2021 17:00 UTC

Tue Jan 19 16:31:45 UTC 2021

Thanks Chris
On our last call the feeling was that reading through every comment together on a call would not be a good use of time and that all members of the group would take as their homework to review the comment input, so that we can focus on those the group members find particularly notable.

Our reasons for reviewing the public comment input are twofold:

  1.  The public comment input from the second comment period, which relates just to this timing topic, was never reviewed by the former iteration of the IRP-IOT group.  We have a responsibility to those who commented, therefore, to have reviewed given genuine consideration to the feedback that this group sought from the community;
  2.  On one of our early calls on this topic there was some suggestion that we might be able to explore a more nuanced approach/compromise rather than a yes/no answer.  Some in the group, including you Chris, were of the opinion that Malcolm was a lone voice and wanted to be persuaded otherwise before they saw value in trying to find a compromise.  I believe the comment review is sheds valuable light in that regard.

Flip has confirmed he will be on the call and so we should be able to discuss his earlier email to the list (attached for convenience).  Unfortunately he could not join the last call and I did not feel comfortable speaking for him.  He does present an interesting viewpoint, I agree, but it is difficult to fully grasp from the email.

Look forward to speaking shortly.

Susan Payne
Head of Legal Policy
Com Laude | Valideus
D: +44 20 7421 8255
M: +44 7971 661175
E: susan.payne at comlaude.com<mailto:susan.payne at comlaude.com>

From: Chris Disspain <chris at disspain.uk>
Sent: 19 January 2021 15:57
To: Bernard Turcotte <turcotte.bernard at gmail.com>; Susan Payne <susan.payne at comlaude.com>
Cc: iot at icann.org
Subject: Re: [IOT] IOT - Regular meeting Tuesday January 19th, 2021 17:00 UTC

Greetings All,

I note that we have on our agenda the item of continuing our review and discussion on public comment on repose. If that is agreed as a useful way forward then so be it but I want to say a couple of things and thought it might be easier to put them in writing especially as I may arrive late to the call.

In essence I think we should be having a substantive discussion about Flip’s note from 7 December and the issue of IRP claims that a policy is ultra vires.

For me there is little to be gained by a close examination of the comments. Parsing them to ascertain exactly what they might or might not mean will not assist me or change my view. I have read them, understand them and completely respect that XX of them were against 12 month repose and agree with the removal of the 12 month repose in the second public comment.

My view is that the problem of when one can bring a claim and about what is a complicated one which is not solved by a yes or no answer. It’s more nuanced than that and I think Malcolm’ excellent examples are a useful tool to explain what I mean. I’ve attached Malcom's document here to assist.

Quoting from Scenario 1

"The ICANN Legal office advises that EduTania may bring an IRP case against ICANN for how it has chosen to implement the 5-by-5-by-5 programme in Ruritania, and whether it has complied with the original Board decision and established procedures. This may even extend to challenging the decision to select Ruritania as a target country in year 5. However, a challenge to the 5-by-5-by-5 programme itself is, ICANN Legal asserts, out of time: that needed to be brought within 120 days of the Board originally establishing the programme."

I have no problem with EduTania having the right to bring an IRP in respect to the introduction in Ruritania. In fact, I would have no problem even if they sought to bring a claim regarding their Ruritania issue 3 years after the scheme arrived in Ruritania provided they meet the time to file requirement. But I have a real issue with them being able to bring a community policy to an IRP and seek a declaration as to it being ultra vires 5 years after it has been implemented.

This for me is the crux of the issue and I believe that if the community were asked whether it should be possible for any person or organisation to bring such a claim, we would receive different responses from those in the previous public comment rounds.

If we believe that the fundamental basis of a policy duly arrived at by the community and duly implemented by ICANN should be open to question once it is operational then there should be a community based mechanism for the community to reconsider the policy. What should not happen is that an appointed panel is given the right to make a binding decision on that issue.

Unless I have misunderstood, I believe that the circumstances I have clumsily attempted to outline above sit at the centre of Flip’s suggested solution which I take to be, in laymen’s terms, repose should not apply where the remedy sought is ‘personal’ to the claimant but should apply where the remedy sought affects the whole community.

I believe this group has already acknowledged that some areas should not be the subject of IRP (delegation of TLDs being one if I remember correctly) so perhaps we could usefully pursue this.

Cheers,

Chris Disspain
chris at disspain.uk<mailto:chris at disspain.uk>

+44 7880 642456

On 18 Jan 2021, at 19:52, Bernard Turcotte <turcotte.bernard at gmail.com<mailto:turcotte.bernard at gmail.com>> wrote:

Proposed agenda;

1.Review agenda and updates to SOIs
2. Action items from the last meeting:

  *   All - review the public comment input from both public comment periods on the topic of the repose
  *   Staff – Prepare a scorecard to track progress vs major items.

3. Brief update on consolidation sub-group meeting.

4. Continue discussions on the time for filing issue:

  *   Review and discuss public comment input on the repose (prong 2) – IOT members should attend the meeting prepared to identify, for discussion, those comments that they consider to be meaningful n this topic
  *   Time permitting, begin discussion and review public comment input on time for filing from the date Claimant knew/ought reasonably to have known (prong 1)

5. AOB

6. Next Meeting  - Tuesday 2 February 1900 UTC

Bernard Turcotte

ICANN Support to the IOT

For

Susan Payne

Chair IOT

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