[IOT] Use Case on Time for Filing IRP with an Outer Limit

Tue Mar 16 16:21:14 UTC 2021

Thanks very much Liz, this is very helpful.  Hopefully we can get further views on this approach during our call a little later today, and perhaps also consider Malcolm’s second stress test (on the UDRP expansion to DNS abuse).  Regarding this DNS Abuse example, based on Liz’s input below, it seems to me the domain name registrant would not be in a position to challenge the policy per se, because they would be out of time.  Where does an actionable act of ICANN Staff or Board arise with the exercise of a DRS by a third party provider that – the registrant contends – is contrary to the Bylaws?  Would this be in scope as a covered Action that “resulted from decisions of process-specific expert panels that are claimed to be inconsistent with the Articles of Incorporation or Bylaws?” Art 4.3(b)(A)(3).  I’m not sure that it would. But perhaps this is a circumstance where we should be exploring how to ensure the registrant knew (or ought to have known) earlier, before they were timed-out?

For everyone’s convenience I am attaching the two stress tests.  I am also attaching the short powerpoint of points for discussion from a couple of calls ago – although we have been discussing the issues on the first slide we will also need to consider the second slide.  Finally, again for convenience in case we need to refer, I am attaching the summary of public comment input on timing.

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: IOT <iot-bounces at icann.org> On Behalf Of Elizabeth Le via IOT
Sent: 10 March 2021 23:19
To: iot at icann.org
Subject: [IOT] Use Case on Time for Filing IRP with an Outer Limit

Dear IOT members,

During our last IOT discussion, ICANN org took an action item to provide in writing the use case on the time for filing an IRP with an outer time limit under the EduTania scenario (Scenario 1) set forth by Malcolm.  This example assumes that the current 120 day/1 year limitation is in place, though the timing could change based on the final outcomes of the IOT’s deliberation.

Though ICANN approved the program five years before, in that fifth year ICANN org implements the 5-by5-by5 program in Ruritania. That act of implementation is an ICANN staff action that could be challenged under IRP, assuming the claimant meets the other standing requirements.  Specifically, the claimant’s filing of an IRP would be considered timely (i.e., not capable of challenge on timing grounds) so long as it filed within 120 days after the claimant became aware of the material effect of action which is not more than 12 months from the date of the action (i.e., ICANN’s introduction of the program into Ruritania). The claimant, of course, has other procedural items it must fulfill, such as alleging the harm caused by the act and that ICANN’s act was outside of the Bylaws/mission, but those obligations exist separate from the timing issue.

As part of its timely IRP case, the claimant will be able to challenge the program and its implementation as applied to Ruritania.  So, while the claimant would be time barred from challenging the Board’s initial adoption of the program five years prior or potentially how the program was implemented in prior years (depending on the specific dates of roll-out), the claimant would not be time barred from challenging the year 5 implementation.  If there is Panel declaration in the claimant’s favor (i.e., that ICANN did in fact violate its Articles or Bylaws in the implementation), the ICANN Board would likely evaluate how that declaration impacts both the specific implementation of the program and well as the program as a whole.

This example demonstrates that there are many touch points along the way where an action may be taken by either the Board (the initial approval) or the org (new implementation action) that supports a claimant’s ability to act in a timely manner while challenging ICANN’s accountability.  Claimants can challenge ICANN’s actions without introducing time frames (or lack thereof) for challenges that diminish the certainty of ICANN’s actions. It also reduces the need to create new specific briefing processes to consider and weigh timeliness of claims, so that panels can more quickly proceed to the substantive merits.

Best regards,
Liz

-----
Elizabeth D. Le
Associate General Counsel | ICANN
Los Angeles, CA

________________________________
The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 15 William Street, South West Lane, Edinburgh, EH3 7LL Scotland;Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at Suite 332, Securities Building, 1904 Third Ave, Seattle, WA 98101; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/iot/attachments/20210316/37dd0739/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: IRP IOT Stress Tests.docx
Type: application/vnd.openxmlformats-officedocument.wordprocessingml.document
Size: 17491 bytes
Desc: IRP IOT Stress Tests.docx
URL: <http://mm.icann.org/pipermail/iot/attachments/20210316/37dd0739/IRPIOTStressTests-0001.docx>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Discussion - possible compromise on repose.pptx
Type: application/vnd.openxmlformats-officedocument.presentationml.presentation
Size: 45948 bytes
Desc: Discussion - possible compromise on repose.pptx
URL: <http://mm.icann.org/pipermail/iot/attachments/20210316/37dd0739/Discussion-possiblecompromiseonrepose-0001.pptx>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: IOT-ResultsofFirstPublicConsultation2016.xlsx
Type: application/vnd.openxmlformats-officedocument.spreadsheetml.sheet
Size: 17093 bytes
Desc: IOT-ResultsofFirstPublicConsultation2016.xlsx
URL: <http://mm.icann.org/pipermail/iot/attachments/20210316/37dd0739/IOT-ResultsofFirstPublicConsultation2016-0001.xlsx>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: IOT-ResultsofSecondPublicConsultation2018.xlsx
Type: application/vnd.openxmlformats-officedocument.spreadsheetml.sheet
Size: 32585 bytes
Desc: IOT-ResultsofSecondPublicConsultation2018.xlsx
URL: <http://mm.icann.org/pipermail/iot/attachments/20210316/37dd0739/IOT-ResultsofSecondPublicConsultation2018-0001.xlsx>