[independent review] Independent Review

[McAuley, David]

Thanks Becky for sending the link and thanks as well to David Post, David Maher, Bruce Tonkin, and others who have weighed in on this so thoughtfully. .

Like some, I question the CEO selection provision for the review panel. But the good news, IMO, is that there seems to be widespread support for a review panel mechanism that takes on issues of substance as well as process - although the heavy lifting detail work lies ahead.

One particular detail that we will have to keep in mind is the potential cost of participating in a review panel - the ability to air a complaint within reasonable cost. The forum suggested in the article - made up of five "outstanding legal experts" who have a commensurate salary and office - sounds like an expensive bureaucracy in the formation stage and we need to be careful here.

And along with cost, we should also pay careful attention to limitations - disincentives to frivolous or inconsequential claims - a delicate balance to be struck.

David McAuley

From: wp2-independentreview-bounces at icann.org [mailto:wp2-independentreview-bounces at icann.org] On Behalf Of Grace Abuhamad
Sent: Saturday, March 14, 2015 12:28 AM
To: wp2-independentreview at icann.org; wp2 at icann.org
Subject: [independent review] FW: Independent Review

Dear all,
Becky's email was sent to the bounce list, so I'm resending on her behalf.
--Grace

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http://stlr.org/download/volumes/volume14/WeberGunnarson.pdf

I've provided a link, above, to an article written by Rolf Weber and Shawn Gunnarson in 2012 entitled "A Constitutional Solution for Internet Governance."  The authors call for the following reforms for ICANN:


  1.  A written charter:  A charter or constitution that restricts ICANN to actions that the community has already approved, distributes authority through law and requires it to be exercised through or under law; separates power appropriately; enumerates and constrains ICANN's powers; and establishes fundamental rights for those governed by ICANN - this corresponds, I think, to the Mission Statement and Core Values [Compact/Commitment, whatever] that we are working on.
  2.  Establish an independent constitutional court (the authors call it a Review Panel) with narrow powers to review ICANN actions and to reverse those actions if they are inconsistent with the written charter.  The authors propose that the panel consist of 5 highly regarded legal experts who:

     *    Have no relationship with ICANN that creates a conflict of interest
     *   Serve for a fixed term that cannot be shortened absent agreement by the community that the position is being used for personal gain
     *   Receive a guaranteed salary that cannot be reduced during the term.
With respect to selecting the members of the independent judiciary, they propose that the CEO would appoint the members subject to  approval by ICANN's "members."  This is similar to the way Supreme Court justices are selected in the US (nominated by the president and confirmed by the Senate) and I suspect in may other countries as well.

Questions -


  *   What do you think of this approach?
  *   Would/should a "constitutional court" of this type need to be in addition to a reformed independent review process conducted by arbitrators drawn from a standing panel?
  *   What credentials would the panelists need to have to be appointed?
  *   Should there be some sort of process for vetting nominees?  For example, the American Bar Association has a standing panel that reviews and rates judicial nominees.  http://www.americanbar.org/groups/committees/federal_judiciary.html
  *   Anything else?



J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz<http://www.neustar.biz>
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