[independent review] Independent Review

Mon Mar 16 14:59:38 UTC 2015

Any appointments would need to be made for a fixed term with no removal except for specified cause (corruption, misuse of position for personal use, etc.).

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

From: Robin Gross <robin at ipjustice.org<mailto:robin at ipjustice.org>>
Date: Sunday, March 15, 2015 at 1:46 PM
To: "wp2-independentreview at icann.org<mailto:wp2-independentreview at icann.org>" <wp2-independentreview at icann.org<mailto:wp2-independentreview at icann.org>>
Subject: Re: [independent review] Independent Review

That is one area where I think we'd want to differentiate ourselves a bit from the article because I do not think it is best that the CEO appoints members to this panel.  As this possible mechanism would serve as a "check" on the organization's activities as carried out through its CEO, there should be more safeguards of independence than the CEO appointments provides for our purposes.

Thanks,
Robin

On Mar 15, 2015, at 6:09 AM, Mathieu Weill wrote:

Dear Becky,

The paper is extremely interesting, and echoes many of our discussions within the CCWG. I think it would be worth circulating and adding to the "documentation" section of our wiki for future reference.

regarding the "constitutional court", I would suggest we give it a try through our agreed template to see how it would look like. I find the idea very promising.

I wonder whether I'd be comfortable with setting the appointment of members in the hands of the President and CEO in the case of Icann, since he (or she) is not elected or appointed by the community. But I think the "confirmation" procedure would be very useful.

Best
Mathieu

Le 14/03/2015 17:56, Robin Gross a écrit :
Interesting paper that could provide a basic framework for much of our work or at least some possible constructions to consider applying.  Thanks for forwarding it!

Best,
Robin

On Mar 14, 2015, at 9:21 AM, David W. Maher wrote:

Becky:
I agree with most of the approach in the Weber/Gunnarson article. In particular, I agree that their conception of a constitution closely parallels our Mission Statement and Core Values. Would the proposed constitution be an amendment to the ICANN charter?
2 further thoughts:

  1.  I am not convinced that a new Review Panel is necessarily better than a strengthening of the existing IRP, so that its mission is broader than that provided by the current bylaws, and its decisions are binding.
  2.  It is not clear how the proposed members of the corporation would be selected; the idea is a good one, but the selection process would be full of complex political issues.

David
David W. Maher
Senior Vice President – Law & Policy
Public Interest Registry
312 375 4849

From: Grace Abuhamad <grace.abuhamad at icann.org<mailto:grace.abuhamad at icann.org>>
Date: Friday, March 13, 2015 10:27 PM
To: "wp2-independentreview at icann.org<mailto:wp2-independentreview at icann.org>" <wp2-independentreview at icann.org<mailto:wp2-independentreview at icann.org>>, "wp2 at icann.org<mailto:wp2 at icann.org>" <wp2 at icann.org<mailto: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

-----

http://stlr.org/download/volumes/volume14/WeberGunnarson.pdf<https://urldefense.proofpoint.com/v2/url?u=http-3A__stlr.org_download_volumes_volume14_WeberGunnarson.pdf&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rncIYaxdd8_BhXk0mZQcYcYu0iFZAkhq927d_P1FmeU&s=NZgTaDRWhfrRp_5AfFTBt56t7RdJR2yTDOyCMtudM-4&e=>

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<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.americanbar.org_groups_committees_federal-5Fjudiciary.html&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rncIYaxdd8_BhXk0mZQcYcYu0iFZAkhq927d_P1FmeU&s=dX7uRLgzCbOAipR1HgTDRA0z_eAozlEjz3fF7VgKPBs&e=>
  *   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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--
*****************************
Mathieu WEILL
AFNIC - directeur général
Tél: +33 1 39 30 83 06
mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>
Twitter : @mathieuweill
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