[independent review] Comments for Sunday's meeting in Istanbul

Fri Mar 20 19:25:53 UTC 2015

Hi Becky,

I have some comments/questions/suggestions for the discussion Sunday in case there is no remote participation option. Thanks to you and others who built the latest matrix. These comments below are in my personal capacity.

I think that existing review/redress mechanisms could be enhanced and made adequate for the future – and don’t presently see the need for a “constitutional court.”

Otherwise, here are my thoughts:

Ombudsman:

This office can address modest complaints, but might need more “heft.”

One way to bump up its standing in the community as well as its impact might be to let the Ombudsman file a formal written report on a complaint to which the board would have to file a written response accepting or rejecting the Ombudsman’s suggestion. The Ombudsman would not need to issue such a report in each case, and could summarily deal with issues as it deems appropriate. And the board’s action could be brief, but it would be visible action. This might be an acceptable “vent” for minor issues that gets enough consideration that the parties accept the outcome and the case is closed.

Reconsideration Request:

This mechanism should be able to address questions of substance as well as process, and it should serve as a threshold requirement before seeking IRP – the board should have an opportunity to revisit a decision before IRP is invoked.

Independent Review Panel:

Principal changes needed here, IMO, would be the power to bind ICANN to follow an IRP ruling, and the power to hear questions of substance as well as process. On substance, a standard will have to be found (consistency with Articles and bylaws? Consistency with Articles and bylaws as well as with Agreements ICANN has entered into? ).

Some issues Related to IRP:

1.      Composition of the panel: most discussions seem to focus on a standing panel of lawyers. That will be expensive and some (like me) may question why the panel should be composed entirely of lawyers. The community has many able academics, engineers, business people, members of civil society, etc. Maybe a hybrid of lawyers and community nominees would work. That might hold down costs and deepen the appreciation of context.

2.      Limitations:

a.      IMO, as ICANN becomes subject to substantive as well as procedural reviews in binding fashion, it should be protected from excesses that seem to crop up in many claims systems,  for instance its liability for money damages (e.g. refunding a TLD application fee in cases where a claimant succeeds in arguing that its TLD application was mishandled) should only be for direct, out of pocket amounts, not for indirect or consequential expenses, etc.;

b.      It seems sensible not to allow for attorney’s fees or other costs of engaging in IRP absent a finding by the IR panel that a claim or defense was frivolous, and then only to the extent of meeting such claims or defenses;

c.      Timeliness of a complaint – perhaps there should be a requirement that a claim must be submitted within 30 (60?) days of the finality of the required reconsideration process;

d.      Legality – ICANN could not be ordered to take an action that would be illegal where performed;

e.      Class actions – Art. IV, Section 3, para. 3, presently allows consolidated claims to be heard where the “causal connection” between the circumstances of the claims and the harm is the same. I suggest tightening up that language to “specific causal connection;”

f.      And there needs to be document disclosure (discovery) reform so that parties to IRP and the reconsideration process have reasonable opportunity to review materials possessed by the other side. This is a delicate area not least because (at least in the new gTLD application process) business competitors are at times involved. But there are well-trod ways to allow for discovery and at the same time protect proprietary information.

While there are other important issues in the matrix, these are the ones that strike me as at the top of the list.

Best wishes to all who are making their way to Istanbul.

David McAuley

-----Original Message-----
From: wp2-independentreview-bounces at icann.org [mailto:wp2-independentreview-bounces at icann.org] On Behalf Of Burr, Becky
Sent: Thursday, March 19, 2015 4:28 PM
To: David Post; wp2-independentreview at icann.org; wp2 at icann.org
Subject: Re: [independent review] Pulling A Review Panel Together

Ok, I will add it to the template.  Thanks everyone.

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 / www.neustar.biz

On 3/19/15, 2:35 PM, "David Post" <david.g.post at gmail.com> wrote:

>
>This was discussed earlier, and to be honest I left it off of the
>Template document by mistake ... I do think a 1-term term limit is a
>good idea (though as I recall there was some sentiment in the opposite
>direction on the ground that we shouldn't eliminate people who prove
>particularly well-suited to the role from further
>service)  But at the very least this probably should have been flagged
>as a open issue - David
>
>
>
>>On 3/19/15, 12:20 PM, "Malcolm Hutty" <malcolm at linx.net> wrote:
>>
>> >One small suggestion: at the end of their term of office they should
>> >be ineligible for re-appointment, or for appointment to the Board or
>> >other office within ICANN.
>> >
>> >One of the greatest threats to independence (at least in
>> >environments free of outright corruption) is the hope of
>> >re-appointment, or of preferrment to another role, the latter often
>> >being justified on the basis of the "outstanding expertise and
>> >experience" acquired in the previous role.
>> >
>> >The most certain check on this threat would be permanence of office,
>>but
>> >as this is not appropriate in this case then a single could substitute.
>> >
>> >Malcolm.
>> >
>> >_______________________________________________
>> >wp2-independentreview mailing list
>> >wp2-independentreview at icann.org
>>
>>>https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mai
>>>lma
>>>n_
>>
>>>listinfo_wp2-2Dindependentreview&d=AwICAg&c=MOptNlVtIETeDALC_lULrw&r=
>>>62c
>>>JF
>>
>>>Oifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=1MPkU7Oy1y1MuhaFfvvuP_DG3oun
>>>xNZ
>>>wr
>> >ahiQgxpNY8&s=Ss8-qybz5QYJv_vEIBxtZMB9LgQKK8WAaehRdhP0cMI&e=
>>
>>_______________________________________________
>>wp2-independentreview mailing list
>>wp2-independentreview at icann.org
>>https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mail
>>man
>>_listinfo_wp2-2Dindependentreview&d=AwICAg&c=MOptNlVtIETeDALC_lULrw&r=
>>62c
>>JFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=mWDnW9fbumhQzmEvfK2ERJxVUuV
>>tBY Wh-Di8q-qYf4Q&s=dwkF1lAyStSAjPb_FoS2VCT-6HObsKL3akECG21Dmzw&e=
>
>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America
>Foundation blog (Volokh Conspiracy)
>https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.
>com
>_people_david-2Dpost&d=AwICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_G
>Rla
>q8Mo8TjDmrxdYahOP8WDDkMr4k&m=mWDnW9fbumhQzmEvfK2ERJxVUuVtBYWh-Di8q-qYf4
>Q&s =NBy3e5-XeoCVDqJN3oUijmCiqVK1UfGx8PFAdDdGqHE&e=
>book (Jefferson's Moose)
>https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n
>&d=
>AwICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WD
>DkM
>r4k&m=mWDnW9fbumhQzmEvfK2ERJxVUuVtBYWh-Di8q-qYf4Q&s=Y26XAkw0L8SKalRQws5
>civ
>bvkK9led5iLs6h32jo51Y&e=
>music
>https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpo
>stm
>usic&d=AwICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdY
>ahO
>P8WDDkMr4k&m=mWDnW9fbumhQzmEvfK2ERJxVUuVtBYWh-Di8q-qYf4Q&s=JidOmTmVZo-_KBs
>L6UEYluV7V0t6VoaDGXBf7Ktxp14&e=   publications
>etc.
>https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com&d
>=Aw
>ICAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDk
>Mr4
>k&m=mWDnW9fbumhQzmEvfK2ERJxVUuVtBYWh-Di8q-qYf4Q&s=ypVnWW3tmTCY1UOg4mv4B
>0Et
>mxHziKCAf1p0vtdQSL8&e=
>*******************************
>
>_______________________________________________
>wp2-independentreview mailing list
>wp2-independentreview at icann.org
>https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailm
>an_
>listinfo_wp2-2Dindependentreview&d=AwICAg&c=MOptNlVtIETeDALC_lULrw&r=62
>cJF
>Oifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=mWDnW9fbumhQzmEvfK2ERJxVUuVtBY
>Wh- Di8q-qYf4Q&s=dwkF1lAyStSAjPb_FoS2VCT-6HObsKL3akECG21Dmzw&e=

_______________________________________________
wp2-independentreview mailing list
wp2-independentreview at icann.org
https://mm.icann.org/mailman/listinfo/wp2-independentreview
“This message (including any attachments) is intended only for the use of the individual or entity to which it is addressed, and may contain information that is non-public, proprietary, privileged, confidential and exempt from disclosure under applicable law or may be constituted as attorney work product. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this message in error, notify sender immediately and delete this message immediately.”