[WP2] current state of IRP checklist plus sample bylaws language and the comment summary

Greg Shatan gregshatanipc at gmail.com
Tue Jul 28 16:32:46 UTC 2015 

Currently, our document states that rules and procedures will be developed
as follows (Section 13) : A "CCWG sub group, assisted by counsel and
appropriate experts, will continue to work on implementation details and
will work with initial panel and the IRP provider on rules of procedure,
etc. as part of WS2."  So, there will be input from the initial [standing]
panel in the rules and procedures (if the optimistic assumption that an
initial panel will be in place early enough to work with WS2 holds true).

We could move the issue of filing deadline into WS2.  That will allow for
much more deliberate consideration, and draw in the panelists as you
suggest.  While the current IRP Bylaw states the filing deadline, this is
not a requirement.  The new Bylaw could simply state that a filing deadline
will be set forth in the IRP Rules and Procedures.  (It could also be added
to revised Bylaws as part of WS2, should we care to give it that extra
protection).

Beyond the immediate question, I think David's email raises the question
whether the "standing panel" is merely a list of names, or is it a body
that can take actions (outside of sitting panels and *en banc* appeals)?
The language from Section 13 contemplates some administrative action, but
our proposal is silent on anything else.  The current IRP had all the
administration taking place with the outside provider; we may not want to
stick with that paradigm (or if we do, we may want a more ministerial role
for the outside provider, and a more substantive role for the panel as an
administrator).  If the standing panel is an administrative body, then it
could be empowered to recommend (to the community, possibly with approval
by the Board) revisions to the Rules and Procedures on its own initiative
and as part of a periodic review.  Right now, we have no procedure for
revising the Rules and Procedures (other than an ATRT-style periodic
review).  This may all be WS2, but it's worth highlighting now for future
thought.

Greg

On Tue, Jul 28, 2015 at 10:51 AM, David Post <david.g.post at gmail.com> wrote:

>
> To me, the question is: why do we think *we're *in a better position,
> now, to determine what an appropriate limitations period should be, than
> the IRP itself will be, when it sees how the process works in practice?
>
> There's an awful lot we don't (and can't) know about how this process
> actually will work, all of which bears upon the question of what a
> reasonable limitations period should be: will the IRP be flooded with
> claims, or will it have little to do?  will there be lots of frivolous
> claims, or few?  lots of claims asking it to do things/decide cases it's
> not authorized to hear, or few?  what kind of "pleading requirements" is it
> going to impose on claimants before a case can be opened?
>
> Perhaps there's a concern that the IRP will make the "wrong" decision -
> that it will adopt a too-short period (because it doesn't want additional
> work) or a too-long period (because it's power-hungry and wants to involve
> itself in ICANN affairs more than is appropriate).  I can see that - though
> it hearkens back to my views about the importance of making the IRP a true
> institution within ICANN rather than just a faceless collection of
> arbitrators who are mostly concerned with other things; I think part of the
> WG's task is to design an IRP that will make sensible decisions, including
> decisions about its own procedures and processes, down the road.
>
> I share the concern about claims being open forever - but a 30 day period
> swings much too far, in my opinion, in the other direction.  It's an
> alarmingly short period of time - particularly if there are complicated
> filing requirements (as there well may be).  if there's going to be a limit
> stated in the bylaws, i'd suggest making it a long period to start with (no
> claims after 1 year, or even 2 years), subject to the IRP's power to
> revise.
>
> [If I remember correctly, the IRP's own rules/procedures have to be
> approved by the Community - is that right?  If not, it should be - that's a
> better way to protect against ill-advised IRP procedures/processes than
> having us try to spell them out in advance, imo.
>
> David
>
> At 05:08 PM 7/27/2015, Greg Shatan wrote:
>
> The IRP can determine whether a limitation period bars an IRP, but they
> need to be applying some defined period, and this period needs to be
> consistent for all complainants.
>
> If there is no time period (or formula for arriving at a time period) for
> IRPs stated in the bylaws (or in the rules and procedures, if we want to
> punt a little bit), no IRP will be barred.  There would be no basis for a
> bar.  Instead, it will be available to a complainant for all time.
>
> I don't think that sounds good to me.
>
> Greg
>
> On Mon, Jul 27, 2015 at 4:57 PM, Malcolm Hutty <malcolm at linx.net> wrote:
>
>
> On 27/07/2015 21:43, Burr, Becky wrote:
> > That seems sensible to me
>
> So do you intend to remove the existing limit, and specify that the IRP
> can itself determine a reasonable time-bar?
>
> That seems quite a big piece of discretion to hand it: what it decides
> will affect the way the IRP looks quite a lot.
>
> For my part, whatever the time limit should be, it is very important
> that the clock only start ticking when the applicant has experiencd
> whatever it is they wish to complain about, or is aware that they are
> likely to experience it. The present approach - starting the clock when
> the Board takes its decision - is no longer fit for purpose. It was
> designed for when IRP cases were effectively limited to contracted parties.
>
> We do not want our time limit to effectively debar non-contracted
> parties who know nothing about ICANN from ever bringing a complaint.
>
> I think this should be specified in the Bylaws.
>
> >
> > J. Beckwith Burr
> >
> > *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
> >
> > 1775 Pennsylvania Avenue NW, Washington, DC 20006
> >
> > Office: + 1.202.533.2932 <%2B%201.202.533.2932>Â  Mobile:
> > +1.202.352.6367Â  / becky.burr at neustar.biz
> > < mailto:becky.burr at neustar.biz <becky.burr at neustar.biz>> /
> www.neustar.biz
> >
> >
> > From: David Post <david.g.post at gmail.com < mailto:david.g.post at gmail.com
> <david.g.post at gmail.com>>>
> > Date: Monday, July 27, 2015 at 4:28 PM
> > To: Becky Burr <becky.burr at neustar.biz < mailto:becky.burr at neustar.biz
> <becky.burr at neustar.biz>>>
> > Cc: Bruce Tonkin < Bruce.Tonkin at melbourneit.com.au
> > < mailto:Bruce.Tonkin at melbourneit.com.au
> <Bruce.Tonkin at melbourneit.com.au>>>, "WP2 at icann.org
> > < mailto:WP2 at icann.org <WP2 at icann.org>>" <WP2 at icann.org <
> mailto:WP2 at icann.org <WP2 at icann.org>>>
> > Subject: Re: [WP2] current state of IRP checklist plus sample bylaws
> > language and the comment summary
> >
> > Isn't this something that we could leave for the IRP itself to deal with
> > in its processes/procedures?  Why do we have to specify a limitations
> > period in advance?
> > David
> >
> >
> > At 12:42 PM 7/25/2015, Burr, Becky wrote:
> >> Content-Language: en-US
> >> Content-Type: multipart/alternative;
> >>Â  Â  Â  Â  Â  boundary="_000_D1D9347138C0Ebeckyburrneustarbiz_"
> >>
> >> The more I think about this 30 day thing, the more concerned I get –
> >> we need to provide for tolling the period for the pre filing
> mediation/CEP
> >>
> >> J. Beckwith Burr
> >>
> >> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
> >>
> >> 1775 Pennsylvania Avenue NW, Washington, DC 20006
> >>
> >> Office: + 1.202.533.2932 <%2B%201.202.533.2932>Â  Mobile:Â
> +1.202.352.6367Â  /
> >> becky.burr at neustar.biz < mailto:becky.burr at neustar.biz
> <becky.burr at neustar.biz>> /
> >> www.neustar.biz < http://www.neustar.biz/>
> >>
> >> From: Bruce Tonkin < Bruce.Tonkin at melbourneit.com.au
> >> < mailto:Bruce.Tonkin at melbourneit.com.au
> <Bruce.Tonkin at melbourneit.com.au>>>
> >> Date: Saturday, July 25, 2015 at 3:31 AM
> >> To: "WP2 at icann.org < mailto:WP2 at icann.org <WP2 at icann.org>>" <
> WP2 at icann.org
> >> < mailto:WP2 at icann.org <WP2 at icann.org>>>
> >> Subject: Re: [WP2] current state of IRP checklist plus sample bylaws
> >> language and the comment summary
> >>
> >> Hello Becky,
> >>
> >> The proposed bylaws language change with respect to the timing of an
> >> IRP proceeding:
> >>
> >> “A request for A request for independent review must be filed within
> >> thirty days of the posting
> >> of the minutes of the Board meeting (and the accompanying Board Briefing
> >> Materials, if available) thatthe requesting party becoming aware of
> >> the action
> >> that it contends demonstrates that ICANN violated its Bylaws or
> >> Articles of
> >> Incorporation. Consolidated requests may be appropriate when the causal
> >> connection between the circumstances of the requests and the harm is
> >> the same
> >> for each of the requesting parties.â€
> >>
> >> How would you determine when a “requesting party†becomes aware of an
> >> action?     I expect it would be hard to determine when that event
> >> would happen – so this feels a little like that a party caan file at
> >> any time after a decision – potentially years later.     This could
> >> have quite negative effect on a third party.   E.g if a new gTLD was
> >> allocated to an applicant, and then the requesting party complains
> >> years later.
> >>
> >> Shouldn’t there be some limit based on what is reasonable – e.g 30
> >> days after the requesting party would reasonably become aware … etc
> >>
> >> Alternatively – maybe leave the current language and increease the time
> >> period – e.g. from 30 to 60 or 90 days.
> >>
> >>
> >> Regards,
> >> Bruce Tonkin
> >>
> >> _______________________________________________
> >> WP2 mailing list
> >> WP2 at icann.org < mailto:WP2 at icann.org <WP2 at icann.org>>
> >> https://mm.icann.org/mailman/listinfo/wp2
> >> <
> https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_wp2&d=AwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=KHtNBFAfs2Wsc0WBFs8uEwqFYvujsUnnN7VF0NWZxXM&s=45ha7ijUSShcMnUJqDwfzDUnJjMkMmkR1KbGauQJpno&e=
> >
> >
> > *******************************
> > David G Post - Senior Fellow, Open Technology Institute/New America
> > Foundation
> > blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
> > <
> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=AwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=KHtNBFAfs2Wsc0WBFs8uEwqFYvujsUnnN7VF0NWZxXM&s=xaEAsKtTS7zpk7-yKBnscwHrcrjC9EVm7Oh262_h49M&e=
> >book
> > (Jefferson's Moose)Â  http://tinyurl.com/c327w2n
> > <
> https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0-25A0-25A0-25A0-25A0-25A0-25A0&d=AwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=KHtNBFAfs2Wsc0WBFs8uEwqFYvujsUnnN7VF0NWZxXM&s=uM7352AWlE5xVa8yoG0L-5mdpe1x-SSRtiX76IYGO50&e=
> >
> > music http://tinyurl.com/davidpostmusic
> > <
> https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmusic-25A0&d=AwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=KHtNBFAfs2Wsc0WBFs8uEwqFYvujsUnnN7VF0NWZxXM&s=-hz2E2fMrdSb7NY0HOElRP-1Pij5y19kvB47QkcD5J4&e=
> >publications
> > etc.  http://www.davidpost.com
> > <
> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0-25C2-25A0_&d=AwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=KHtNBFAfs2Wsc0WBFs8uEwqFYvujsUnnN7VF0NWZxXM&s=Orueb-zlDxfxaAOPf-NA3gwoi716R30h9Po7O6LtYEY&e=
> >
> > *******************************
> >
> >
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>
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> *******************************
> David G Post - Senior Fellow, Open Technology Institute/New America
> Foundation
> blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
> book (Jefferson's Moose)  http://tinyurl.com/c327w2n
> <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>
> music http://tinyurl.com/davidpostmusic
> <http://tinyurl.com/davidpostmusic%A0> publications etc.  http://www.davidpost.com
>
> *******************************
>
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