[WP2] IRP provider appointment Was: updated documents from this morning

Wed Jul 29 17:24:24 UTC 2015

I think the current draft outsources far too many 
functions to the "IRP provider."

The IRP is supposed to be a critical component of 
ICANN's overall governance scheme, and it is 
being given a very serious mandate.  As others 
have said here, the IRP's core job is an analogue 
to a "constitutional court."  I can understand 
the need to have some 3d party provider 
"administer the process" (para 7), in terms of 
managing the work flow and the like.

But why should the 3d party dispute resolution 
provider be "coordinating the process" by which 
the community confirms Board nominations to the 
Standing Panel (para 7).  That goes way beyond 
managing the IRP's workflow - that process 
controls who gets on to the IRP and who doesn't. 
Why should the Provider have any role in that at 
all?  That's a really critical function - I 
wouldn't imagine any country outsourcing it to a 
3d-party provider, and I wouldn't advise ICANN to do so either.

Same for determining the procedure to assign 
members to individual panels (para 11), 
coordinating the process by which the community 
has input into IRP rules and procedures (para 8), 
and appointing the Chair of the Standing Panel 
(para 7).  These are tasks that should be 
performed somewhere within ICANN, through some 
combination of the Board, the Community, and the 
IRP itself, so that whomever makes the relevant 
decisions can be held accountable for them, which 
becomes effectively impossible when the tasks are all outsourced.

In the aggregate, this looks like a system that 
is designed to be "run" by the provider, in much 
the way WIPO "runs" the UDRP (or ICSID "runs" the 
new PICDRP).  But the IRP has a function - 
holding ICANN to its Bylaws - that is completely 
different than the function of the UDRP or 
PICDRP, and I don't think this design is 
appropriate in the IRP context.  It also has the 
defect that it passes the buck, and does not 
solve the fundamental accountability problem - if 
the ICC, or ICSID, or WIPO is going to run the 
IRP, who holds them accountable?

David

At 08:47 AM 7/29/2015, Burr, Becky wrote:
>I¹m not sure - I thought the notion of a tender to be approved by the
>community was settled a while ago.  That said, I¹d be ok with approval by
>the WS2 subgroup, which will be assisted by experts, etc.  Your
>recommendation is that ICANN select the provider.  So that is the question
>for the group
>
>Alt 1.  IRP provider selected by ICANN
>Alt 2.  IRP provider selected by ICANN and approved by community
>Alt 3.  IRP provider selected by ICANN and WS2 subgroup
>
>Thoughts?
>
>
>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 7/29/15, 6:25 AM, "Malcolm Hutty" <malcolm at linx.net> wrote:
>
> >Becky,
> >
> >These papers looks very good, and shows how much we have achieved. We
> >seem to be just about done, so congratulations.
> >
> >I can find on the paper just one note of disagreement still being
> >recorded, relating to the appointment of the IRP Provider.
> >
> >* Greg had proposed that the appointment process be conducted by ICANN
> >and the community jointly.
> >
> >* I had said I thought that this was likely to be unworkable, and that
> >it would be sufficient to have ICANN consult the community on the terms
> >of the tender process, but selection itself should be by ICANN.
> >
> >Where did we get to on this? I remember a back-and-forth between me and
> >Greg on this list, but don't remember it being discussed by the group.
> >
> >-> If it hasn't been decided by WP2 collectively, may I ask that you
> >test the group's opinion as to whether they prefer my approach or Greg's?
> >
> >-> If it has been decided and I just missed it, and the collective view
> >was to prefer Greg's proposal, you may remove the footnote noting my
> >disagreement: it is not my view that this is such a serious issue that I
> >would want to preserve my objection as a minority statement to go into
> >the Final Report for Public Comment.
> >
> >Kind Regards,
> >
> >Malcolm.
> >
> >--
> >            Malcolm Hutty | tel: +44 20 7645 3523
> >   Head of Public Affairs | Read the LINX Public Affairs blog
> > London Internet Exchange |
> >https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net
> >_&d=AwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8W
> >DDkMr4k&m=7V3mMOl7Mz6xY7Y9lE2OK-jqx_Ij1oB3lYJ60yX-fgM&s=4fsm4fx_mfyEjMN68k
> >PK7cqn0GocMbqr4Sna0e_Ei6Q&e=
> >
> >                 London Internet Exchange Ltd
> >           21-27 St Thomas Street, London SE1 9RY
> >
> >         Company Registered in England No. 3137929
> >       Trinity Court, Trinity Street, Peterborough PE1 1DA
> >
> >
>
>_______________________________________________
>WP2 mailing list
>WP2 at icann.org
>https://mm.icann.org/mailman/listinfo/wp2

*******************************
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
music 
http://tinyurl.com/davidpostmusic  publications 
etc.  http://www.davidpost.com
*******************************  
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/wp2/attachments/20150729/f1e433d7/attachment-0001.html>