[WP2] [independent review] Independent Review

Tue Mar 17 18:26:53 UTC 2015

Edward

This is very interesting to me.  If you are willing to disclose more, I’d like to know some greater detail (given that it involves $ and a client you might not be willing and I’d understand that).  

Were the costs that you could not afford institutional or internal?  In other words, was there a cost to invoking the process charged by ICANN or some other body?  Or were the costs simply that you couldn’t afford to hire a really good lawyer to make your argument for you?

The first of those are easy to defray.  The latter type of costs are much harder to address.  We could conceptualize a pro bono service organization or an equal access to justice type funding mechanism, but both of those have problems of their own.  As with everything about this, the problem is not unique to the ICANN context ….  There are known modalities of solution but all have tradeoffs.

So, I guess as a first cut, I’d like to know which type of problem we are dealing with, if you can tell

P

Paul Rosenzweig

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From: Edward Morris [mailto:egmorris1 at toast.net] 
Sent: Tuesday, March 17, 2015 12:55 PM
To: Burr, Becky
Cc: Paul Rosenzweig; Mathieu Weill; wp2 at icann.org; wp2-independentreview at icann.org
Subject: Re: [WP2] [independent review] Independent Review

I'm glad we're talking about affordability of accountability because for those who can't afford the process accountability does not exist. I can offer a real life example of where the current IRP model falls short.

Many of you will recall the Trademark +50 dispute. Regardless of your views on the specifics,  I trust most would regard the procedural issues involved to be legitimate and non-frivilous. We followed procedure: 1) a DIDP to obtain documentation, 2) a reconsideration request, 3) multiple CEP calls and then...well, a bit with the Ombudsman but that's it. The NCSG could not afford to engage in an IRP with ICANN. We wanted to, many individuals in other constituencies and groups encouraged us to, but in the end we didn't have the funds to continue. We lost not because of the validity of our position but because ICANN corporate could wait and engage in early level processes knowing we likely could not afford to get to the one reasonably independent accountability that did exist.

It's a challenge: to create affordable accountability mechanisms that do not encourage vexatious abuse of the process. It's a challenge we must meet. Simply saying it can't be done and that accountability is only available to those who can afford it is not acceptable. As a PBC with global reach we need to ensure our accountability mechanisms are accessible to all, not just to those with means, largely from the developed world.  

On Tue, Mar 17, 2015 at 4:15 PM, Burr, Becky <Becky.Burr at neustar.biz <mailto:Becky.Burr at neustar.biz> > wrote:

If the panel decides, it has to have a standard for decision making – I.e., one of the two approaches described by Paul below.  I’m slightly more comfortable with the first model, but I understand that many parts of the world do operate on the loser pays model.

J. Beckwith Burr

Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer

1775 Pennsylvania Avenue NW, Washington, DC 20006

Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932>   Mobile:  +1.202.352.6367 <tel:%2B1.202.352.6367>   / becky.burr at neustar.biz <mailto:becky.burr at neustar.biz>  / www.neustar.biz <http://www.neustar.biz> 

From: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com> >
Date: Tuesday, March 17, 2015 at 10:12 AM
To: 'Mathieu Weill' <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr> >
Cc: "wp2 at icann.org <mailto:wp2 at icann.org> " <wp2 at icann.org <mailto:wp2 at icann.org> >, "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] [WP2] Independent Review

Absolutely possible.  But you still have to have a background rule.  One that says “each party bears its own costs” except if the IRP finds the filing “vexatious or frivolous or in bad faith” is very different from one that say “loser pays for the costs” unless the IRP finds the filing “in good faith or with a substantial colorable basis”

I have separately prposed to WP2 the first model, which more fits my own preferences – but the second is equally legitimate as a policy choice.

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweigesq at redbranchconsulting.com> paul.rosenzweig at redbranchconsulting.com

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From: Mathieu Weill [mailto:mathieu.weill at afnic.fr] 
Sent: Tuesday, March 17, 2015 9:54 AM
To: Paul Rosenzweig
Cc: Jonathan Zuck; McAuley, David; Grace Abuhamad; wp2-independentreview at icann.org <mailto:wp2-independentreview at icann.org> ; wp2 at icann.org <mailto:wp2 at icann.org> 
Subject: Re: [independent review] [WP2] Independent Review

Hi Paul,

You are right to distinguish cost and price here. ICANN could support most of the cost while the price might be lower than cost. 

Concerning the alternatives you describe below, could there also be an option for the panel to decide upon who should carry what share of the cost, as part of its decision and based on the merits of the case ? 

Best,

Mathieu Weill

---------------

Depuis mon mobile, désolé pour le style

Le 17 mars 2015 à 14:32, "Paul Rosenzweig" <paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com> > a écrit :

I am not sure I agree that cost is that big an issue.  ICANN has a large surplus right now and makes a handsome “profit” from the sale of domains.  It can fund the bureaucracy quite readily, especially since it will be virtual.  5 salaries for experts; one dedicated staffer to manage the process and lots of computer time.

Much more difficult is permitting ready access to the review process without encouraging frivolous suits.  All systems of law have that problem and we are not going to solve it here since nobody else has ever solved it before.  You can either a) favor access by having no assessment of costs to losers (except in egregious cases); or b) favor dissuading frivolity with a loser pays system … We’ve studied this for years and I can’t think of any other answer.  It’s a fundmentatl policy choice.   Best answer I know is a modest filing fee that is waivable by  the IRP for good cause shown …

P

Paul Rosenzweig

 <mailto:paul.rosenzweigesq at redbranchconsulting.com> paul.rosenzweig at redbranchconsulting.com

O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> 

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From: Jonathan Zuck [mailto:JZuck at actonline.org] 
Sent: Monday, March 16, 2015 11:29 AM
To: McAuley, David; Grace Abuhamad; wp2-independentreview at icann.org <mailto:wp2-independentreview at icann.org> ; wp2 at icann.org <mailto:wp2 at icann.org> 
Subject: Re: [WP2] Independent Review

Agree. To me, cost is a more serious issue than Presidential appointment which I believe can be mitigated through term management similar to federal judges.

From:wp2-bounces at icann.org <mailto:wp2-bounces at icann.org>  [mailto:wp2-bounces at icann.org] On Behalf Of McAuley, David
Sent: Monday, March 16, 2015 9:18 AM
To: Grace Abuhamad; wp2-independentreview at icann.org <mailto:wp2-independentreview at icann.org> ; wp2 at icann.org <mailto:wp2 at icann.org> 
Subject: Re: [WP2] Independent Review

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>  [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 <mailto:wp2-independentreview 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=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSmuXs&s=13_e2O5o3-2boXocOkHmJo-yvHNpJ_50IpzSCxzrrBY&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=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSmuXs&s=PLHM4DUUz01hhbbTj2q012j82RfbZOHtL_LrnowuDwo&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 <tel:%2B%201.202.533.2932>   Mobile:  +1.202.352.6367 <tel:%2B1.202.352.6367>   /  <mailto:becky.burr at neustar.biz> becky.burr at neustar.biz / www.neustar.biz <http://www.neustar.biz> 

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