[CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission

Fri May 29 22:41:44 UTC 2015

With respect, you are trying to find holes where they don’t realistically
exist.  If the community proposes an “out of mission” idea and the Board ill
advisedly agrees to it, then the IRP will correct it.  In a system of checks
and balances someone has to have the last word.

Frankly, I see that possibility as so insignificant compared to the known
instances of Board and/or Staff disregarding community input as to wonder at
the real nature of your question 
 If there is going to be a bias in the
system I would much rather see it as a constraint against ICANN action than
a bias in favor of permitting questionable conduct.

Paul

Paul Rosenzweig

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

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From: Samantha Eisner [mailto:Samantha.Eisner at icann.org] 
Sent: Friday, May 29, 2015 4:01 PM
To: Mathieu Weill
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require
courts to interpret ICANN's mission

Just as there remains the possibility that the board cold take an action
that is outside of the mission, there also remains the possibility that a
review team takes a recommendation outside of ICANN’s mission.  I think that
we’re in agreement that at whichever level it happens, it would be
unacceptable for that action to stand.

What happens, however, if there’s a robust community process such as
community involvement in review team composition selection for robust
participation at the review team level, as well as substantial community
consultations on a recommendation, and it results in a recommendation that
all involved agree that it is within ICANN’s mission.  Then the Board in
considering the recommendation, also agrees.  Allowing for a follow-on
community process to then challenge the board’s acceptance of that community
recommendation seems to create a huge “catch 22” situation for the board and
the community.   Were there requirements for participation in the vetting of
the community recommendations where people were obligated to consider how
the recommendation fit with ICANN’s mission?  Is there a requirement imposed
on the first instance that recommendations should only be those that are
within ICANN’s mission?

I hope this helps clarify my concern.

Best, 

Sam

From: Mathieu Weill <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
>
Date: Friday, May 29, 2015 at 12:11 PM
To: Samantha Eisner <samantha.eisner at icann.org
<mailto:samantha.eisner at icann.org> >
Cc: "Burr, Becky" <Becky.Burr at neustar.biz <mailto:Becky.Burr at neustar.biz> >,
Steve DelBianco <sdelbianco at netchoice.org <mailto:sdelbianco at netchoice.org>
>, Accountability Cross Community <accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require
courts to interpret ICANN's mission

Sam,

Apologies for the confusion. Just read your initial message again and am
still uncertain. 

If a review team makes a recommendation outside of icann mission, and if the
board accepts it, hopefully it will be challenged to the irp right ? 

Because it seems to me that if a review team issues a recommendation outside
of icann mission the accountable way forward would be either :

- reject recommendation on the basis that it is outside of the mission

-or initiate a process to change the by laws (which will be subject to
community powers)

Could you maybe expand on the kind of protection you think of ? Do you mean
protect against the initiation of a challenge ? 

Best

Mathieu Weill

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

Depuis mon mobile, désolé pour le style

Le 29 mai 2015 à 21:02, Samantha Eisner <Samantha.Eisner at icann.org
<mailto:Samantha.Eisner at icann.org> > a écrit :

Agreed Mathieu.  My question, however, was addressing the situation where
the Board ACCEPTED a recommendation from a community group and that was
still being challenged (potentially through a community process).  It seems
that there could be need for additional protections there.

From: Mathieu Weill <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
>
Date: Friday, May 29, 2015 at 11:55 AM
To: "Burr, Becky" <Becky.Burr at neustar.biz <mailto:Becky.Burr at neustar.biz> >
Cc: Samantha Eisner <samantha.eisner at icann.org
<mailto:samantha.eisner at icann.org> >, Steve DelBianco
<sdelbianco at netchoice.org <mailto:sdelbianco at netchoice.org> >,
Accountability Cross Community <accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require
courts to interpret ICANN's mission

Thanks for your question Sam. 

My understanding is that the irp would assess whether the board decision not
to implement is consistent with the mission. (That's the core of the
standard of review we have set)

If the board has a convincing rationale that says "out of the mission" I
fail to see how the panel could decide to cancel the board decision ? 

Isn't that the protection we are talking about ? 

Best

Mathieu Weill

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

Depuis mon mobile, désolé pour le style

Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr at neustar.biz
<mailto:Becky.Burr at neustar.biz> > a écrit :

Good point.  I think there is an answer, but if not it is very fixable.

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  /
<mailto:becky.burr at neustar.biz> becky.burr at neustar.biz / www.neustar.biz
<http://www.neustar.biz> 

From: Samantha Eisner <Samantha.Eisner at icann.org
<mailto:Samantha.Eisner at icann.org> >
Date: Friday, May 29, 2015 at 1:41 PM
To: Becky Burr <becky.burr at neustar.biz <mailto:becky.burr at neustar.biz> >,
Steve DelBianco <sdelbianco at netchoice.org <mailto:sdelbianco at netchoice.org>
>, Accountability Community <accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require
courts to interpret ICANN's mission

In the stress test v2 that Steve set out below, doesn’t that call out a
different issue?

The stress test suggests that there is the possibility that the Board should
be subject to an IRP/challenge for the acceptance of a recommendation
arising out of the ATRT (or other community-based review team).  What are
the protections that we are building into the process so that the review
teams themselves are bounded by ICANN’s mission when developing
recommendations, so that the Board is not put into the untenable position of
accepting community-based recommendations and then being challenged for
doing so?  What are the requirements for broader participation in the public
comment/development of recommendations to help alleviate this type of
situation from ever coming about?

From: <Burr>, Becky <Becky.Burr at neustar.biz <mailto:Becky.Burr at neustar.biz>
>
Date: Friday, May 29, 2015 at 7:19 AM
To: Steve DelBianco <sdelbianco at netchoice.org
<mailto:sdelbianco at netchoice.org> >, Accountability Cross Community
<accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require
courts to interpret ICANN's mission

I think this is basically right.  But I think there are ADDITIONAL
safeguards that makes litigation even less likely.  For example, in Version
1 and 2 below, the ATRT recommendation to adopt a policy would not be
directly accepted or rejected by the Board.  Any new substantive policy
would need to go through a PDP, which would require ICANN legal to opine
whether or not the proposed policy is within the scope of a PDP.   If the
recommended policy is not a PDP type policy (e.g., a recommended Bylaws
change) the community would have direct input and an opportunity to
reject/block.  

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  /
<mailto:becky.burr at neustar.biz> becky.burr at neustar.biz / www.neustar.biz
<http://www.neustar.biz> 

From: Steve DelBianco <sdelbianco at netchoice.org
<mailto:sdelbianco at netchoice.org> >
Date: Friday, May 29, 2015 at 9:50 AM
To: Accountability Community <accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require
courts to interpret ICANN's mission

The thoughtful comments by Arun and Parminder were on Chris Disspain’s
original note, which I included in mine. 

But let’s also have a discussion of the two stress tests I proposed (below),
suggesting that courts would not be involved in interpreting ICANN bylaws or
mission statement.

—Steve

On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco at netchoice.org
<mailto:sdelbianco at netchoice.org> > wrote:

On this week's stress test team call, we looked at Chris Disspain’s
hypothetical (at bottom).   The team had difficulty identifying a scenario
under which a California court would, as Chris suggested, "make binding
decisions about interpretation of ICANN’s mission.” This was due in part to
a misunderstanding embedded in Chris’ scenario. 

What we’ve done below is take Chris’ scenario and turn it into two scenarios
that could happen under the Member powers described in the CCWG proposal.
We don’t think either of these scenarios would result in the outcome Chris
worried over. 

Stress Test version 1:  Board refuses to follow community recommendation 

1. An ATRT (Accountability and Transparency Review Team) recommends a new
policy for implementation.  

2. The ICANN board decides to reject the recommendation, saying it conflicts
with ICANN’s limited Mission Statement in the amended bylaws.

3. Community Members vote to challenge the board’s decision with an IRP.  An
IRP panel of 3 international arbitrators (not a Court) finds that the ATRT
recommendation does not conflict with “substantive limitations on the
permissible scope of ICANN’s actions” (p.32).  The IRP panel therefore
cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of
proposal )  Our current proposal does not give Members the power to force
ICANN board to accept and implement the ATRT recommendation.   (p.32)

4. If the board refused to implementing the ATRT recommendation (see step
1), Members could vote to recall the board.  Members could also vote to
block the very next budget or strat plan if it did not include the ATRT
recommendation.

Stress Test version 2:  Board follows community recommendation, but is
reversed by IRP decision

1. An ATRT (Accountability and Transparency Review Team) recommends a new
policy for implementation.  

2. The ICANN board decides to accept the recommendation, believing that it
does not conflict with ICANN’s limited Mission Statement in the amended
bylaws.

3. An aggrieved party or Community Members vote to challenge the board’s
decision with an IRP.  An IRP panel of international arbitrators (not a
Court) finds that the ATRT recommendation does conflict with “substantive
limitations on the permissible scope of ICANN’s actions” (p.32).  The IRP
panel therefore cancels the board decision to accept and implement the ATRT
recommendation.(pp. 31-32 of proposal )

4. If the board ignored the IRP ruling and continued to implement its
earlier decision, parties to the IRP could ask courts to enforce the IRP
decision.  Would that court re-litigate the IRP’s substantive decision
interpreting the ICANN bylaws?   That is not our expectation, since it is
only "expected that judgements of the IRP Panel would be enforceable in the
court of the US and other countries that accept international arbitration
results” (p.34, emphasis added)   

5. If the ICANN Board continued to ignore the IRP decision and court orders
to enforce it, Members could vote to recall the board. Members could also
vote to block the very next budget or strat plan if it included
implementation of the ATRT recommendation.

21/05/2015 03:45, Chris Disspain wrote  (
<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_
accountability-2Dcross-2Dcommunity_2015-2DMay_003035.html&d=AwMGaQ&c=MOptNlV
tIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=X56Me2-F6Etg
rc4Kcl5pz3c-js1S7kveIwNV-n4DMoc&s=73saSCa_-ze0blCSpk_1N-36nkQUNVnzPAIrbjO7lS
Q&e=> link and excerpt below):

Second, I would like to use a step-by-step scenario to explain where my
concerns lie. Under the CCWG’s currently proposed mechanisms:

1. The community, pursuant to powers defined in a “fundamental bylaw”, and
through a vote of that meeting the required threshold for support, directs
the Board to do X

2. The Board refuses to do X because it maintains that X is outside of the
mission of ICANN

3. The community triggers escalation mechanisms

4. Escalation proceeds to binding arbitration (as defined by another
fundamental bylaw)

5. The arbitrator finds in favour of the community and directs ICANN to do X

6. The Board refuses to act, citing, again, that it believes the action is
outside of ICANN’s mission

7. After the necessary community votes etc., the community now heads to
court. In the State of California.

As I understand it, the role of the court in this scenario would be to
determine whether the Board is acting in a way that is serving the public
interest within ICANN’s mission. It would not be to decide whether, on
balance, the community was ‘more right’ than the Board. 

Right now as a global multi-stakeholder body we decide the nuances of the
meaning of ICANN’s mission and the way ICANN acts under that mission by
using the multi-stakeholder process and by compromise and nuanced decision
making.

If we agree to the CCWG recommendations we will not be handing ultimate
authority to the members but rather we will be handing ultimate authority to
a state based American court and allowing it to make binding and precedent
setting decisions about the interpretation of ICANN’s mission. 

Does the ICANN community really want the specific nuances of ICANN’s mission
to be held up to scrutiny and have decisions made, at the highest level,
through such a mechanism? Whilst that may give comfort to, for example, US
members of the intellectual property community or US listed registries, it
gives me no comfort whatsoever.

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