[CCWG-ACCT] Your public comment re replacement of IANA provider

Tue Sep 22 02:57:28 UTC 2015

Bruce,

The difficulty I see here is that the .africa  case was focused on whether ICANN violated its own procedures and the panel held unanimously that it did.  There was also arguably "undue government influence" (against NTIA condition for transition) because the panel found unanimously that the NGPC (which was delegated full Board authority) failed to deal properly with the GAC recommendation in several respects.   In this regard, the panel appeared to rule that based on its By-laws, ICANN has an obligation to investigate the nature and basis of GAC consensus advice and also under certain circumstances to obtain an expert opinion in relation to such advice.  (I have no idea personally whether that is correct but the panel so held.)

The panel also thought it inappropriate that ICANN filed arguments resisting live testimony before the panelists.  They thus issued an interim ruling  that the judges would be able to question the witnesses and ultimately did so.  So the Board was seen by the panel as uncooperative in this respect.

My only point here it that it may be oversimplifying things to characterize the .africa case as one where the first party complained, the second party denied, then the first party won and the Board complied.    We all have a community interest in making sure that the Final Proposal as recommended to NTIA will pass scrutiny in this regard.  In other words, Board compliance with ICANN’s own procedures and By-Laws must be RAPIDLY enforceable and not result in long, drawn-out proceedings like .africa.  (And of course Alan keeps asking about enforcement of the Articles of Incorporation – which I think reads Core Mission and Values.)

The beauty of the Sole Member structure is in the ability to exercise statutory Community Powers.   The CCWG has been advised that the full scope of such powers is apparently only available within the membership structure so I think many of us are still struggling with the MEM proposal in that it appears to be duplicative of the IRP, but moves the issue to an SO/AC level .    However, I had thought that IRP was already available to SOs and ACs – perhaps not?  Can you please clarify again the FAQ as to why the MEM is not merely duplicative of the IRP?

The other big issue lurking here is the time that existing procedures take in order to execute accountability measures.  I think it is a significant weakness in the current structure and possibly also in the proposed MEM.

Thank you for your diligence in responding to all these questions from the CCWG.  I agree with others that this is a very useful process and am, as you know from previous posts, quite concerned about finalizing a proposal that will pass muster in Congress even in the face of the issues raised by .africa and .amazon (as well as contractual compliance.)

In regard to the last item, there were many public comments to the effect that ICANN’s mission should include contractual compliance and this goes well beyond technical issues.  (Disclosure: I participated in IPC comments on this point.)  Clearly ICANN has a responsibility to enforce contracts that include obligations on the registries that are not technical in nature.   For example, PIC enforcement rests within ICANN.  The PIC Dispute Resolution Process is not an outside process occurring between two independent parties at WIPO or elsewhere.   Further, it is clear there is interest on the part of community members to bring into play a Human Rights role for ICANN in its mission and core values which arguably could result in contractual obligations for the registries that would need to be enforced by ICANN, either via PIC or other mechanism.    Thus, contractual enforcement must be a part of ICANN’s mission.  Certainly this goes well beyond a “limited technical” role.

These are tough issues.  Thanks for your willingness to “dive deep” in the analysis.

Anne

Anne E. Aikman-Scalese

Of Counsel

Lewis Roca Rothgerber LLP |

One South Church Avenue Suite 700

Tucson, Arizona 85701-1611

(T) 520.629.4428 | (F) 520.879.4725

AAikman at lrrlaw.com | www.LRRLaw.com

-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Bruce Tonkin
Sent: Saturday, September 19, 2015 4:38 PM
To: CCWG Accountability
Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider

Hello Eberhard,

>>  in the .AFRICA case at least (and I don't remember the older ones well) ICANN was not the model for cooperation, was it now?

Well as I understand it - the two sides put forward their case, and the complainant won the case.

The ICANN Board then complied with the outcome of the IRP.

Regards,

Bruce Tonkin

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