[CCWG-ACCT] DOCUMENT - Rec 7 – Scope of IRP (first reading)

[Malcolm Hutty]

On 11/01/2016 15:57, Alice Jansen wrote:
> _Sent on behalf of CCWG-ACCT Co-Chairs_
> 
> In preparation for your R/ecommendation 7 – Scope of IRP (first
> reading)/ discussion scheduled for your call #76 - Tuesday, 12 January
> 2016 (06:00 – 09:00 UTC) - please find attached the material to review. 
> Please use this email thread to circulate any comments you may have in
> advance of the call.
> 
> Thank you
> 
> Mathieu, Thomas, León

I will only be able to attend part of the call, as I will be in transit,
and by audio-only; not Adobe chat.

I am therefore submitting some observations in advance.

* The CWG and IAB requests seem appropriate, although in the CWG's case
implementation may need careful wording, and I have no suggestions for
how to do that.

* The Golden Rule of the IRP is that it exists to review whether ICANN
has acted inconsistently with its Bylaws. That's all.
 - This means the scope of the IRP is narrow: you cannot succeed in an
appeal to it merely because you dislike what ICANN has done. ICANN is,
and must remain, free to do all sorts of unwise and misguided things,
without those decisions being reviewed by the IRP. To say otherwise
would be to move the decision-making from the bottom-up community, where
it should be, to the rule of lawyers.

- At the same time, this means the scope of the IRP must not be reduced
further. If ICANN has acted inconsistently with the Bylaws, it must be
possible to hold it to account in the IRP. It does not matter that the
action is labelled "operational" or "implementation" or "not a Board
action". Anything that ICANN the corporation has done must be compatible
with the Bylaws, and if it is not, an IRP must be a possibility.

* Apply this "Golden Rule", I do not agree with a suggestion that
anything can be excluded from the scope of the IRP merely by declaring
it to be "operational", not if that term is so flexible as to extend
beyond technical operations into such matters as the Board's decision of
what documents to disclose to IRP complainants.

- Concerning expert panels, the IRP is not intended to be a route to
appeal expert decisions on the grounds that they made the wrong policy
decision. The only grounds from an IRP case is that ICANN has acted
inconsistently with its bylaws. So the Board's concern here may rest on
a misunderstanding we can correct. However, substantive decisions are
not wholly excluded from IRP review: it should be possible to contest an
expert panel decision for reasons of bias (as in, self-interest), for
example, or for discrimination, or conflict with one of the other Core
Values and Fundamental Commitments. But if the expert panel has its own
appeals process, then that process must be followed, and IRP review is
only invocable if that process is not followed, or if it is flawed in a
manner that makes the process design itself inconsistent with the Bylaws.

- Concerning DIDP: I think it would be very hard to show that a failure
to disclose a document was inconsistent with the bylaws, unless that
disclosure was sought for the purposes of conducting an IRP case itself.
But the notion that ICANN should immunised against the possibility of
review in this area I consider to be quite unreasonable.
For documents sought for the IRP process itself, I would hope that the
IRP and/or the community will gradually evolve rules of procedure
explaining what documents must be disclosed in such cases. I would
certainly want the IRP to have charge of review over whether such rules
have been followed.

* More generally, I think we need to distinguish between the concepts of
that which is immune to IRP review, and that which is unlikely to
succeed in an IRP review.
- Some things (such as those above) might be unlikely to succeed except
in the case of egregiously unreasonable behaviour by ICANN (because
otherwise a complainant could not show that ICANN had acted
inconsistently with the Bylaws), but the possibility of review should
still be there, just in case.
- That is distinct from the IRP reviewing protocols or numbers
decisions; these are immune to IRP review because the change-control
authority does not lie with ICANN, and the IRP exists only to review
ICANN, not the IETF and the RIRs.

* Regarding the comments on paragraph 38. Noted. However I don't see
these future rules of procedure as something the CCWG produces now (or
before transition), but as something that continues later. Hence the
reference to the assistance of the Standing Panel, and to "updated in
the light of further experience". So I don't think we need to act on
these comments now.

Kind Regards,

Malcolm.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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