Burr, Becky Becky.Burr at neustar.biz
Wed Jan 20 19:42:41 UTC 2016

I am willing to address this issue either way here.  We just need clarification from the CWG as to its preference.  Either we create a stand-alone standard of review (in which case I need help articulating) or we say (in the Bylaws) that ICANN is responsible for ensuring that PTI gets it right, and allow challenges via the IRP on the basis of ICANN’s actions or inactions that fall below this standard.

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

From: <Schaefer>, Brett <Brett.Schaefer at heritage.org<mailto:Brett.Schaefer at heritage.org>>
Date: Wednesday, January 20, 2016 at 10:45 AM
To: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>, Avri Doria <avri at acm.org<mailto:avri at acm.org>>
Cc: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] PTI and the IRP

I agree and would add that DIDP appeals, although they potentially could involve a bylaws violation I suppose, would most often involve an independent review via IRP of the original decision to ensure that it was correct.

It seems that the IRP is being stretched in the borrowing. At the very least, there needs to be clarification that on how the IRP should handle these matters if it is the proper vehicle and, if it is not, what exactly should be created to handle these matters.

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Wednesday, January 20, 2016 12:36 AM
To: Avri Doria
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] PTI and the IRP


I agree with your analysis and share your concern.  The PTI IRP is fundamentally not a Bylaws issue (or more accurately -- fundamentally not a "violation of the Bylaws" issue).

Having "borrowed" the IRP in an attempt to fill the requirements of the CWG, we can't then pretend that the requirements of the CWG are coterminous with the general design of the IRP.  The CWG's requirements will require a specific statement of the basis on which a claim may be brought -- and it is a different basis than for other IRP claims.  This doesn't have to be long, but it does have to be right.

Conversely, if we are truly wedded to the idea that the IRP is a "bylaws court" and nothing more, then it can't be used to satisfy the CWG's requirement and we will need to do something else.  Personally, I don't endorse this position (though it does raise some concern about the ability of the panel to deal with PTI failures, if it is designed to be a bylaws court.  That said, I have sufficient faith in the skill of experienced arbitrators to be able to resolve a variety of disputes.)

Since this a requirement for the transition, we need to resolve this crisply, explicitly and appropriately.


On Wed, Jan 20, 2016 at 12:25 AM, Avri Doria <avri at acm.org<mailto:avri at acm.org>> wrote:

I am uncomfortable with closing the discussion of the new principles for
the IRP.  Since we decided not to create a new entity to serve the
requirements of the CWG but rather to make it a function of the IRP, we
need to make sure that the basis for the IRP is fit for purpose before
starting on its implementation.

The CWG calls for:

> 1.            *Appeal mechanism*. An appeal mechanism, for example in
> the form of an Independent Review Panel, for issues relating to the
> IANA functions.  For example, direct customers with non-remediated
> issues or matters referred by ccNSO or GNSO after escalation by the
> CSC will have access to an Independent Review Panel. The appeal
> mechanism will not cover issues relating to ccTLD delegation and
> re-delegation, which mechanism is to be developed by the ccTLD
> community post-transition.

I do not see how to define this function in terms of By Laws alone as By
Laws have little to say about negotiated SLAs and the  customers' or CSC
complaints.  Perhaps it can be done by changes to some of the By Laws,
but I do not see us as having scoped out what those changes need to be.

So until such time as we have dealt the the policy issues of filling the
CWG's requirements, I would like to register a personal caution, and
thus an objection, to closing the discussion of the basis and standing
for IRP appeals.  I do not believe this is merely an implementation
issue.  At least not yet.


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Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
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