[CCWG-ACCT] time limits on mission challenges

Sat Sep 24 13:26:07 UTC 2016

I can’t speak for Milton, but my own view is that for allegations of a violation of the Mission limitation it should be a rule that sets a limit (45 or 60 days) from the date on which the right to bring an action accrues.  That, in turn, would be the later of the date of discovery or the date of injury (assuming that both knowledge of and injury by the alleged action are necessary components of standing to bring a suit).

Paul

Paul Rosenzweig

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From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com] 
Sent: Thursday, September 22, 2016 2:55 PM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
Cc: Phil Corwin <psc at vlaw-dc.com>; Mueller, Milton L <milton at gatech.edu>; MSSI Secretariat <mssi-secretariat at icann.org>; CCWG Accountability <accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] time limits on mission challenges

Milton,

What time frame you are looking for?

Kavouss 

2016-09-22 20:40 GMT+02:00 Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com> >:

The purpose of repose is certainty.  But the purpose of mission-based limitations on ICANN’s ability to act are far more fundamental values involving the constraint on the corporation.  I, too, left the room early, but had I been present I would have voiced opposition to an absolute limitations period that does not have a “discovery” or “effect” re-opener.  It is entirely possible, given standing principles, for there to be a policy that has no effect on an adversely effected party for longer than 2 years after adoption.  An absolute bar would prevent the correction of that foundational error.  

I can even see a statute of limitations for issues not relating to the violation of core mission restrictions – but if we adopt a bar to action that does not allow for initiation upon discovery of the alleged error, we encourage concealment.  I’m with Milton and Phil on this one

Paul

Paul Rosenzweig

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From: accountability-cross-community-bounces at icann.org <mailto: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 Phil Corwin
Sent: Thursday, September 22, 2016 10:36 AM
To: Mueller, Milton L <milton at gatech.edu <mailto:milton at gatech.edu> >; MSSI Secretariat <mssi-secretariat at icann.org <mailto:mssi-secretariat at icann.org> >; CCWG Accountability <accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] time limits on mission challenges

I think this is a valid point –

My view is that IF there is to be a timer (which I do not accept), the timer has to start from the specific application of the policy to affected individuals, not with its passage or implementation. 

While still considering whether there should be any “statute of limitations” or “laches”-like time restrictions on the bringing of IRP challenges, certainly the clock should start running from the moment that actual harm is manifest, rather than from the time of adoption of a policy at which point the negative effect may be completely hypothetical or even unforeseeable.

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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 Mueller, Milton L
Sent: Thursday, September 22, 2016 10:22 AM
To: MSSI Secretariat; CCWG Accountability
Subject: [CCWG-ACCT] time limits on mission challenges

Hello,

I had to leave the call early before the time limits on the IRP challenges were discussed. 

I am a bit surprised, even shocked by the willingness of some people to impose strict limits on IRP challenges based on mission limitations. I cannot conceive of what the US or EU governments would be like if legal challenges to transgressions of fundamental rights had to conform to time limits. Help me understand this.

I understand the argument about “finality” but I think people who make that argument are fundamentally misunderstanding what the mission limitations and IRP challenges are for and how they should function. 

ICANN policies easily take 2-3 years just to be fully implemented. The effects of mission-exceeding policies may not be actually felt by individuals or companies for 3, 4 or 5 years after they are passed. It is also possible that a policy that was passed and seems to be within the mission at the time it was passed, will later be applied in a way that shows that it can be used to exceed mission limitations. 

So what triggers this 2 year time limit? When does the clock start? Does it start with the _passage_ of the policy in the first place? Does it start with _implementation_? Does it start with the specific action or _application_ of the policy that results in the harm? At the very least, this needs to be clarified. My view is that IF there is to be a timer (which I do not accept), the timer has to start from the specific application of the policy to affected individuals, not with its passage or implementation. 

I think the misunderstanding that I saw in the notes is based on the idea that mission-based challenges will occur just after we _pass_ a policy. So people arguing for “finality” as saying they want it to be clear whether a policy is in effect or not. I understand this argument, but since mission limitation challenges are based on harm done to individuals, we have to talk of time limits in the context of when and where they are actually applied to individuals, and we have to give plenty of time for that harm to manifest itself.

If, for example, you modify the UDRP in a way that turns out to enable abuse by parties who want to censor web sites, you can’t start a 2-year timer when the policy is passed or implemented, you have to start it when someone takes an action that effectively censors someone by applying the policy to their domain. If you don’t do that, the whole system could be gamed by the abusers simply waiting out the 2 year time limit and exploiting the policy after it expires.

I also think we should be able to object to a policy as transgressing mission limitations when it is passed, just as in liberal democracies one can mount a legal challenge to a law as being unconstitutional before it actually goes into effect. But these kinds of appeals could legitimately have a time limit. 

Sorry I was not able to be there to make these points in person. 

Dr. Milton L. Mueller

Professor, School of Public Policy

Georgia Institute of Technology

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 MSSI Secretariat
Sent: Wednesday, September 21, 2016 3:41 PM
To: CCWG Accountability <accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org> >
Subject: [CCWG-ACCT] Notes, recordings, transcript for CCWG ACCT Meeting #5_21 September

Hello all,

The notes, recordings and transcripts for CCWG Accountability WS2 Meeting #5 – 20 September 2016 will be available here:   <https://community.icann.org/x/Pg6sAw> https://community.icann.org/x/Pg6sAw

A copy of the notes and action items may be found below.

Thank you.

With kind regards,

Brenda Brewer 

MSSI Projects & Operations Assistant

ICANN - Internet Corporation for Assigned Names and Numbers

 ACTION ITEMS:

1. Sub-group rapporteurs should advise in the next two weeks if they are a complex topic or not for purposes of scheduling as presented today. Rapporteurs to deliver their subgroups paper 3 weeks (October 5th) prior to Hyderabad outlining work.

2. Staff to review resources to see if there is a means to do interviews with leaders to assist in drafting positions. Sub-groups to advise staff if interested in this assistance. 

Notes:

Notes (including key elements of the chat):

Action Items:

*        Sub-group rapporteurs should advise in the next two weeks if they are a complex topic or not for purposes of scheduling as presented today

1.  Welcome/SOI

*        Thomas Rickert: No one on phone only. No new SOIs. Mathieu Weill and Leon Sanchez send their apologies.

2.  Update on US Senate Hearing on IANA Transition

*        Steve DelBianco: Theme for this call is keep calm and carry on. Background on current situation vs Congress. Two main factors for conservatives, Political 
positioning vs a liberal administration and the disrespect of Congress vs the transition from ICANN and NTIA. We should assume there will be at least a 9 
week delay in transition. We should not split the transition and accountability Bylaws.

*        David McAuley (RySG): We have a third witness on this call as well - Paul

*        Paul Rosenzweig: Thanks David -- I'm glad you noticed.  I don't have any need to intervene

*        Jorge Cancio (GAG Switzerland): oh, yes, Paul's point of view would also be useful

*        Greg Shatan: Intellectual Property interests have a variety of views.

*        Paul Rosenzweig: Jeff -- what would you like to know specifically -- I'll answer if I can

*        Jeff Neuman (Com Laude): Whether your assessment is the same as Steve's and whether you believe the outcomes are as Steve has said (in your view)

*        Brett Schaefer: Why shouldn't the accountability reforms be implemented now if the transition is delayed? The bulk of them are not dependent on the transition. Indeed, 
Bruce and Cherine said that that was the original plan in Morocco. What if the transition is delayed longer than 9 weeks? Are you prepared to wait forever for 
accountability implementation?

*        Julf Helsingius (GNSO NCPH NCA): I don't see any reason to wait.

*        Edward Morris: Agree with Brett and Julf.

*        Avri Doria: Do we really need to split the Bylaws why not just include a statement that the PTI stuff is not active until the transition.

*        Alan Greenberg: @Brett, there is a lot of work to do to split the Bylaws and that will take time.  I presume that will not be done until it is obvious the 
delay will be substantial. (> 9 weeks). But that is hypothesis on my part.

*        Paul Rosenzweig: Assuming it is part of the bill at all ...

*        Philip Corwin: Near-term Board implementation of accountability measures in face of a delay would be very helpful in ending the Congressional roadblock, while 
refusal to do so would add fodder to critics, IMHO

*        Edward Morris: PTI is roughly 5% of the new Bylaws.

*        Jeff Neuman (Com Laude): +1 Philip

*        Edward Morris: Good point Phil.

*        Matthew Shears: interesting point Phil

*        Alan Greenberg: Even a rider saying that parts are inoperable is a Bylaw change that must go through due process which is time-consuming.

*        Greg Shatan: @Milton, not denying that some elements of the IP community are playing a role; we saw one as a witness in the Hearing.  However, "IP interests" are 
not monolithic and there is a diversity of views, including support for the transition and for the multi-stakeholder model.

*        Philip Corwin: It's not just the IANA contract. NTIA must also end RZMA contract with Verisign so that it can contract directly with ICANN to perform root zone 
maintenance. Until that is in place ICANN would have no power to direct root zone changes.

*        Milton Mueller: Uncertain how we could continue with the transition if there is a new administration.

*        Steve DelBianco: many variables. We lose nothing by waiting until the election is done.

*        Edward Morris: Matt, I am not an expert on the "test drive" strategy. What I do know is that by delaying implementation we are playing into the hands of those 
who are opposing the transition.

*        Steve DelBianco: "test drive" makes no sense, since we will not "test"  our powers in  a few months or even a few years. Test Drive is equivalent to indefinite delay.

*        Matthew Shears: agree Steve

*        Milton Mueller: Yes, Ed, we need to get as many of the accountability reforms implemented as possible

*        Megan Richards, European Commission: @Steve -agree on ineffectual test drive.

*        Paul Rosenzweig: We lose nothing by waiting. Some of the opposition ICANN can do nothing about. We will know by the end of tomorrow if a new rider has been included or not.

*        Kavouss Arasteh: This is purely an American political issue and we should just move on.

*        Steve DelBianco: I agree with Paul, that events are moving this week.  Let's not game-out all the outcomes.  Let's get back to work on WS2

*        Steve DelBianco: WS2 implementation is part of the Board's commitment -- regardless of IANA contract

*        David McAuley: +1 @Steve

*        Edward Morris: Agree Steve

*        Avri Doria: Steve, rights, and after Sept 30, that commitment comes due.

*        Sivasubramanian M 2: Is the US budgetary allocation / NTIA spending on Transition so substantial that the US budgetary process becomes one of the obstructions?

*        Steve Delbianco: asper previous answer.

*        Thomas Rickert: We have done a great job so far and we should be patient and wait for the next few weeks. As to the possibility of a Test Drive - we have baked 
extensive consultation between the Board and the community which should obviate the need for the community to exercise the community power would make a test drive difficult.

3.  WS2 Planning and Timeline

*        Thomas Rickert: WS2 work plan.  There is light engagement by the community currently possibly due to the political uncertainty or fatigue. All items in WS2 are 
important and need to get done. We probably need to readjust our work plan to be able to deliver by the end of this FY17.

*        Karen Mulberry: (presentation of slides on Planning and progress). Public Consultations now planned in February and May 2017.

*        Kavouss Arasteh: We should not revisit what has been decided in WS1.

*        Sivasubramanian M: WS2 ought not to be time-limited earlier there was a discussion on Accountability as a continuous, ongoing process. 

*        Matthew Shears: a number of the issues under discussion are shaping the discussion on transition in the political sphere - these issues should be dealt with asap particularly if we are going to stagger from CR to CR

*        Edward Morris: Agreed Matt.

*        Niels ten Oever: @Siva - if we don't set deadlines this work will never end.

*        Mark Carvell UK GAC rep: Setting public comment periods intersessionally ahead of ICANN 58 and 59 respectively so that these meetings can initiate their finalization 
with maximum visibility for community is very sensible and practicable approach. 

*        Greg Shatan: It is important for us to recognize that the work in the sub-groups cannot advance if people do not participate. It is important to have active participation 
on the list and in Google docs between meetings.

*        Jorge Cancio (GAG Switzerland): I have a certain difficulty in planning too much ahead given the present uncertainty regarding the whole process

*        Avri Doria: it is hard to get people to focus on WS2 while WS1 remains only a possibility

*        Thomas Rickert: There is effectively little interest in most sub-groups currently. Most participants seem to be waiting to see something to comment on vs writing something.

*        Christopher Wilkinson: Agree we need more participation in the sub-groups, its not fatigue its just a mountain of work.

*        Avri Doria: Blank sheets of paper are an insurmountable problem for many people.

*        Jorge Cancio (GAG Switzerland): clear the overall situation and then we will be able to set clear deadlines

*        Mark Carvell (UK GAC rep): Much of WS2 are key enhancements and strengthening of the ICANN model that need to be developed anyway regardless of current political uncertainty.

*        Jeff Neuman: And there is a lot of other substantive work going on in the ICANN community at the moment. 

*        Jorge Cancio (GAG Switzerland): Jeff is right

*        Tijani Ben Jemaa: need to focus on what is required of WS2 by WS1.

*        Jorge Cancio (GAG Switzerland): I would be interested in having figures about the engagement from the community - volunteer fatigue is melting active participants to a reduced group.

*        Jeff Neuman: @jorge, and my fear is that the community has fatigue on the non-policy issues that ICANN is engaged in.  In other words, ICANN is supposed to coordinate substantive policy.....but we have spent the last 18 months+ on procedural accountability issues.  What good is an incredibly accountable organization if it cannot perform 
the substantive tasks it was formed to do.

*        Thomas Rickert: ACTION ITEM: Sub-group rapporteurs should advise in the next two weeks if they are a complex topic or not for purposes of scheduling as presented 
today. Unless rapporteurs can deliver a paper 3 weeks prior to Hyderabad we need to do something else. One option could be to do interviews with leaders by staff to 
write down positions? Minor support and no objection. This is optional and sub-groups that want to use this should advise us of this.

*        Jeff Neuman: Lots of substantive issues on ICANN's plate now:  RDDS/WHois, New gTLD Reviews, SUbsequent Procedures, Rights Protection Mechanisms, Privacy Proxy, Universal Acceptance / Awareness, etc.

*        Michael Karanicolas: Personally - I'd rather draft something myself than provide input by phone.

*        Niels ten Oever: Is there staff capacity for that? Sounds good to me! Would save a lot of time.

*        Sebastien Bachollet: I we agree to this schedule we should stick to it.

*        Thomas Rickert: No opposition to using the new project plan and ensure that we follow it.

4.  Update on Action Item from 30 August Plenary

*        Karen Mulberry: There are meetings on the 9th.

*        Sebastien Bachollet: the last day is for the new bodies only.

5.  WS2 Budget Update and Travel to ICANN 57 Hyderabad

*        Bernard Turcotte: (Presentation of slides)

*        Tijani Ben Jemaa: Rules are different at each embassy.

*        Alan Greenberg: Varies greatly from one country to another for an Indian visa - very complex.

*        Kavouss Arasteh: this visa caused issues for many. ICANN should come to some arrangements with countries it holds events in.

6.  WS1 WP-IOT-IOT (IRP Implementation Oversight Team)

*        Becky Burr: (Presentation of the slides). First issue is the application of subsequent modifications rules of existing IRPs.

*        Avri Doria: Support and explanation of some details regarding the alternative.

*        Kavous Arasteh: Normally rules are not retroactively applied - but in this case I would support this.

*        Jorge Cancio (GAG Switzerland): I'm not sure whether others feel the same, but without having some prior info in writing on the issues explained by Becky and 
Avri it is extremely difficult to follow.

*        Kavouss Arasteh: Jorge, yes ,it is difficult but the way it has been drafted is quite understandable

*        Jorge Cancio (GAG Switzerland): Thanks for that clarifications Becky and Thomas

*        David McAuley (RySG) 2: I was active in the sub-team discussions and this alternative seems a fair compromise of the positions stated. 

*        Becky Burr: Next is Deadline to file, There are several alternatives.

*        Jorge Cancio (GAG Switzerland): under the current rules there seems to be a short timeframe for filing, but it is only triggers if you have or should have 
awareness. In the new alt 2 24 months would be a hard stop: even if you have no clue you would not be able to file a dispute if you gain awareness afterwards...

*        Malcolm Hutty: The issue is that we have different disputes, originally there were only process disputes and claimants usually know very quickly if 
there is an issue. but under the new rules there are also claims vs ICANN following its own Bylaws which is different. As such Alternative 2 is not good. Would 
be ok for a fixed delay for procedural claims. The 45 days seems a very tight timeline - does this make sense for the EC to make a claim.

*        Chris Disspain: Malcolm, how do you ensure that folks do not take actions over time that make them effected so that they can bring a claim and could you 
give me an example of something that would require your formulation?

*        Chris Wilson: some statute of limitations for all claims makes sense. 

*        Steve DelBianco [GNSO - CSG]: Malcolm's point about the EC decision process is quite compelling

*        Greg Shatan: Agree with Chris, there needs to be some finality.

*        David McAuley: Have agreed that 45 days is too short but support Alternative 2. We need some finality.

*        Kavouss Arasteh: Malcolm, you said 45 days is too short. what time frame in your view is not short

*        Jorge Cancio (GAG Switzerland): on the other hand an absence of a statute of limitations weakens legal certainty

*        Alan Greenberg: @Malcom, what deadline for filing would you propose for a harm that is delayed?

*        Greg Shatan: I could see expanding the 45 days, at least for the EC.

*        Greg Shatan: I support Alternative 2.

*        Becky Burr: Please note that the 45 days is tolled once CEP is initiated, so as a practical matter you only need to signal. Any other views?

*        Alan Greenberg: Alos support Alternative 2 - there has to be finality.

*        Malcolm Hutty: If we are agreeing to a fixed time then we are doing something different from a court and is not compatible with the Bylaws. alternative depends 
on a watchful community but someone may not be harmed and therefore cannot file.

*        Kavouss Arasteh: Perhaps 24 months may be argued to be too long?

*        Chris Wilson: For sure!  But 2 years is a long time, IMO.

*        Chris Disspain: my preference would be fewer than 24 but I can accept it if that is the consensus view

*        Kavouss Arasteh: Could be change 24 by 12 months?

*        Chris Disspain: that would be better in my view Kavouss

*        Kavouss Arasteh: I have not seen in any analogous case putting such a long period like 24 months

*        Chris Disspain: all of these things are a balance and need to be both accommodating and workable

*        Becky Burr: but anyone could apply for a name, be denied, and challenge - so I’m not moved by the no standing - the potential lack of motivation is a legitimate concern.

*        David McAuley (RySG) 2: +1 @Chris

*        Greg Shatan: 24 months seems an acceptable compromise.

Kavous

*        s Arasteh: Supports alternative 2 but not more than 12 months.

*        David McAuley (RySG) 2: it is a difficult thing to calculate but the IoT seemed to think 24 months is right if alternative 2 is used

*        Chris Disspain: it is the members of the community to have to work most closely within the ICANN framework....especially the contracting parties...they are 
entitled to a degree of certainty about position so that they can get on with what they need to do

*        Greg Shatan: I think 24 months is appropriate.  I see calls for longer and shorter times, which indicates we got it right.

*        Becky Burr: Seem to be gravitating towards Alternative 2 with some time. third issue is Cross Examination of Witnesses at hearings.

*        David McAuley: Support alternative 1 strongly. The panel needs to be given a reasonably high bar to avoid trials each time.

*        Kavouss Arasteh: Prefer Alternative 2 but could live with Alternative 1.

*        Greg Shatan: do not really support any of these. If we have witnesses, we need to be able to cross examine.

*        Jorge Cancio (GAG Switzerland): If the role of the hearings gains weight it is important to also consider flexibilities as to venue and language

*        Edward Morris: Excellent point David. I also support alternative 1.

*        Becky Burr: Jorge, those issues will be decided going forward, not as part of the supplemental rules update

*        Mathieu Weill, ccNSO, co-chair: Agree Jorge, the very principle of witnesses and cross examination has implications on the ability to remain accessible to 
all and provide level playing field for non English speaking parties

*        Jorge Cancio (GAG Switzerland): thanks Mathieu - that's it - and the venue also plays a role

*        Becky Burr: No more inputs.

*	Thomas Rickert: Adjourned.

Documents

*         <https://community.icann.org/download/attachments/61607486/CCWG%20WS2%20Final%20v2%20Plenary%2020Sept2016.pdf?version=1&modificationDate=1474378727000&api=v2> CCWG WS2 Final v2 Plenary 20Sept2016.pdf

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