[CCWG-ACCT] time limits on mission challenges

[Malcolm Hutty]

On 27/09/2016 15:52, Silver, Bradley wrote:
> All,
> 
>  
> 
> I wanted to weigh in because it appears that the discussion is veering
> towards an acceptance of a six month period as a possible time
> limitation for bringing challenges to ICANN exceeding the bounds of its
> mission.  Please correct me if I’ve missed anything that’s already been
> said that would address my questions below.
>  
> 
> If there is a time limitation, does this mean if no-one brings a
> challenge within the specific time, that such a challenge is barred
> forever more?  So for better or worse, that particular policy or
> practice is then effectively grandfathered into the mission?

Bradley,

That is indeed the concern. But whether or not grandfathering occurs
depends on which of competing propositions is accepted. The most
important distinction is whether the time limit runs from the date of
the injury, or from the date of the adoption of the policy. This is the
question under discussion right now.

If we set the time limit relative to the date of the injury then there
is no grandfathering; a different person injured by the same policy at a
later date could challenge it on a subsequent occasion.

If we set the time limit relative to the adoption of the policy, then
all the points you make become serious concerns.

>  If so,
> then to avoid the possibility of mission creep, we should be sure that
> the time limitation for a claim is sufficiently long and/or flexible to
> take into account a number of factors, including the following:
> 
> ·         The length of time between the board’s adoption of a policy,
> its implementation and the time taken for parties to assess the impact
> thereof. (This could be 5 or more years).
> 
> ·         The possibility that implementation of a policy or practice
> may evolve over a period of time in a way that only later raises
> questions about its link to ICANN’s Mission. 
> 
> ·         The later emergence of facts or circumstances which cast the
> practice/policy in a new light, such that its compliance with the
> mission are called into question. 
> 
> ·         The possibility that harm or injury may be difficult to show
> without evidence gathered over a significant period of time (a year or
> more) to demonstrate its impact.

These are all excellent points, and I think they convincingly
demonstrate why the time limit ought run from the date of injury and not
from the date of adoption of the policy.

More than that, the Bylaws promise that a person injured by ICANN acting
inconsistently with the Bylaws must have an opportunity to challenge
ICANN in the IRP. If we restrict challenges so that they must be made
within a short time of the action, regardless of whether the injury has
yet occurred, then we effectively take away that right. I don't think
that the Implementation Team is even empowered to do that, without
changing the Bylaws again.

> ·         The possibility that something may be incompatible with
> ICANN’s mission, and yet not cause any direct injury.  (Is the injury a
> fundamental requirement for a mission challenge?  Where is the source
> for that requirement?)

The source for that requirement is the rule, which is established in the
Bylaws, that standing to bring a complaint before the IRP is given only
to people who have been materially affected by the action complained about.

There is an exception: the Empowered Community automatically has
standing, and does not need to demonstrate injury. But for the Empowered
Community to bring an IRP case requires a high degree of community
consensus, which may not always be available.

Malcolm.

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