[CCWG-ACCT] time limits on mission challenges

[Mueller, Milton L]

Yes, Bradley
Paul and I seem to be in agreement with you. Your enumeration of the problems associated with time limits mirror many of the concerns  I raised in my initial message. I like the way you clarify the danger that expiration of a time limit would effectively make something presumptively “within mission” – this is a one-way valve that can only result in mission creep if we are not careful how we define the beginning and end of the time period and what triggers it. We might want to extend it to a year.

I agree with you also that exceeding the mission may be a harm in and of itself. The idea that someone has to prove harm to themselves to make a mission-based challenge has always struck me as a severe limitation. On the other hand, it does protect ICANN from frivolous use of the challenge; it is clear that mission challenges could be exploited to tie things up.


Dr. Milton L Mueller
Professor, School of Public Policy<http://spp.gatech.edu/>
Georgia Institute of Technology
Internet Governance Project
http://internetgovernance.org/




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?  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.

·         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?)

Thanks,

Bradley Silver

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 Chris LaHatte
Sent: Tuesday, September 27, 2016 12:09 AM
To: Mueller, Milton L; Phil Corwin; Mike Rodenbaugh
Cc: CCWG Accountability
Subject: Re: [CCWG-ACCT] time limits on mission challenges

For what it’s worth, the Ombudsman Framework has a 60 day period to make complaints. We haven’t always been rigid on that, but we are perhaps different from the Recon and IRP

Chris LaHatte
Consultant to the Ombudsman

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: Monday, September 26, 2016 1:53 PM
To: Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>; Mike Rodenbaugh <mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>>
Cc: CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] time limits on mission challenges

OK, two eminent lawyers have suggested 6 months, I could go with 6 months

From: Phil Corwin [mailto:psc at vlaw-dc.com]
Sent: Monday, September 26, 2016 1:46 PM
To: Mike Rodenbaugh <mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>>; Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>>
Cc: CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: RE: [CCWG-ACCT] time limits on mission challenges

Agreed Mike, and I was writing the exact same suggestion just as yours came in.

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

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 Mike Rodenbaugh
Sent: Monday, September 26, 2016 1:45 PM
To: Mueller, Milton L
Cc: CCWG Accountability
Subject: Re: [CCWG-ACCT] time limits on mission challenges

I agree with Milton, but think the time should be even longer, six months is still a very short and rare "statute of limitations" for any legal claim.  And I don't see what harm could occur even if it was one year.  But six months seems a good compromise.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.com[rodenbaugh.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__rodenbaugh.com&d=DQMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=OJJ-3XlQJKpXtEY3UR7ohcayShqk50XmpqWo8QluxLE&m=nveEKZc5KU_ULQ5bFzG8JZfb5XdQiI_hoIqxiFynGxs&s=iPqNfUxt9mJ3tyXhiaPK7KGKrP0aFeveT86KaH-3JVU&e=>

On Mon, Sep 26, 2016 at 9:07 AM, Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>> wrote:
Date of injury could occur at any time after a policy is passed. I would favor that as the marker. I would favor 3-4 months after date of injury as the time limit for filing a claim. I see no reason to have short time limits on time to file. People need to consult with lawyers, assess their damages, etc. No important policy objective is gained by limiting that time period to 45 days, relative to two or three months.


Dr. Milton L Mueller
Professor, School of Public Policy[spp.gatech.edu]<https://urldefense.proofpoint.com/v2/url?u=http-3A__spp.gatech.edu_&d=DQMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=OJJ-3XlQJKpXtEY3UR7ohcayShqk50XmpqWo8QluxLE&m=nveEKZc5KU_ULQ5bFzG8JZfb5XdQiI_hoIqxiFynGxs&s=gd-pEnE5adaKoifABIcFGchTjC5mUis8T-AS9baVBPo&e=>
Georgia Institute of Technology
Internet Governance Project
http://internetgovernance.org/[internetgovernance.org]<https://urldefense.proofpoint.com/v2/url?u=http-3A__internetgovernance.org_&d=DQMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=OJJ-3XlQJKpXtEY3UR7ohcayShqk50XmpqWo8QluxLE&m=nveEKZc5KU_ULQ5bFzG8JZfb5XdQiI_hoIqxiFynGxs&s=aBbodgpiNAXmpzyb1_HlNOgHWIHRBLzAe_2GDmO-1g4&e=>



From: Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>]
Sent: Saturday, September 24, 2016 9:26 AM
To: 'Kavouss Arasteh' <kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>>
Cc: 'Phil Corwin' <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>; 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 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
paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>
My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__redbranchconsulting.com_who-2Dwe-2Dare_public-2Dpgp-2Dkey_&d=DQMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=OJJ-3XlQJKpXtEY3UR7ohcayShqk50XmpqWo8QluxLE&m=nveEKZc5KU_ULQ5bFzG8JZfb5XdQiI_hoIqxiFynGxs&s=fHU-KNBQMSbqPtG6kVy3K7upmi5hU40NySdAJcLRYAA&e=>

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<mailto:paul.rosenzweig at redbranchconsulting.com>>
Cc: Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>; 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

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
paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>
My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/[redbranchconsulting.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__redbranchconsulting.com_who-2Dwe-2Dare_public-2Dpgp-2Dkey_&d=DQMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=OJJ-3XlQJKpXtEY3UR7ohcayShqk50XmpqWo8QluxLE&m=nveEKZc5KU_ULQ5bFzG8JZfb5XdQiI_hoIqxiFynGxs&s=fHU-KNBQMSbqPtG6kVy3K7upmi5hU40NySdAJcLRYAA&e=>

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.




Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597<tel:202-559-8597>/Direct
202-559-8750<tel:202-559-8750>/Fax
202-255-6172<tel:202-255-6172>/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

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



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