[CCWG-ACCT] time limits on mission challenges

Wed Sep 28 18:12:11 UTC 2016

Agreed.  I think a year is more appropriate than six months, but six months
is far better than the current rules.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.com

On Wed, Sep 28, 2016 at 7:51 AM, Mueller, Milton L <milton at gatech.edu>
wrote:

> 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
> <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
> <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>; Mike Rodenbaugh <mike at rodenbaugh.com>
> *Cc:* CCWG Accountability <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 <psc at vlaw-dc.com>]
> *Sent:* Monday, September 26, 2016 1:46 PM
> *To:* Mike Rodenbaugh <mike at rodenbaugh.com>; Mueller, Milton L <
> milton at gatech.edu>
> *Cc:* CCWG Accountability <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 <202-559-8597>/Direct*
>
> *202-559-8750 <202-559-8750>/Fax*
>
> *202-255-6172 <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
> <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>
> 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]
> *Sent:* Saturday, September 24, 2016 9:26 AM
> *To:* 'Kavouss Arasteh' <kavouss.arasteh at gmail.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
>
>
>
> 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
>
> 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
> <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@
> 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
>
> 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] *On Behalf Of *Phil
> Corwin
> *Sent:* Thursday, September 22, 2016 10:36 AM
> *To:* 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
>
>
>
> 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 <202-559-8597>/Direct*
>
> *202-559-8750 <202-559-8750>/Fax*
>
> *202-255-6172 <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
> <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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