[WP2] [independent review] Independent Review
Edward Morris
egmorris1 at toast.net
Fri Apr 17 01:13:09 UTC 2015
I, too, question the relevance of deep technical knowledge on the standing
panel. There have been fourteen IRP's filed to date and none of them seem
to have required intensive technical expertise. The new IRP will be dealing
with a broader range of questions, at least I hope it will, but I have no
reason to expect it will suddenly become a forum dealing to any great
extent with technical disputes. Knowledge of procedure, precedence and,
perhaps, a bit of a background in i.p. law all are likely to be of greater
value to the standing panel.
Best,
Ed
On Thu, Apr 16, 2015 at 9:15 PM, Burr, Becky <Becky.Burr at neustar.biz> wrote:
> I am adding a list of questions to the template we reviewed in Istanbul
> and will include this as something on which we are seeking community
> input. Increasing the diversity of the requisite skill set will increase
> the size of the standing panel. Clearly, the panelists must have a good
> technical baseline understanding of the DNS, and the
> interest/aptitude/comfort to deal with technical issues, and technical and
> other expertise needs to be available to the panel in appropriate cases,
> e.g., in cases where the question turns on whether an action or inaction
> falls within ICANN’s mission statement. But to the extent we are focused
> on the Commitments and Core Values, which are largely due process oriented,
> how much technical expertise is required?
>
> FWIW, some of my best friends are hard core techies -;
>
> J. Beckwith Burr
>
> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
>
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>
> Office: + 1.202.533.2932 Mobile: +1.202.352.6367 /
> becky.burr at neustar.biz / www.neustar.biz
>
> From: Paul Twomey <Paul.Twomey at argopacific.com>
> Date: Thursday, April 9, 2015 at 5:14 PM
> To: "Perez Galindo, Rafael" <RPEREZGA at minetur.es>, Becky Burr <
> becky.burr at neustar.biz>, Paul Rosenzweig <
> paul.rosenzweig at redbranchconsulting.com>
> Cc: "wp2 at icann.org" <wp2 at icann.org>, "wp2-independentreview at icann.org" <
> wp2-independentreview at icann.org>
> Subject: Re: [WP2] [independent review] Independent Review
>
> Becky (and team)
>
> I have been following this area and your excellent considerations for some
> time. (And have been commenting outside on the need to a standing, high
> level Independent Review mechanism -
> https://ourinternet.org/#publications/legal-mechanisms-for-governing-the-transition-of-key-domain-name-functions-to-the-global-multi-stakeholder-community
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__ourinternet.org_-23publications_legal-2Dmechanisms-2Dfor-2Dgoverning-2Dthe-2Dtransition-2Dof-2Dkey-2Ddomain-2Dname-2Dfunctions-2Dto-2Dthe-2Dglobal-2Dmulti-2Dstakeholder-2Dcommunity&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=fldCNBCE0oVyuPByj_QZYfW84LsIgP-6kOWrhagdE10&s=qTNI-gxl1LZrdV1zJ55ugHoeEoXX0K6QwfD7yh4kFR8&e=>
> )
>
> One question you pose on the chart is the required skill set. I think
> that this should be more than just senior legal. Having watched the
> community for 18 years, it strikes me that an ICANN reviewer has to be able
> to understand and address five arenas/communities: technical, civil
> society, business, diplomatic and regulatory. While lawyers and public
> policy experts can achieve this, and be recognized by others as having key
> skills, I have found that there is great benefit with mixing senior
> technical people who not only bring a technical educational value, but
> also, frankly, are more likely to gain the esteem of the hard-core
> technical community (who for some reason do not have high regard for
> lawyers, etc.... ) It has certainly been of benefit at the Board.
>
> Best
>
> Paul
>
>
> --
> Dr Paul Twomey
> Managing Director
> Argo P at cific
>
> US Cell: +1 310 279 2366
> Aust M: +61 416 238 501
> www.argopacific.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.argopacific.com&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=fldCNBCE0oVyuPByj_QZYfW84LsIgP-6kOWrhagdE10&s=AJE2JpcoTL6l9X3p0opzbrNt14gMKsBGMYZvHsX20Gc&e=>
>
>
>
>
>
> On 4/8/15 6:54 PM, Perez Galindo, Rafael wrote:
>
> Thank you Becky for your prompt answer.
>
>
>
> Becky that is exactly what I meant, I used the word “potentially” but I
> guess that “prospectively” is even better for native speakers. Your
> explanation of the issue is excellent and of course the prospectively
> harmed part has to show and demonstrate the merits of its case, with an aim
> to narrow down who could have a standing.
>
>
>
> Regards
>
>
>
> Rafael
>
>
>
>
>
>
>
> *De:* Burr, Becky [mailto:Becky.Burr at neustar.biz <Becky.Burr at neustar.biz>]
>
> *Enviado el:* martes, 07 de abril de 2015 20:02
> *Para:* Paul Rosenzweig; Perez Galindo, Rafael
> *CC:* wp2 at icann.org; wp2-independentreview at icann.org
> *Asunto:* Re: [WP2] [independent review] Independent Review
>
>
>
> Apologies for not sending updated documents around after our call, will do
> so shortly.
>
>
>
> As to “potentially affected” parties, I think we are really talking about
> “prospectively affected” parties. In other words, if the Board takes an
> action, the party in question will be materially or significantly and
> adversely affected. In that case, a prospectively affected party would
> have standing to seek relief prior to an action or decision to the extent
> the prospective harm is ‘material’ or ‘significant’ and the normal standard
> for pre-emptive or injunctive relief is met. This would require a showing
> on the part of the prospectively affected party that they are likely to win
> an IRP on the merits and that there is no adequate remedy once an action or
> decision has been taken. Putting aside the merits of any particular case,
> I believe that this approach has been adopted in at least one ongoing IRP.
>
>
>
>
>
> J. Beckwith Burr
>
> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
>
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>
> Office: + 1.202.533.2932 Mobile: +1.202.352.6367 /
> becky.burr at neustar.biz / www.neustar.biz
>
>
>
> *From: *Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
> *Date: *Tuesday, April 7, 2015 at 1:26 PM
> *To: *"'Perez Galindo, Rafael'" <RPEREZGA at minetur.es>, Becky Burr <
> becky.burr at neustar.biz>
> *Cc: *"wp2 at icann.org" <wp2 at icann.org>, "wp2-independentreview at icann.org" <
> wp2-independentreview at icann.org>
> *Subject: *RE: [WP2] [independent review] Independent Review
>
>
>
> Dear Rafael
>
>
>
> How broadly, or narrowly, would you define “potentially affected.” After
> all, a decision regarding, say, a ccTLD has the potential to affect
> everyone in that national TLD. I agree with you that some degree of
> preemptive action is necessary, but we don’t want to write it so broadly
> that every citizen of the world has a stake …
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> Skype: paul.rosenzweig1066
>
> Link to my PGP Key
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_index.php-3Foption-3Dcom-5Fcontent-26view-3Darticle-26id-3D19-26Itemid-3D9&d=AwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=2v5Gu5nq6B4snaTsGoYwO-ZRZkkjgvtphO28znYHID8&s=rWqyyb84zCKXOSpgA2WOaCafFXTnFIdDStjg5LfuzS0&e=>
>
>
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_events_us15_register-3Futm-5Fsource-3Dinhouse-26utm-5Fmedium-3Demail-26utm-5Fcampaign-3Dsignature-2Dus2015&d=AwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=2v5Gu5nq6B4snaTsGoYwO-ZRZkkjgvtphO28znYHID8&s=Cj1LPZMzssyKBR8dGniMCXtIAp2f-DI24NBbUqe5gOw&e=>
>
>
>
> *From:* Perez Galindo, Rafael [mailto:RPEREZGA at minetur.es
> <RPEREZGA at minetur.es>]
> *Sent:* Tuesday, April 7, 2015 8:08 AM
> *To:* Burr, Becky
> *Cc:* wp2 at icann.org; wp2-independentreview at icann.org
> *Subject:* Re: [WP2] [independent review] Independent Review
>
>
>
> Dear Becky and all,
>
>
>
> Sorry if I am missing out on any discussions taking place at the moment,
> but I am not receiving emails from the WP2 regarding the final architecture
> for the IRP and I was just wondering if I am off track… Are there any
> outcomes from a meeting I understood was taking place in Washington?
>
>
>
> Apologies for any overlap or if this has already been discussed but I
> would like to make some points on the latest version of the IRP template
> arising from Istanbul:
>
>
>
> - Most importantly, we deem it essential that the standing scope
> encompasses not only materially affected persons or entities, but also *potentially
> affected* ones. The rationale behind this proposal is that there are
> instances in which the harm is only done AFTER a decision that violates the
> Bylaws or Articles of Incorporation is made. A typical example would be the
> decision to delegate a new gTLD that has a high likelihood of harming
> determined interests or rights or users. In this case, the potentially
> harmed communities should be in a position to file an IRP BEFORE the harm
> is done, thus avoiding the commission of the violation. Hence, sometimes it
> makes no sense to wait till irreversible damage is caused, and a provision
> envisaging this situation should be put in place, expanding the scope of
> legitimacy to file an IRP to situations in which it is demonstrated that a
> severe harm can potentially be done.
>
>
>
> - A deadline for lodging challenges should be set in the rules
> of procedure. In the current IRP, it is 1 month. We propose that it is
> fixed at a minimum of *2 months* in general, and no deadline in cases of
> inaction of the Board. These same periods could be set as well for the
> Reconsideration Request process.
>
>
>
> - It should not be allowed that any member of any ICANN’s
> community of interest be part of the Panel, of course not as a member, and
> either not as supporting staff or consultant. In addition, the appointment
> should be made by the community, not by the Board.
>
>
>
> Looking forward to continuing the discussion
>
>
>
> Best
>
>
>
> Rafael
>
> GAC_SPAIN
>
>
>
> *De:*wp2-bounces at icann.org [mailto:wp2-bounces at icann.org
> <wp2-bounces at icann.org>] *En nombre de *Burr, Becky
> *Enviado el:* martes, 17 de marzo de 2015 17:16
> *Para:* Paul Rosenzweig; 'Mathieu Weill'
> *CC:* wp2 at icann.org; wp2-independentreview at icann.org
> *Asunto:* Re: [WP2] [independent review] Independent Review
>
>
>
> If the panel decides, it has to have a standard for decision making –
> I.e., one of the two approaches described by Paul below. I’m slightly more
> comfortable with the first model, but I understand that many parts of the
> world do operate on the loser pays model.
>
>
>
> J. Beckwith Burr
>
> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
>
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>
> Office: + 1.202.533.2932 Mobile: +1.202.352.6367 /
> becky.burr at neustar.biz / www.neustar.biz
>
>
>
> *From: *Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
> *Date: *Tuesday, March 17, 2015 at 10:12 AM
> *To: *'Mathieu Weill' <mathieu.weill at afnic.fr>
> *Cc: *"wp2 at icann.org" <wp2 at icann.org>, "wp2-independentreview at icann.org" <
> wp2-independentreview at icann.org>
> *Subject: *Re: [independent review] [WP2] Independent Review
>
>
>
> Absolutely possible. But you still have to have a background rule. One
> that says “each party bears its own costs” except if the IRP finds the
> filing “vexatious or frivolous or in bad faith” is very different from one
> that say “loser pays for the costs” unless the IRP finds the filing “in
> good faith or with a substantial colorable basis”
>
>
>
> I have separately prposed to WP2 the first model, which more fits my own
> preferences – but the second is equally legitimate as a policy choice.
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> Skype: paul.rosenzweig1066
>
> Link to my PGP Key
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_index.php-3Foption-3Dcom-5Fcontent-26view-3Darticle-26id-3D19-26Itemid-3D9&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSmuXs&s=Y0lRU5B_Dj1HkbEy70y3gTVmI7B1IcP1OZie1fdc7TQ&e=>
>
>
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_events_us15_register-3Futm-5Fsource-3Dinhouse-26utm-5Fmedium-3Demail-26utm-5Fcampaign-3Dsignature-2Dus2015&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSmuXs&s=jiYeLAWOOpHXjasPICgYzUmWglK13Db-tlGBpMnW3B4&e=>
>
>
>
> *From:* Mathieu Weill [mailto:mathieu.weill at afnic.fr
> <mathieu.weill at afnic.fr>]
> *Sent:* Tuesday, March 17, 2015 9:54 AM
> *To:* Paul Rosenzweig
> *Cc:* Jonathan Zuck; McAuley, David; Grace Abuhamad;
> wp2-independentreview at icann.org; wp2 at icann.org
> *Subject:* Re: [independent review] [WP2] Independent Review
>
>
>
> Hi Paul,
>
>
>
> You are right to distinguish cost and price here. ICANN could support most
> of the cost while the price might be lower than cost.
>
>
>
> Concerning the alternatives you describe below, could there also be an
> option for the panel to decide upon who should carry what share of the
> cost, as part of its decision and based on the merits of the case ?
>
>
>
> Best,
>
> Mathieu Weill
>
> ---------------
>
> Depuis mon mobile, désolé pour le style
>
>
> Le 17 mars 2015 à 14:32, "Paul Rosenzweig" <
> paul.rosenzweig at redbranchconsulting.com> a écrit :
>
> I am not sure I agree that cost is that big an issue. ICANN has a large
> surplus right now and makes a handsome “profit” from the sale of domains.
> It can fund the bureaucracy quite readily, especially since it will be
> virtual. 5 salaries for experts; one dedicated staffer to manage the
> process and lots of computer time.
>
>
>
> Much more difficult is permitting ready access to the review process
> without encouraging frivolous suits. All systems of law have that problem
> and we are not going to solve it here since nobody else has ever solved it
> before. You can either a) favor access by having no assessment of costs to
> losers (except in egregious cases); or b) favor dissuading frivolity with a
> loser pays system … We’ve studied this for years and I can’t think of any
> other answer. It’s a fundmentatl policy choice. Best answer I know is a
> modest filing fee that is waivable by the IRP for good cause shown …
>
>
>
> P
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> Skype: paul.rosenzweig1066
>
> Link to my PGP Key
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_index.php-3Foption-3Dcom-5Fcontent-26view-3Darticle-26id-3D19-26Itemid-3D9&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSmuXs&s=Y0lRU5B_Dj1HkbEy70y3gTVmI7B1IcP1OZie1fdc7TQ&e=>
>
> <image003.jpg>
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_events_us15_register-3Futm-5Fsource-3Dinhouse-26utm-5Fmedium-3Demail-26utm-5Fcampaign-3Dsignature-2Dus2015&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSmuXs&s=jiYeLAWOOpHXjasPICgYzUmWglK13Db-tlGBpMnW3B4&e=>
>
>
>
> *From:* Jonathan Zuck [mailto:JZuck at actonline.org <JZuck at actonline.org>]
> *Sent:* Monday, March 16, 2015 11:29 AM
> *To:* McAuley, David; Grace Abuhamad; wp2-independentreview at icann.org;
> wp2 at icann.org
> *Subject:* Re: [WP2] Independent Review
>
>
>
> Agree. To me, cost is a more serious issue than Presidential appointment
> which I believe can be mitigated through term management similar to federal
> judges.
>
>
>
> *From:*wp2-bounces at icann.org [mailto:wp2-bounces at icann.org
> <wp2-bounces at icann.org>] *On Behalf Of *McAuley, David
> *Sent:* Monday, March 16, 2015 9:18 AM
> *To:* Grace Abuhamad; wp2-independentreview at icann.org; wp2 at icann.org
> *Subject:* Re: [WP2] Independent Review
>
>
>
> Thanks Becky for sending the link and thanks as well to David Post, David
> Maher, Bruce Tonkin, and others who have weighed in on this so
> thoughtfully. .
>
>
>
> Like some, I question the CEO selection provision for the review panel.
> But the good news, IMO, is that there seems to be widespread support for a
> review panel mechanism that takes on issues of substance as well as process
> – although the heavy lifting detail work lies ahead.
>
>
>
> One particular detail that we will have to keep in mind is the potential
> cost of participating in a review panel – the ability to air a complaint
> within reasonable cost. The forum suggested in the article - made up of
> five “outstanding legal experts” who have a commensurate salary and office
> - sounds like an expensive bureaucracy in the formation stage and we need
> to be careful here.
>
>
>
> And along with cost, we should also pay careful attention to limitations -
> disincentives to frivolous or inconsequential claims – a delicate balance
> to be struck.
>
>
>
> David McAuley
>
>
>
> *From:*wp2-independentreview-bounces at icann.org [
> mailto:wp2-independentreview-bounces at icann.org
> <wp2-independentreview-bounces at icann.org>] *On Behalf Of *Grace Abuhamad
> *Sent:* Saturday, March 14, 2015 12:28 AM
> *To:* wp2-independentreview at icann.org; wp2 at icann.org
> *Subject:* [independent review] FW: Independent Review
>
>
>
> *Dear all, *
>
> *Becky's email was sent to the bounce list, so I'm resending on her
> behalf. *
>
> *--Grace*
>
>
>
> -----
>
>
>
> http://stlr.org/download/volumes/volume14/WeberGunnarson.pdf
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__stlr.org_download_volumes_volume14_WeberGunnarson.pdf&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSmuXs&s=13_e2O5o3-2boXocOkHmJo-yvHNpJ_50IpzSCxzrrBY&e=>
>
>
>
> I’ve provided a link, above, to an article written by Rolf Weber and Shawn
> Gunnarson in 2012 entitled “A Constitutional Solution for Internet
> Governance.” The authors call for the following reforms for ICANN:
>
>
>
> 1. *A written charter:* A charter or constitution that restricts
> ICANN to actions that the community has already approved, distributes
> authority through law and requires it to be exercised through or under law;
> separates power appropriately; enumerates and constrains ICANN’s powers;
> and establishes fundamental rights for those governed by ICANN – this
> corresponds, I think, to the Mission Statement and Core Values
> [Compact/Commitment, whatever] that we are working on.
> 2. Establish an independent constitutional court (the authors call it
> a Review Panel) with narrow powers to review ICANN actions and to reverse
> those actions if they are inconsistent with the written charter. The
> authors propose that the panel consist of 5 highly regarded legal experts
> who:
>
>
> - Have no relationship with ICANN that creates a conflict of interest
> - Serve for a fixed term that cannot be shortened absent agreement
> by the community that the position is being used for personal gain
> - Receive a guaranteed salary that cannot be reduced during the
> term.
>
> With respect to selecting the members of the independent judiciary, they
> propose that the CEO would appoint the members subject to approval by
> ICANN’s “members.” This is similar to the way Supreme Court justices are
> selected in the US (nominated by the president and confirmed by the Senate)
> and I suspect in may other countries as well.
>
>
>
> Questions –
>
>
>
> - What do you think of this approach?
> - Would/should a “constitutional court” of this type need to be in
> addition to a reformed independent review process conducted by arbitrators
> drawn from a standing panel?
> - What credentials would the panelists need to have to be appointed?
> - Should there be some sort of process for vetting nominees? For
> example, the American Bar Association has a standing panel that reviews and
> rates judicial nominees.
> http://www.americanbar.org/groups/committees/federal_judiciary.html
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.americanbar.org_groups_committees_federal-5Fjudiciary.html&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSmuXs&s=PLHM4DUUz01hhbbTj2q012j82RfbZOHtL_LrnowuDwo&e=>
> - Anything else?
>
>
>
>
>
>
>
> J. Beckwith Burr
>
> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
>
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>
> Office: + 1.202.533.2932 Mobile: +1.202.352.6367 /
> becky.burr at neustar.biz / www.neustar.biz
>
> _______________________________________________
> wp2-independentreview mailing list
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