Notes-Recordings-Transcript links for STRESS TESTS Meeting #5 - 29 April
Dear all, The notes, recordings and transcripts for the CCWG Accountability Stress Tests Meeting # 5 on 29 April will be available here: https://community.icann.org/pages/viewpage.action?pageId=52895716 Action Items ACTION ITEM - Steve to draft paragraph that takes up three or four points that Mathieu identified ACTION - Steve to provide DIY text Notes These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript. 1 Review red text Red text on p 11 and 16 - Proposed measure to except ICANN from exceeding mission Proposed mission statement could be standard of review It would take reconsideration or IRP to trigger it. AGREEMENT - New text to be added quoting standard of review 2 Address Mathieu's edits (blue text) - P3 Stress Test # 9 Spilling Board would be a potential accountability mechanism but never regarded as useful one i.e. last resort AGREEMENT - OK with proposed text - p4 Stress Test #11 Suggestions to remove "mitigation", to use risk mitigation measures", to remove "preventive" AGREEMENT - risk mitigation -p7 Stress Test #21 AGREEMENT Ok with following edit "develop appropriate mechanism - p12 Stress test #13 Standing is available to community. Is term "appeal" appropriate? Suggestion to use reconsideration and IRPs We have not identified different standards of review --> Discourage different standards --> Would not recommend putting standards of review in WS1 work - Suggestion to remove sentence: standards of review may need to be ajdusted sentene and to include Mathieu's text - WS1 - WS2 or future Review panels? AGREEMENT - Remove sentence: standards of review may need to be ajdusted sentene and to include Mathieu's text. Frivolous and vexatious: match with what is in the proposal --> frivolous and abusive Conclusion cell Suggested text: Proposed measures would reduce risk by supermajority requirements and by dismissla of frivolous or abusive RR and IRPs Individual will have standing but expectation that people use it in way that is accountable to community - Proposal: Proposed measures would could increase risk of individuals paralyzing ICANN processes, which is mitigated by dismissal of frivolous or abusive RR and IRPs - Suggestion to use "overload" --> Continued usage may paralyze business, not just overload it --> Improperly impede/interfere AGREEMENT - Remove overload and use impede - Improved access to review and redress could allow indivdual to impede ICANN processes, though this is mitigated by dismissal of frivolous or abusive RR and IRPs 3. Consider adding management abstract paragraph ACTION ITEM - Steve to draft paragraph that takes up three or four points that Mathieu identified 4. To help manage public comment process, do it yourself guide to prevent additional stress-tests being added Do it yourself to guide current proposed and measures making it clear that community powers we are designing can not prevent external threat (hacker, earthquake etc). Suggestion to give example of specific concerns and show how that gets translated using buckets we have ACTION - Steve to provide DIY text
Dear all, Re: RfR and IRP stress test: 'frivolous' and 'abusive' are a very high bar. Most panelists would lean towards hearing a case if this is the threshold. Therefore these words will not be effective in deterring dilatory tactics. Something better is needed. Also, there are very few existing precedents. Until the pool of cases is large enough there will be many more cases. Suggest a larger number of panelists at the start, to decrease as the number of cases becomes less due to increased precedent. Best, J. Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 www.bigroom.ca On 29 April 2015 at 05:41, Brenda Brewer <brenda.brewer@icann.org> wrote:
Dear all,
The notes, recordings and transcripts for the *CCWG Accountability Stress Tests Meeting # 5 on 29 A*pril will be available here: https://community.icann.org/pages/viewpage.action?pageId=52895716 *Action Items*
ACTION ITEM - Steve to draft paragraph that takes up three or four points that Mathieu identified
ACTION - Steve to provide DIY text *Notes*
*These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.*
1 Review red text
Red text on p 11 and 16 - Proposed measure to except ICANN from exceeding mission
Proposed mission statement could be standard of review
It would take reconsideration or IRP to trigger it.
AGREEMENT - New text to be added quoting standard of review
2 Address Mathieu's edits (blue text)
- P3 Stress Test # 9
Spilling Board would be a potential accountability mechanism but never regarded as useful one i.e. last resort
AGREEMENT - OK with proposed text
- p4 Stress Test #11
Suggestions to remove "mitigation", to use risk mitigation measures", to remove "preventive"
AGREEMENT - risk mitigation
-p7 Stress Test #21
AGREEMENT Ok with following edit "develop appropriate mechanism
- p12 Stress test #13
Standing is available to community.
Is term "appeal" appropriate?
Suggestion to use reconsideration and IRPs
We have not identified different standards of review
--> Discourage different standards
--> Would not recommend putting standards of review in WS1 work
- Suggestion to remove sentence: standards of review may need to be ajdusted sentene and to include Mathieu's text
- WS1 - WS2 or future Review panels?
AGREEMENT - Remove sentence: standards of review may need to be ajdusted sentene and to include Mathieu's text.
Frivolous and vexatious: match with what is in the proposal --> frivolous and abusive
Conclusion cell
Suggested text: Proposed measures would reduce risk by supermajority requirements and by dismissla of frivolous or abusive RR and IRPs
Individual will have standing but expectation that people use it in way that is accountable to community
- Proposal: Proposed measures would could increase risk of individuals paralyzing ICANN processes, which is mitigated by dismissal of frivolous or abusive RR and IRPs
- Suggestion to use "overload"
--> Continued usage may paralyze business, not just overload it
--> Improperly impede/interfere
AGREEMENT - Remove overload and use impede - Improved access to review and redress could allow indivdual to impede ICANN processes, though this is mitigated by dismissal of frivolous or abusive RR and IRPs
3. Consider adding management abstract paragraph
ACTION ITEM - Steve to draft paragraph that takes up three or four points that Mathieu identified
4. To help manage public comment process, do it yourself guide to prevent additional stress-tests being added
Do it yourself to guide current proposed and measures making it clear that community powers we are designing can not prevent external threat (hacker, earthquake etc).
Suggestion to give example of specific concerns and show how that gets translated using buckets we have
ACTION - Steve to provide DIY text
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On 29/04/2015 17:33, Jacob Malthouse wrote:
Dear all,
Re: RfR and IRP stress test: 'frivolous' and 'abusive' are a very high bar.
Most panelists would lean towards hearing a case if this is the threshold.
Isn't that a good thing? Shouldn't someone with a reasonable complaint at least have the opportunity to be heard to make their claim? This doesn't mean that they will necessarily be successful in overturning ICANN's decision, that will depend on the merits of their case. If ICANN has acted properly, their complaint will have no effect.
Therefore these words will not be effective in deterring dilatory tactics.
Actually "these words" are not the only restraint on dilatory tactics, they are part of a broader package of hurdles for complainaints: 1. While the complaint is being considered, in the usual case the ordinary process will proceed: that is, the mere fact of a complaint being made in IRP doesn't stop ICANN pressing ahead in its belief that the complaint will be unsuccessful. There is a provision for interim relief, but there are very strict further tests that need to be met before interim relief a complainant could even apply for a pause. 2. There is also a preliminary conciliation process, to further weed out complaints that can be addressed without adjudication. We have heard from previous IRP users that ICANN is the "guilty party" for using this particular provision as a dilatory tactic, dragging out a futile conciliation procedure that complainants dare not escape for fear of being told they have not exhausted their options for conciliation. 3. The IRP complaint is limited to 25 double-spaced pages, which acts to limit undue complexity in the complaints being brought, and helps to ensure they can be dealt with expeditiously. 4. Most significantly, initiation of a complaint is subject to a very tight deadline (far too tight, in my opinion). Many complaints will be time-barred simply because the complainant didn't realise that they would be harmed by a wrongful decision by ICANN before the thirty day deadline has expired. In our discussions we identified this as a problem likely to lead to unfairness, but as far as I can see, the draft proposal does not capture the suggestions raised for rectifying this. 5. Also quite significantly, in my view, the complainant must bear their own legal/advocacy costs for bringing their complaint. Those that have brought an IRP case before will tell you, these costs can be very significant - think six figures. We did discuss in Istanbul making provision so that impecunious complainants could have their costs supported by ICANN, but so far we have made no such provision - although we have clarified that ICANN should bear the costs of the IRP panelists. 6. Finally, by using the IRP the complainant agrees to be bound by it and surrenders their right to appeal to the ordinary courts (except in very limited circumstances). So the IRP would act as a means of removing opportunities for delay. Given all these safeguards and impediments to complainants, I can't see any justification for erecting any further barriers to complaints being heard that are neither frivolous nor vexatious.
Also, there are very few existing precedents. Until the pool of cases is large enough there will be many more cases.
We discussed in Istanbul the possibility that there would be more cases initially, and a declining stream as a body of precedent was gradually established, and I believe there was a consensus that this was desirable. My fear is that the cost and time-bar hurdles (acting separately and in conjunction with each other) will too heavily dissuade people from bringing IRP claims that ought to be brought, that we would all benefit from being brought, and this will retard the development of a body of useful precedent.
Suggest a larger number of panelists at the start, to decrease as the number of cases becomes less due to increased precedent.
I think that is sensible suggestion, but isn't this level of detail as to the appropriate size of the pool at any given time best left to ICANN to decide operationally? Kind Regards, Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Hi Malcolm, Thanks for taking the time to respond. I don't think most of the measures you identify will make a difference, but I do agree ICANN (or someone) should be able to decide the size of the panel based on the number of cases expected. Furthermore, a larger pool of accredited panelists would allow the IRP to scale quickly if needed. Unfortunately, the same solution is not available for the Board and the reconsideration request process. That strikes me as the weakest link currently. Best regards, Jacob.
participants (3)
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Brenda Brewer -
Jacob Malthouse -
Malcolm Hutty