Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<http://mm.icann.org/pipermail/accountability-cross-community/2015-May/003035...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
On Friday 29 May 2015 01:08 AM, Steve DelBianco wrote:
....SNIP....
6. The Board refuses to act, citing, again, that it believes the action is outside of ICANNs mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.
As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANNs mission. It would not be to decide whether, on balance, the community was more right than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANNs mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANNs mission.
Does the ICANN community really want the specific nuances of ICANNs mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
Simply out of curiosity, since there seems to be deep concern about the rights of the US courts to be able to determine whether a ICANN decision serves public interest or not: Is it not the fact that whether the rules of ICANN make a provision for the 'community' ( a misnomer, we mean SOACs system, but whatever) to take matters to the courts or not, there are a thousand ways that US citizens (and perhaps sometimes even non citizens) can directly take an ICANN decision to US courts to meet the tests of pubic interest as determined by US laws and the constitution. What about that? If this concern of 'US court/ law's interference' is real, one has to find ways to confront this undeniable reality of the automatic US courts' jurisdiction over all acts of ICANN, whatever ICANN rules and bylaws may say or not. I do not understand why the group has consistently refused to look at this elephant in the room, while investing so thoroughly in thrashing out the minute details without resolving clear higher level issues. One need not even provide a scenario, put let me try it - entirely hypothetical at this stage, but extreme plausible. Sun Pharmaceuticals is an Indian generic drugs company, one of the world's largest, and providing drugs to most developing countries, at a fraction of the prices that patented drug equivalents are available for . There is a lot of literature on how Indian generic drug industry has helped fight and stabilise the AIDS calamity in Africa, and also many with regard to other diseases all over the world. Meanwhile, US pharma industry with the backing of the US government has employed all possible means including those that are suspect from an international law point of view to thwart and weaken the Indian generic drugs industry for reasons which are obvious -- including getting seized in international waters and neutral protected global shipping lanes supplies being shipped between two developing countries in both of which the transaction is perfectly legal (There is the famous case of supplies being exported from India to Brazil being seized off Netherlands's coast on US gov's behest.) ... Just to give an idea of how 'tense' things are in this area. Now, extending the hypothetical, lets say that Sun Pharma gets for itself a gtld .Sunpharma (which btw if they ask me I'd advice them not to bec of obvious dangers as clear from the following).. and meanwhile extends its global business to online platforms, which is kind of the normal direction that everything would go. .Sunpharma then becomes or denotes the digital space where the company does much of its global business, including management of company's global affairs and so on. Meanwhile, one or the other flare up happens, as routinely does, and the US pharma industry cries foul over certain global commerce activities of Sun Pharma.... We are in 2025 and everything is so digitalised and networked and so on, that the 'Sunpharma online space has become basic to SunPharma's international operations (which it has a right to do - meaning get to own and leverage a global online space under its own name and a trade name name derived gtld). US pharma approaches US courts and seeks seizing of .Sunpharma as this asset is made available and controlled from within the US jurisdiction; and the court agrees and accordingly directs ICANN.... The global DNS system practically unravels, at least its global legitimacy does... We know that US courts have many times been approached to seize domain names that are owned by outside groups and largely work outside the US, and on many different kinds of grounds as well. This is common knowledge and I will not try to begin providing examples. And this right of such seizures or to otherwise being able to judge the public interest nature of ICANN's work lies not only with the US courts but also some executive agencies like the Office of Foreign Assets Control, and I am sure there must be many more. I had earlier asked this particular stress test to be applied but for no clear reasons it never is. If we can cherry pick our stress tests, they really are not stress tests, whatever other purpose they might serve. There is simply no solution to the problem of letting US courts and US's empowered executive agencies routinely judge and enforce their will wrt the public interest impact of ICANN's global governance activities than to incorporate ICANN under international law and get corresponding immunity from US domestic law. I repeat, there is simply no other way. Period. Therefore if we indeed are worried about the role and authority of US courts vis a vis ICANN's global governance activities, lets be consistent. I have held back commenting here, because I see that the two key framing issues of accountability - accountability to which community/ public, and the issue of jurisdiction - have simply been sidestepped, and in default there is no meaning to thrashing out minute details. However, when I read about concerns on how depending on whether something is written in ICANN rules or not US courts will exercise power over it, I could not stop myself from once again pointing to the elephant in the room which is the automatic power of US courts over anything ICAAN whichever way you write the latter's rule book. It does appear funny for people to be working out the minutiae of the quality of waterproofing of the window glass of the ICANN ship when there is a unattended big hole in the hull, which tickled me enough to write this note... Hopefully it may be of some use... parminder
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On 29/05/2015 05:25, parminder wrote:
that? If this concern of 'US court/ law's interference' is real, one has to find ways to confront this undeniable reality of the automatic US courts' jurisdiction over all acts of ICANN, whatever ICANN rules and bylaws may say or not. I do not understand why the group has consistently refused to look at this elephant in the room, while investing so thoroughly in thrashing out the minute details without resolving clear higher level issues.
One need not even provide a scenario, put let me try it - entirely hypothetical at this stage, but extreme plausible. Sun Pharmaceuticals is an Indian generic drugs company, [...] including getting seized in international waters and neutral protected global shipping lanes supplies being shipped between two developing countries in both of which the transaction is perfectly legal (There is the famous case of supplies being exported from India to Brazil being seized off Netherlands's coast on US gov's behest.)
Parminder, The issue of US overreach that you raise is certainly interesting, but the example you offer, of an Indian drugs company having its goods seized in international waters, and in Dutch waters, seems to support the view that changing the location where ICANN is incorporated would be ineffective as a means of placing ICANN beyond the reach of US law. If being incorporated in India didn't protect Sun Pharma, why would it help ICANN? In any case, I'm not aware of any "domain seizure" order ever having been granted against ICANN by the US Courts, or any other courts: these are typically granted against registries or registrars. Again, I fail to see why changing ICANN's location of incorporation would limit this practice. There is a broader reason too why I think we should leave this chimera of location alone. Most of us, I believe, are committed to ICANN operating according to the multistakeholder principle, rather than as an agent of governmental policy - be that the US government, or any other. I certainly am myself; the US has repeatedly stated its commitment to this too. I firmly believe this is only sustainable if ICANN remains strictly within a limited mission of managing the designated 'unique Internet identifiers' for the purpose of ensuring their continued effective operation. If ICANN were to try to abuse its position by leveraging it to gain a broader regulatory power over users of those identifiers, I am sure this consensus would break down. That applies equally whether ICANN chose to use such unwarranted regulatory power to supplement existing national regulation or (as the Sun Pharma example suggests you might wish) to reduce or remove laws passed by sovereign powers. I fear this may not satisfy you, but we don't have it in our power to 'fix' everything, even if we could agree what that would mean. What we can do is ensure that ICANN can be accountable within the space it is granted, remains within that space, and can be corrected when it steps outside. If we achieve this then the multistakeholder approach will be recognised as an enduring success. Who knows? If we do succeed in this, perhaps others in other spaces may seek to follow our example, and adopt for themselves the multistakeholder model. That is a longer term aspiration you might find enticing. 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
If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
Steve, this is unavoidable. I'm no expert on US law, but any bylaw that generally excludes the jurisdiction of courts (exceptions - commercial arbitration etc) could potentially be struck down. As an aside, interesting that you say "state-based" US courts.. On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org> wrote:
On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario.
What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over.
Stress Test version 1: Board refuses to follow community recommendation
1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws.
3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does *not* conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32)
4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did *not* include the ATRT recommendation.
Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision
1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to *accept* the recommendation, believing that it does *not* conflict with ICANN’s limited Mission Statement in the amended bylaws.
3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation *does* conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal )
4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be *enforceable* in the court of the US and other countries that *accept international arbitration results*” (p.34, emphasis added)
5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation.
21/05/2015 03:45, Chris Disspain wrote (link <http://mm.icann.org/pipermail/accountability-cross-community/2015-May/003035...> and excerpt below):
Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:
1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.
As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
The aside was to Chris - sorry Steve! On Fri, May 29, 2015 at 11:31 AM, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
If we agree to the CCWG recommendations we will not be handing ultimate
authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
Steve, this is unavoidable. I'm no expert on US law, but any bylaw that generally excludes the jurisdiction of courts (exceptions - commercial arbitration etc) could potentially be struck down.
As an aside, interesting that you say "state-based" US courts..
On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org
wrote:
On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario.
What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over.
Stress Test version 1: Board refuses to follow community recommendation
1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws.
3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does *not* conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32)
4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did *not* include the ATRT recommendation.
Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision
1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to *accept* the recommendation, believing that it does *not* conflict with ICANN’s limited Mission Statement in the amended bylaws.
3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation *does* conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal )
4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be *enforceable* in the court of the US and other countries that *accept international arbitration results*” (p.34, emphasis added)
5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation.
21/05/2015 03:45, Chris Disspain wrote (link <http://mm.icann.org/pipermail/accountability-cross-community/2015-May/003035...> and excerpt below):
Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:
1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.
As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine. But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<http://mm.icann.org/pipermail/accountability-cross-community/2015-May/003035...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine. But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_a...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
In the stress test v2 that Steve set out below, doesn’t that call out a different issue? The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about? From: <Burr>, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine. But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_a...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
Good point. I think there is an answer, but if not it is very fixable. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission In the stress test v2 that Steve set out below, doesn’t that call out a different issue? The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about? From: <Burr>, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine. But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_a...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
Thanks for your question Sam. My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set) If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ? Isn't that the protection we are talking about ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style
Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr@neustar.biz> a écrit :
Good point. I think there is an answer, but if not it is very fixable.
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@neustar.biz / www.neustar.biz
From: Samantha Eisner <Samantha.Eisner@icann.org> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr <becky.burr@neustar.biz>, Steve DelBianco <sdelbianco@netchoice.org>, Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
In the stress test v2 that Steve set out below, doesn’t that call out a different issue?
The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about?
From: <Burr>, Becky <Becky.Burr@neustar.biz> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block.
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@neustar.biz / www.neustar.biz
From: Steve DelBianco <sdelbianco@netchoice.org> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine.
But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve
On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org> wrote:
On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario.
What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over.
Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws.
3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32)
4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation.
Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws.
3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal )
4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added)
5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation.
21/05/2015 03:45, Chris Disspain wrote (link and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:
1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
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Agreed Mathieu. My question, however, was addressing the situation where the Board ACCEPTED a recommendation from a community group and that was still being challenged (potentially through a community process). It seems that there could be need for additional protections there. From: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Friday, May 29, 2015 at 11:55 AM To: "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Thanks for your question Sam. My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set) If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ? Isn't that the protection we are talking about ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> a écrit : Good point. I think there is an answer, but if not it is very fixable. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission In the stress test v2 that Steve set out below, doesn’t that call out a different issue? The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about? From: <Burr>, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine. But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_a...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Sam, Apologies for the confusion. Just read your initial message again and am still uncertain. If a review team makes a recommendation outside of icann mission, and if the board accepts it, hopefully it will be challenged to the irp right ? Because it seems to me that if a review team issues a recommendation outside of icann mission the accountable way forward would be either : - reject recommendation on the basis that it is outside of the mission -or initiate a process to change the by laws (which will be subject to community powers) Could you maybe expand on the kind of protection you think of ? Do you mean protect against the initiation of a challenge ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style
Le 29 mai 2015 à 21:02, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
Agreed Mathieu. My question, however, was addressing the situation where the Board ACCEPTED a recommendation from a community group and that was still being challenged (potentially through a community process). It seems that there could be need for additional protections there.
From: Mathieu Weill <mathieu.weill@afnic.fr> Date: Friday, May 29, 2015 at 11:55 AM To: "Burr, Becky" <Becky.Burr@neustar.biz> Cc: Samantha Eisner <samantha.eisner@icann.org>, Steve DelBianco <sdelbianco@netchoice.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
Thanks for your question Sam.
My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set)
If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ?
Isn't that the protection we are talking about ?
Best
Mathieu Weill --------------- Depuis mon mobile, désolé pour le style
Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr@neustar.biz> a écrit :
Good point. I think there is an answer, but if not it is very fixable.
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@neustar.biz / www.neustar.biz
From: Samantha Eisner <Samantha.Eisner@icann.org> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr <becky.burr@neustar.biz>, Steve DelBianco <sdelbianco@netchoice.org>, Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
In the stress test v2 that Steve set out below, doesn’t that call out a different issue?
The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about?
From: <Burr>, Becky <Becky.Burr@neustar.biz> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block.
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@neustar.biz / www.neustar.biz
From: Steve DelBianco <sdelbianco@netchoice.org> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine.
But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve
On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org> wrote:
On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario.
What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over.
Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws.
3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32)
4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation.
Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws.
3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal )
4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added)
5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation.
21/05/2015 03:45, Chris Disspain wrote (link and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:
1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Just as there remains the possibility that the board cold take an action that is outside of the mission, there also remains the possibility that a review team takes a recommendation outside of ICANN’s mission. I think that we’re in agreement that at whichever level it happens, it would be unacceptable for that action to stand. What happens, however, if there’s a robust community process such as community involvement in review team composition selection for robust participation at the review team level, as well as substantial community consultations on a recommendation, and it results in a recommendation that all involved agree that it is within ICANN’s mission. Then the Board in considering the recommendation, also agrees. Allowing for a follow-on community process to then challenge the board’s acceptance of that community recommendation seems to create a huge “catch 22” situation for the board and the community. Were there requirements for participation in the vetting of the community recommendations where people were obligated to consider how the recommendation fit with ICANN’s mission? Is there a requirement imposed on the first instance that recommendations should only be those that are within ICANN’s mission? I hope this helps clarify my concern. Best, Sam From: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Friday, May 29, 2015 at 12:11 PM To: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>> Cc: "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Sam, Apologies for the confusion. Just read your initial message again and am still uncertain. If a review team makes a recommendation outside of icann mission, and if the board accepts it, hopefully it will be challenged to the irp right ? Because it seems to me that if a review team issues a recommendation outside of icann mission the accountable way forward would be either : - reject recommendation on the basis that it is outside of the mission -or initiate a process to change the by laws (which will be subject to community powers) Could you maybe expand on the kind of protection you think of ? Do you mean protect against the initiation of a challenge ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 21:02, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> a écrit : Agreed Mathieu. My question, however, was addressing the situation where the Board ACCEPTED a recommendation from a community group and that was still being challenged (potentially through a community process). It seems that there could be need for additional protections there. From: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Friday, May 29, 2015 at 11:55 AM To: "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Thanks for your question Sam. My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set) If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ? Isn't that the protection we are talking about ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> a écrit : Good point. I think there is an answer, but if not it is very fixable. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission In the stress test v2 that Steve set out below, doesn’t that call out a different issue? The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about? From: <Burr>, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine. But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_a...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
This is angels dancing on the head of a pin worries. We have to have strong protections against abuse of the process. And we will have safeguards – a “community objection” will actually need to have the support of the community and not permit a lone obstructer to pursue. Individuals and organizations bringing IRPs will have to demonstrate material harm, etc. We should be focused on the abuse prevention issue 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Date: Friday, May 29, 2015 at 4:00 PM To: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Just as there remains the possibility that the board cold take an action that is outside of the mission, there also remains the possibility that a review team takes a recommendation outside of ICANN’s mission. I think that we’re in agreement that at whichever level it happens, it would be unacceptable for that action to stand. What happens, however, if there’s a robust community process such as community involvement in review team composition selection for robust participation at the review team level, as well as substantial community consultations on a recommendation, and it results in a recommendation that all involved agree that it is within ICANN’s mission. Then the Board in considering the recommendation, also agrees. Allowing for a follow-on community process to then challenge the board’s acceptance of that community recommendation seems to create a huge “catch 22” situation for the board and the community. Were there requirements for participation in the vetting of the community recommendations where people were obligated to consider how the recommendation fit with ICANN’s mission? Is there a requirement imposed on the first instance that recommendations should only be those that are within ICANN’s mission? I hope this helps clarify my concern. Best, Sam From: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Friday, May 29, 2015 at 12:11 PM To: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>> Cc: "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Sam, Apologies for the confusion. Just read your initial message again and am still uncertain. If a review team makes a recommendation outside of icann mission, and if the board accepts it, hopefully it will be challenged to the irp right ? Because it seems to me that if a review team issues a recommendation outside of icann mission the accountable way forward would be either : - reject recommendation on the basis that it is outside of the mission -or initiate a process to change the by laws (which will be subject to community powers) Could you maybe expand on the kind of protection you think of ? Do you mean protect against the initiation of a challenge ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 21:02, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> a écrit : Agreed Mathieu. My question, however, was addressing the situation where the Board ACCEPTED a recommendation from a community group and that was still being challenged (potentially through a community process). It seems that there could be need for additional protections there. From: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Friday, May 29, 2015 at 11:55 AM To: "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Thanks for your question Sam. My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set) If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ? Isn't that the protection we are talking about ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> a écrit : Good point. I think there is an answer, but if not it is very fixable. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission In the stress test v2 that Steve set out below, doesn’t that call out a different issue? The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about? From: <Burr>, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine. But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_a...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=h2XBaXAVWq_vy9MKeRDonaDb4tP7SsEBQDjO1-zfpoA&s=yQRO5230hpG9ceZDYTlJYeTz3l40Sh4aXTnkvXns8RQ&e=>
With respect, you are trying to find holes where they dont realistically exist. If the community proposes an out of mission idea and the Board ill advisedly agrees to it, then the IRP will correct it. In a system of checks and balances someone has to have the last word. Frankly, I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question If there is going to be a bias in the system I would much rather see it as a constraint against ICANN action than a bias in favor of permitting questionable conduct. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Samantha Eisner [mailto:Samantha.Eisner@icann.org] Sent: Friday, May 29, 2015 4:01 PM To: Mathieu Weill Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Just as there remains the possibility that the board cold take an action that is outside of the mission, there also remains the possibility that a review team takes a recommendation outside of ICANNs mission. I think that were in agreement that at whichever level it happens, it would be unacceptable for that action to stand. What happens, however, if theres a robust community process such as community involvement in review team composition selection for robust participation at the review team level, as well as substantial community consultations on a recommendation, and it results in a recommendation that all involved agree that it is within ICANNs mission. Then the Board in considering the recommendation, also agrees. Allowing for a follow-on community process to then challenge the boards acceptance of that community recommendation seems to create a huge catch 22 situation for the board and the community. Were there requirements for participation in the vetting of the community recommendations where people were obligated to consider how the recommendation fit with ICANNs mission? Is there a requirement imposed on the first instance that recommendations should only be those that are within ICANNs mission? I hope this helps clarify my concern. Best, Sam From: Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>
Date: Friday, May 29, 2015 at 12:11 PM To: Samantha Eisner <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org> > Cc: "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> >, Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org>
, Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
Sam, Apologies for the confusion. Just read your initial message again and am still uncertain. If a review team makes a recommendation outside of icann mission, and if the board accepts it, hopefully it will be challenged to the irp right ? Because it seems to me that if a review team issues a recommendation outside of icann mission the accountable way forward would be either : - reject recommendation on the basis that it is outside of the mission -or initiate a process to change the by laws (which will be subject to community powers) Could you maybe expand on the kind of protection you think of ? Do you mean protect against the initiation of a challenge ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 21:02, Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> > a écrit : Agreed Mathieu. My question, however, was addressing the situation where the Board ACCEPTED a recommendation from a community group and that was still being challenged (potentially through a community process). It seems that there could be need for additional protections there. From: Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>
Date: Friday, May 29, 2015 at 11:55 AM To: "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > Cc: Samantha Eisner <samantha.eisner@icann.org <mailto:samantha.eisner@icann.org> >, Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org> >, Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Thanks for your question Sam. My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set) If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ? Isn't that the protection we are talking about ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > a écrit : Good point. I think there is an answer, but if not it is very fixable. 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 / <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz / www.neustar.biz <http://www.neustar.biz> From: Samantha Eisner <Samantha.Eisner@icann.org <mailto:Samantha.Eisner@icann.org> > Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr <becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> >, Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org>
, Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
In the stress test v2 that Steve set out below, doesnt that call out a different issue? The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANNs mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about? From: <Burr>, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>
Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org> >, Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block. 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 / <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz / www.neustar.biz <http://www.neustar.biz> From: Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org> > Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission The thoughtful comments by Arun and Parminder were on Chris Disspains original note, which I included in mine. But lets also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org> > wrote: On this week's stress test team call, we looked at Chris Disspains hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANNs mission. This was due in part to a misunderstanding embedded in Chris scenario. What weve done below is take Chris scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We dont think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANNs limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the boards decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with substantive limitations on the permissible scope of ICANNs actions (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANNs limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the boards decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with substantive limitations on the permissible scope of ICANNs actions (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRPs substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote ( <https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_ accountability-2Dcross-2Dcommunity_2015-2DMay_003035.html&d=AwMGaQ&c=MOptNlV tIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=X56Me2-F6Etg rc4Kcl5pz3c-js1S7kveIwNV-n4DMoc&s=73saSCa_-ze0blCSpk_1N-36nkQUNVnzPAIrbjO7lS Q&e=> link and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWGs currently proposed mechanisms: 1. The community, pursuant to powers defined in a fundamental bylaw, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANNs mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANNs mission. It would not be to decide whether, on balance, the community was more right than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANNs mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANNs mission. Does the ICANN community really want the specific nuances of ICANNs mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Paul,
I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question
I am always in two minds about whether to respond to comments like these especially as there are those who believe that as I am on the board I am a) incapable of commenting in any other capacity and b) have been subjected to some form of brainwashing by staff/other board members resulting in an inability to accept or understand any criticism or negative comment by community members. However in this case feel I must respond. So, with respect and speaking entirely personally as someone who has been involved in ICANN since 2000 and had my fair share of 'fights' with staff, the board, the CEO and other parts of the community, I am not aware of an instance where board and/or staff has disregarded community input. I am aware of numerous occasions where the board and/or staff have made decisions that go against input from parts of the community. Where, for example, the NCSG and ALAC have expressed one view and the contracted parties another. I am aware of numerous occasions where the board and/or staff have had to balance differing views within the community and find a way forward. I am aware that often times board and/or staff end up making everyone equally unhappy. But I know of no instance where board and/or staff have had input from "the community" and disregarded it. Finally, if you are going to make a comment such as "wonder at the real nature of your question" implying that there might be "something" behind the question may I respectfully ask that you explain what you think that something may be. Cheers, Chris
On 30 May 2015, at 08:45, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, you are trying to find holes where they don’t realistically exist. If the community proposes an “out of mission” idea and the Board ill advisedly agrees to it, then the IRP will correct it. In a system of checks and balances someone has to have the last word.
Frankly, I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question … If there is going to be a bias in the system I would much rather see it as a constraint against ICANN action than a bias in favor of permitting questionable conduct.
Paul
Paul Rosenzweig paul.rosenzweig@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
From: Samantha Eisner [mailto:Samantha.Eisner@icann.org] Sent: Friday, May 29, 2015 4:01 PM To: Mathieu Weill Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
Just as there remains the possibility that the board cold take an action that is outside of the mission, there also remains the possibility that a review team takes a recommendation outside of ICANN’s mission. I think that we’re in agreement that at whichever level it happens, it would be unacceptable for that action to stand.
What happens, however, if there’s a robust community process such as community involvement in review team composition selection for robust participation at the review team level, as well as substantial community consultations on a recommendation, and it results in a recommendation that all involved agree that it is within ICANN’s mission. Then the Board in considering the recommendation, also agrees. Allowing for a follow-on community process to then challenge the board’s acceptance of that community recommendation seems to create a huge “catch 22” situation for the board and the community. Were there requirements for participation in the vetting of the community recommendations where people were obligated to consider how the recommendation fit with ICANN’s mission? Is there a requirement imposed on the first instance that recommendations should only be those that are within ICANN’s mission?
I hope this helps clarify my concern.
Best,
Sam
From: Mathieu Weill <mathieu.weill@afnic.fr> Date: Friday, May 29, 2015 at 12:11 PM To: Samantha Eisner <samantha.eisner@icann.org> Cc: "Burr, Becky" <Becky.Burr@neustar.biz>, Steve DelBianco <sdelbianco@netchoice.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
Sam,
Apologies for the confusion. Just read your initial message again and am still uncertain.
If a review team makes a recommendation outside of icann mission, and if the board accepts it, hopefully it will be challenged to the irp right ?
Because it seems to me that if a review team issues a recommendation outside of icann mission the accountable way forward would be either : - reject recommendation on the basis that it is outside of the mission -or initiate a process to change the by laws (which will be subject to community powers)
Could you maybe expand on the kind of protection you think of ? Do you mean protect against the initiation of a challenge ?
Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style
Le 29 mai 2015 à 21:02, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
Agreed Mathieu. My question, however, was addressing the situation where the Board ACCEPTED a recommendation from a community group and that was still being challenged (potentially through a community process). It seems that there could be need for additional protections there.
From: Mathieu Weill <mathieu.weill@afnic.fr> Date: Friday, May 29, 2015 at 11:55 AM To: "Burr, Becky" <Becky.Burr@neustar.biz> Cc: Samantha Eisner <samantha.eisner@icann.org>, Steve DelBianco <sdelbianco@netchoice.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
Thanks for your question Sam.
My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set)
If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ?
Isn't that the protection we are talking about ?
Best
Mathieu Weill --------------- Depuis mon mobile, désolé pour le style
Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr@neustar.biz> a écrit :
Good point. I think there is an answer, but if not it is very fixable.
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@neustar.biz / www.neustar.biz
From: Samantha Eisner <Samantha.Eisner@icann.org> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr <becky.burr@neustar.biz>, Steve DelBianco <sdelbianco@netchoice.org>, Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
In the stress test v2 that Steve set out below, doesn’t that call out a different issue?
The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about?
From: <Burr>, Becky <Becky.Burr@neustar.biz> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block.
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@neustar.biz / www.neustar.biz
From: Steve DelBianco <sdelbianco@netchoice.org> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine.
But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve
On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario.
What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over.
Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws.
3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32)
4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation.
Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws.
3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal )
4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added)
5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation.
21/05/2015 03:45, Chris Disspain wrote (link and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:
1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Co-Chairs, Hsving been involved with this sordid mess we call ICANN since (almost) before its foundation I am a firm believer that the reasonable people I knew before they got on the ICANN Board, turned into bodily orifices during their tenure. I expressed this sentiment to Chris in the presence of another Board member at Chris' appointment. Chris promised he would not. So did the other Board Member. Chris, to his credit, has kept his promise. The other one did not. i also note, with concenr the high turnover of female Board Members in recent times. And I also have commented already about the dysmal track record of CEO choices, which on occasion make me reminisce about the good old times under Paul Twoomey :-)-O I on the other hand do not agree that CCWG Acvountability should offer up something that needs a Ph.D. to understand, which even the authors don't. Note to self: Find Ph.D. advisor... greetings, el -- Sent from Dr Lisse's iPhone 6
On May 30, 2015, at 02:15, Chris Disspain <ceo@auda.org.au> wrote:
[...] I am always in two minds about whether to respond to comments like these especially as there are those who believe that as I am on the board I am a) incapable of commenting in any other capacity and b) have been subjected to some form of brainwashing by staff/other board members resulting in an inability to accept or understand any criticism or negative comment by community members. [...]
Chris, thanks for saying all of this. Paul, et al, Much of the dialog about accountability and about the board’s attitude and role has been far off base. The board does its level best to do what’s right. We actively and conscientiously try to serve the community, and to suggest otherwise is to propagate a falsehood. We are human and therefore not perfect, but our motives and objectives are exactly and entirely consistent with what’s best for the Internet community. As Chris has so aptly described, there are many, many competing views, sometimes reflecting differences in background and perceptions and sometimes representing differences in vested interests. Finding the most positive — or sometimes the least negative — outcome across the variety of interests does not make everyone happy. The board welcomes the current examination of ICANN’s accountability. Indeed, were it not for the particular way this effort had been created, the board might well be leading the effort to make a comparable set of changes. It is, perhaps, politically helpful to position the board as “the problem” or “the adversary” and then try to exert force to win battles with us, but I’m afraid you’ll find us a very soft target because we’re much more likely to agree with the major thrusts of these efforts and differ only in the practical issues and potential failure modes. Steve Crocker On May 29, 2015, at 9:15 PM, Chris Disspain <ceo@auda.org.au> wrote:
Paul,
I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question
I am always in two minds about whether to respond to comments like these especially as there are those who believe that as I am on the board I am a) incapable of commenting in any other capacity and b) have been subjected to some form of brainwashing by staff/other board members resulting in an inability to accept or understand any criticism or negative comment by community members. However in this case feel I must respond.
So, with respect and speaking entirely personally as someone who has been involved in ICANN since 2000 and had my fair share of 'fights' with staff, the board, the CEO and other parts of the community, I am not aware of an instance where board and/or staff has disregarded community input.
I am aware of numerous occasions where the board and/or staff have made decisions that go against input from parts of the community. Where, for example, the NCSG and ALAC have expressed one view and the contracted parties another.
I am aware of numerous occasions where the board and/or staff have had to balance differing views within the community and find a way forward. I am aware that often times board and/or staff end up making everyone equally unhappy.
But I know of no instance where board and/or staff have had input from "the community" and disregarded it.
Finally, if you are going to make a comment such as "wonder at the real nature of your question" implying that there might be "something" behind the question may I respectfully ask that you explain what you think that something may be.
Cheers,
Chris
On 30 May 2015, at 08:45, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, you are trying to find holes where they don’t realistically exist. If the community proposes an “out of mission” idea and the Board ill advisedly agrees to it, then the IRP will correct it. In a system of checks and balances someone has to have the last word.
Frankly, I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question … If there is going to be a bias in the system I would much rather see it as a constraint against ICANN action than a bias in favor of permitting questionable conduct.
Paul
Paul Rosenzweig paul.rosenzweig@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
From: Samantha Eisner [mailto:Samantha.Eisner@icann.org] Sent: Friday, May 29, 2015 4:01 PM To: Mathieu Weill Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
Just as there remains the possibility that the board cold take an action that is outside of the mission, there also remains the possibility that a review team takes a recommendation outside of ICANN’s mission. I think that we’re in agreement that at whichever level it happens, it would be unacceptable for that action to stand.
What happens, however, if there’s a robust community process such as community involvement in review team composition selection for robust participation at the review team level, as well as substantial community consultations on a recommendation, and it results in a recommendation that all involved agree that it is within ICANN’s mission. Then the Board in considering the recommendation, also agrees. Allowing for a follow-on community process to then challenge the board’s acceptance of that community recommendation seems to create a huge “catch 22” situation for the board and the community. Were there requirements for participation in the vetting of the community recommendations where people were obligated to consider how the recommendation fit with ICANN’s mission? Is there a requirement imposed on the first instance that recommendations should only be those that are within ICANN’s mission?
I hope this helps clarify my concern.
Best,
Sam
From: Mathieu Weill <mathieu.weill@afnic.fr> Date: Friday, May 29, 2015 at 12:11 PM To: Samantha Eisner <samantha.eisner@icann.org> Cc: "Burr, Becky" <Becky.Burr@neustar.biz>, Steve DelBianco <sdelbianco@netchoice.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
Sam,
Apologies for the confusion. Just read your initial message again and am still uncertain.
If a review team makes a recommendation outside of icann mission, and if the board accepts it, hopefully it will be challenged to the irp right ?
Because it seems to me that if a review team issues a recommendation outside of icann mission the accountable way forward would be either : - reject recommendation on the basis that it is outside of the mission -or initiate a process to change the by laws (which will be subject to community powers)
Could you maybe expand on the kind of protection you think of ? Do you mean protect against the initiation of a challenge ?
Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style
Le 29 mai 2015 à 21:02, Samantha Eisner <Samantha.Eisner@icann.org> a écrit :
Agreed Mathieu. My question, however, was addressing the situation where the Board ACCEPTED a recommendation from a community group and that was still being challenged (potentially through a community process). It seems that there could be need for additional protections there.
From: Mathieu Weill <mathieu.weill@afnic.fr> Date: Friday, May 29, 2015 at 11:55 AM To: "Burr, Becky" <Becky.Burr@neustar.biz> Cc: Samantha Eisner <samantha.eisner@icann.org>, Steve DelBianco <sdelbianco@netchoice.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
Thanks for your question Sam.
My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set)
If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ?
Isn't that the protection we are talking about ?
Best
Mathieu Weill --------------- Depuis mon mobile, désolé pour le style
Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr@neustar.biz> a écrit :
Good point. I think there is an answer, but if not it is very fixable.
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@neustar.biz / www.neustar.biz
From: Samantha Eisner <Samantha.Eisner@icann.org> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr <becky.burr@neustar.biz>, Steve DelBianco <sdelbianco@netchoice.org>, Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
In the stress test v2 that Steve set out below, doesn’t that call out a different issue?
The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about?
From: <Burr>, Becky <Becky.Burr@neustar.biz> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block.
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@neustar.biz / www.neustar.biz
From: Steve DelBianco <sdelbianco@netchoice.org> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine.
But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve
On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario.
What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over.
Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws.
3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32)
4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation.
Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws.
3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal )
4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added)
5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation.
21/05/2015 03:45, Chris Disspain wrote (link and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:
1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
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Dear Chris and Steve I obviously struck a nerve. Discretion being the better form of valor, and out of respect for those whove taken up the mantle of Board leadership, Ill recede from this discussion, leaving you only with this question: Why is it that you think the community perceives the Board as an adversary? I think it is neither helpful nor accurate to characterize that as merely political. There is more to it than that Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Steve Crocker [mailto:steve@shinkuro.com] Sent: Saturday, May 30, 2015 1:03 PM To: Chris Disspain; Paul Rosenzweig Esq; Accountability Cross Community Cc: Stephen D. Crocker Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Chris, thanks for saying all of this. Paul, et al, Much of the dialog about accountability and about the boards attitude and role has been far off base. The board does its level best to do whats right. We actively and conscientiously try to serve the community, and to suggest otherwise is to propagate a falsehood. We are human and therefore not perfect, but our motives and objectives are exactly and entirely consistent with whats best for the Internet community. As Chris has so aptly described, there are many, many competing views, sometimes reflecting differences in background and perceptions and sometimes representing differences in vested interests. Finding the most positive or sometimes the least negative outcome across the variety of interests does not make everyone happy. The board welcomes the current examination of ICANNs accountability. Indeed, were it not for the particular way this effort had been created, the board might well be leading the effort to make a comparable set of changes. It is, perhaps, politically helpful to position the board as the problem or the adversary and then try to exert force to win battles with us, but Im afraid youll find us a very soft target because were much more likely to agree with the major thrusts of these efforts and differ only in the practical issues and potential failure modes. Steve Crocker On May 29, 2015, at 9:15 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> > wrote: Paul, I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question I am always in two minds about whether to respond to comments like these especially as there are those who believe that as I am on the board I am a) incapable of commenting in any other capacity and b) have been subjected to some form of brainwashing by staff/other board members resulting in an inability to accept or understand any criticism or negative comment by community members. However in this case feel I must respond. So, with respect and speaking entirely personally as someone who has been involved in ICANN since 2000 and had my fair share of 'fights' with staff, the board, the CEO and other parts of the community, I am not aware of an instance where board and/or staff has disregarded community input. I am aware of numerous occasions where the board and/or staff have made decisions that go against input from parts of the community. Where, for example, the NCSG and ALAC have expressed one view and the contracted parties another. I am aware of numerous occasions where the board and/or staff have had to balance differing views within the community and find a way forward. I am aware that often times board and/or staff end up making everyone equally unhappy. But I know of no instance where board and/or staff have had input from "the community" and disregarded it. Finally, if you are going to make a comment such as "wonder at the real nature of your question" implying that there might be "something" behind the question may I respectfully ask that you explain what you think that something may be. Cheers, Chris On 30 May 2015, at 08:45, Paul Rosenzweig < <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com> wrote: With respect, you are trying to find holes where they dont realistically exist. If the community proposes an out of mission idea and the Board ill advisedly agrees to it, then the IRP will correct it. In a system of checks and balances someone has to have the last word. Frankly, I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question If there is going to be a bias in the system I would much rather see it as a constraint against ICANN action than a bias in favor of permitting questionable conduct. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Samantha Eisner [ <mailto:Samantha.Eisner@icann.org> mailto:Samantha.Eisner@icann.org] Sent: Friday, May 29, 2015 4:01 PM To: Mathieu Weill Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Just as there remains the possibility that the board cold take an action that is outside of the mission, there also remains the possibility that a review team takes a recommendation outside of ICANNs mission. I think that were in agreement that at whichever level it happens, it would be unacceptable for that action to stand. What happens, however, if theres a robust community process such as community involvement in review team composition selection for robust participation at the review team level, as well as substantial community consultations on a recommendation, and it results in a recommendation that all involved agree that it is within ICANNs mission. Then the Board in considering the recommendation, also agrees. Allowing for a follow-on community process to then challenge the boards acceptance of that community recommendation seems to create a huge catch 22 situation for the board and the community. Were there requirements for participation in the vetting of the community recommendations where people were obligated to consider how the recommendation fit with ICANNs mission? Is there a requirement imposed on the first instance that recommendations should only be those that are within ICANNs mission? I hope this helps clarify my concern. Best, Sam From: Mathieu Weill < <mailto:mathieu.weill@afnic.fr> mathieu.weill@afnic.fr> Date: Friday, May 29, 2015 at 12:11 PM To: Samantha Eisner < <mailto:samantha.eisner@icann.org> samantha.eisner@icann.org> Cc: "Burr, Becky" < <mailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz>, Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org>, Accountability Cross Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Sam, Apologies for the confusion. Just read your initial message again and am still uncertain. If a review team makes a recommendation outside of icann mission, and if the board accepts it, hopefully it will be challenged to the irp right ? Because it seems to me that if a review team issues a recommendation outside of icann mission the accountable way forward would be either : - reject recommendation on the basis that it is outside of the mission -or initiate a process to change the by laws (which will be subject to community powers) Could you maybe expand on the kind of protection you think of ? Do you mean protect against the initiation of a challenge ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 21:02, Samantha Eisner < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> a écrit : Agreed Mathieu. My question, however, was addressing the situation where the Board ACCEPTED a recommendation from a community group and that was still being challenged (potentially through a community process). It seems that there could be need for additional protections there. From: Mathieu Weill < <mailto:mathieu.weill@afnic.fr> mathieu.weill@afnic.fr> Date: Friday, May 29, 2015 at 11:55 AM To: "Burr, Becky" < <mailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz> Cc: Samantha Eisner < <mailto:samantha.eisner@icann.org> samantha.eisner@icann.org>, Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org>, Accountability Cross Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Thanks for your question Sam. My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set) If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ? Isn't that the protection we are talking about ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 20:09, "Burr, Becky" < <mailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz> a écrit : Good point. I think there is an answer, but if not it is very fixable. 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 / <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz / <http://www.neustar.biz/> www.neustar.biz From: Samantha Eisner < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr < <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz>, Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org>, Accountability Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission In the stress test v2 that Steve set out below, doesnt that call out a different issue? The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANNs mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about? From: <Burr>, Becky < <mailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org>, Accountability Cross Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block. 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 / <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz / <http://www.neustar.biz/> www.neustar.biz From: Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission The thoughtful comments by Arun and Parminder were on Chris Disspains original note, which I included in mine. But lets also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org> wrote: On this week's stress test team call, we looked at Chris Disspains hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANNs mission. This was due in part to a misunderstanding embedded in Chris scenario. What weve done below is take Chris scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We dont think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANNs limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the boards decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with substantive limitations on the permissible scope of ICANNs actions (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANNs limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the boards decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with substantive limitations on the permissible scope of ICANNs actions (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRPs substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote ( <https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_ accountability-2Dcross-2Dcommunity_2015-2DMay_003035.html&d=AwMGaQ&c=MOptNlV tIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=X56Me2-F6Etg rc4Kcl5pz3c-js1S7kveIwNV-n4DMoc&s=73saSCa_-ze0blCSpk_1N-36nkQUNVnzPAIrbjO7lS Q&e=> link and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWGs currently proposed mechanisms: 1. The community, pursuant to powers defined in a fundamental bylaw, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANNs mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANNs mission. It would not be to decide whether, on balance, the community was more right than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANNs mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANNs mission. Does the ICANN community really want the specific nuances of ICANNs mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Paul, There’s an assumption (or suggestion of a fact) that I do not share. I do not perceive the board as an adversary at all. And I know many with me don't Best, Roelof From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: zondag 31 mei 2015 19:32 To: Steve Crocker <steve@shinkuro.com<mailto:steve@shinkuro.com>>, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Dear Chris and Steve I obviously struck a nerve. Discretion being the better form of valor, and out of respect for those who’ve taken up the mantle of Board leadership, I’ll recede from this discussion, leaving you only with this question: Why is it that you think the community perceives the Board as an adversary? I think it is neither helpful nor accurate to characterize that as merely “political.” There is more to it than that … Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@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<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Steve Crocker [mailto:steve@shinkuro.com] Sent: Saturday, May 30, 2015 1:03 PM To: Chris Disspain; Paul Rosenzweig Esq; Accountability Cross Community Cc: Stephen D. Crocker Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Chris, thanks for saying all of this. Paul, et al, Much of the dialog about accountability and about the board’s attitude and role has been far off base. The board does its level best to do what’s right. We actively and conscientiously try to serve the community, and to suggest otherwise is to propagate a falsehood. We are human and therefore not perfect, but our motives and objectives are exactly and entirely consistent with what’s best for the Internet community. As Chris has so aptly described, there are many, many competing views, sometimes reflecting differences in background and perceptions and sometimes representing differences in vested interests. Finding the most positive — or sometimes the least negative — outcome across the variety of interests does not make everyone happy. The board welcomes the current examination of ICANN’s accountability. Indeed, were it not for the particular way this effort had been created, the board might well be leading the effort to make a comparable set of changes. It is, perhaps, politically helpful to position the board as “the problem” or “the adversary” and then try to exert force to win battles with us, but I’m afraid you’ll find us a very soft target because we’re much more likely to agree with the major thrusts of these efforts and differ only in the practical issues and potential failure modes. Steve Crocker On May 29, 2015, at 9:15 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Paul, I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question I am always in two minds about whether to respond to comments like these especially as there are those who believe that as I am on the board I am a) incapable of commenting in any other capacity and b) have been subjected to some form of brainwashing by staff/other board members resulting in an inability to accept or understand any criticism or negative comment by community members. However in this case feel I must respond. So, with respect and speaking entirely personally as someone who has been involved in ICANN since 2000 and had my fair share of 'fights' with staff, the board, the CEO and other parts of the community, I am not aware of an instance where board and/or staff has disregarded community input. I am aware of numerous occasions where the board and/or staff have made decisions that go against input from parts of the community. Where, for example, the NCSG and ALAC have expressed one view and the contracted parties another. I am aware of numerous occasions where the board and/or staff have had to balance differing views within the community and find a way forward. I am aware that often times board and/or staff end up making everyone equally unhappy. But I know of no instance where board and/or staff have had input from "the community" and disregarded it. Finally, if you are going to make a comment such as "wonder at the real nature of your question" implying that there might be "something" behind the question may I respectfully ask that you explain what you think that something may be. Cheers, Chris On 30 May 2015, at 08:45, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: With respect, you are trying to find holes where they don’t realistically exist. If the community proposes an “out of mission” idea and the Board ill advisedly agrees to it, then the IRP will correct it. In a system of checks and balances someone has to have the last word. Frankly, I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question … If there is going to be a bias in the system I would much rather see it as a constraint against ICANN action than a bias in favor of permitting questionable conduct. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@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<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Samantha Eisner [mailto:Samantha.Eisner@icann.org] Sent: Friday, May 29, 2015 4:01 PM To: Mathieu Weill Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Just as there remains the possibility that the board cold take an action that is outside of the mission, there also remains the possibility that a review team takes a recommendation outside of ICANN’s mission. I think that we’re in agreement that at whichever level it happens, it would be unacceptable for that action to stand. What happens, however, if there’s a robust community process such as community involvement in review team composition selection for robust participation at the review team level, as well as substantial community consultations on a recommendation, and it results in a recommendation that all involved agree that it is within ICANN’s mission. Then the Board in considering the recommendation, also agrees. Allowing for a follow-on community process to then challenge the board’s acceptance of that community recommendation seems to create a huge “catch 22” situation for the board and the community. Were there requirements for participation in the vetting of the community recommendations where people were obligated to consider how the recommendation fit with ICANN’s mission? Is there a requirement imposed on the first instance that recommendations should only be those that are within ICANN’s mission? I hope this helps clarify my concern. Best, Sam From: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Friday, May 29, 2015 at 12:11 PM To: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>> Cc: "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Sam, Apologies for the confusion. Just read your initial message again and am still uncertain. If a review team makes a recommendation outside of icann mission, and if the board accepts it, hopefully it will be challenged to the irp right ? Because it seems to me that if a review team issues a recommendation outside of icann mission the accountable way forward would be either : - reject recommendation on the basis that it is outside of the mission -or initiate a process to change the by laws (which will be subject to community powers) Could you maybe expand on the kind of protection you think of ? Do you mean protect against the initiation of a challenge ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 21:02, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> a écrit : Agreed Mathieu. My question, however, was addressing the situation where the Board ACCEPTED a recommendation from a community group and that was still being challenged (potentially through a community process). It seems that there could be need for additional protections there. From: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Friday, May 29, 2015 at 11:55 AM To: "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Thanks for your question Sam. My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set) If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ? Isn't that the protection we are talking about ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 20:09, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> a écrit : Good point. I think there is an answer, but if not it is very fixable. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz/> From: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission In the stress test v2 that Steve set out below, doesn’t that call out a different issue? The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about? From: <Burr>, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz/> From: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine. But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_a...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I find myself in agreement with Roelof as far as the Board is concerned, but that most certainly does not apply to individual individuals (:-)-O) on Board and Staff (on all levels). el On 2015-06-02 09:34 , Roelof Meijer wrote:
Paul,
There’s an assumption (or suggestion of a fact) that I do not share. I do not perceive the board as an adversary at all. And I know many with me don't
Best,
Roelof [...]
Thank you for explaining, Steve, that recourse to courts would be limited to enforcement of an arbitration panel’s decision rather than re-litigation of the merits. Without access to court enforcement the IRP would merely have an advisory role, which is the present situation and inconsistent with the enhanced accountability being striven for. 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@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Thursday, May 28, 2015 3:38 PM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<http://mm.icann.org/pipermail/accountability-cross-community/2015-May/003035...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5941 / Virus Database: 4354/9872 - Release Date: 05/26/15
Agree 100%. Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Phil Corwin Sent: Friday, May 29, 2015 9:48 AM To: Steve DelBianco; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Thank you for explaining, Steve, that recourse to courts would be limited to enforcement of an arbitration panel’s decision rather than re-litigation of the merits. Without access to court enforcement the IRP would merely have an advisory role, which is the present situation and inconsistent with the enhanced accountability being striven for. 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@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Thursday, May 28, 2015 3:38 PM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<http://mm.icann.org/pipermail/accountability-cross-community/2015-May/003035...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5941 / Virus Database: 4354/9872 - Release Date: 05/26/15
To be precise, a Court in California will defer to a binding arbitral decision unless the arbitrators are biased/corrupt, a party has been denied a hearing, or the arbitrator has acted beyond his or her grant of authority (i.e., deciding something not presented by the parties or authorized by the arbitration agreement). Those are very limited grounds for substantive review. 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@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Friday, May 29, 2015 at 9:47 AM To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Thank you for explaining, Steve, that recourse to courts would be limited to enforcement of an arbitration panel’s decision rather than re-litigation of the merits. Without access to court enforcement the IRP would merely have an advisory role, which is the present situation and inconsistent with the enhanced accountability being striven for. 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@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Thursday, May 28, 2015 3:38 PM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote (link<https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_a...> and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avg.com&d=AwMGaQ&c=M...> Version: 2015.0.5941 / Virus Database: 4354/9872 - Release Date: 05/26/15
I doubt thst many ccTLD Managers will enter into an Arbitration Agreement. And without Agreement no Arbitration. el -- Sent from Dr Lisse's iPhone 6
On May 29, 2015, at 15:59, Burr, Becky <Becky.Burr@neustar.biz> wrote:
To be precise, a Court in California will defer to a binding arbitral decision unless the arbitrators are biased/corrupt, a party has been denied a hearing, or the arbitrator has acted beyond his or her grant of authority (i.e., deciding something not presented by the parties or authorized by the arbitration agreement). Those are very limited grounds for substantive review.
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@neustar.biz / www.neustar.biz
From: Phil Corwin <psc@vlaw-dc.com> Date: Friday, May 29, 2015 at 9:47 AM To: Steve DelBianco <sdelbianco@netchoice.org>, Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
Thank you for explaining, Steve, that recourse to courts would be limited to enforcement of an arbitration panel’s decision rather than re-litigation of the merits.
Without access to court enforcement the IRP would merely have an advisory role, which is the present situation and inconsistent with the enhanced accountability being striven for.
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@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Thursday, May 28, 2015 3:38 PM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission
On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario.
What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over.
Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws.
3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32)
4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation.
Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws.
3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal )
4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added)
5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation.
21/05/2015 03:45, Chris Disspain wrote (link and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:
1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
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Hi Steve, All, Thanks. Just acknowledging this and the work you and the stress test team have put in. I appreciate it and also the spirit in which these discussions and debates have occurred. I will look at your stress tests over the next couple of days and respond to the list early next week. Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au <mailto:ceo@auda.org.au> | W: www.auda.org.au <http://www.auda.org.au/> auDA – Australia’s Domain Name Administrator
On 29 May 2015, at 05:38 , Steve DelBianco <sdelbianco@netchoice.org> wrote:
On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario.
What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over.
Stress Test version 1: Board refuses to follow community recommendation
1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws.
3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32)
4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation.
Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision
1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation.
2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws.
3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal )
4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added)
5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation.
21/05/2015 03:45, Chris Disspain wrote (link <http://mm.icann.org/pipermail/accountability-cross-community/2015-May/003035...> and excerpt below):
Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms:
1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California.
As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission.
Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
participants (14)
-
Arun Sukumar -
Burr, Becky -
Chris Disspain -
Dr Eberhard W Lisse -
Drazek, Keith -
Malcolm Hutty -
Mathieu Weill -
parminder -
Paul Rosenzweig -
Phil Corwin -
Roelof Meijer -
Samantha Eisner -
Steve Crocker -
Steve DelBianco