Follow up from the last CCWG call
Hello all, I'd like to follow up from the last call for reconsideration being list as WS1 requirement. As you can see from the chat record of CCWG ACCT Session #18 we requested for more time to consider it since it is the first time we see this and and this was agreed by the chair. The current note from CCWG ACCT Session #18 call says "CONCLUSION: Reconsideration process is WS1. " May I suggest this to be revised as this is not consistent with what was agreed? As a feedback on reconsideration process, I support we consider this as a group, move fast on drafting requirements, identify ways to address it. At the sametime I have some reservations on making a decision at this point for this mechanims to be in WS1. We have at this point identified as WS1 : - Enhancing ICANN's Mission and Core Values - Develop Fundamental Bylaw - Strengthening the existing independent review process, and - Mechanisms for community empowerment which includes "recall the ICANN Board of Directors", "approve or prevent changes to the ICANN Bylaws, Mission and Core Values", "reject Board decisions on Strategic Plan and budget" It looks like we already have several core powers to ensure accountability of key decisions. I support the group to continue working on this, progress as much as possible, but I would like to see an overall picture of accountability mechanism based on what we have identifies already, before adding more as WS1. As a away forward, I would like to suggest that we continue working on this but to visit whether this should be in WS1 after we go through developing mechanisms for core requirements we have already identified powers for, have legal reviews, conduct stress test, rather than to make a decision at this point. I would be intersted to hear if anyone have other thoughts on why we have to make a decision at this point that this needs to be in WS1. Best Regards, Izumi Okutani
Thanks, Izumi for joining this conversation on reconsideration request. But we aren't adding it as a "new" issue to WS1 however, it has been in WS1 since the Frankfurt meeting in January. There are a couple additional issues that we need to bring in to the discussion on Reconsideration Request reform, however. One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before. There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request. I'd be interested to hear what others think of this circular aspect of the RR process. Thank you, Robin On Apr 7, 2015, at 7:20 AM, Izumi Okutani wrote:
Hello all,
I'd like to follow up from the last call for reconsideration being list as WS1 requirement.
As you can see from the chat record of CCWG ACCT Session #18 we requested for more time to consider it since it is the first time we see this and and this was agreed by the chair. The current note from CCWG ACCT Session #18 call says "CONCLUSION: Reconsideration process is WS1. " May I suggest this to be revised as this is not consistent with what was agreed?
As a feedback on reconsideration process, I support we consider this as a group, move fast on drafting requirements, identify ways to address it. At the sametime I have some reservations on making a decision at this point for this mechanims to be in WS1.
We have at this point identified as WS1 :
- Enhancing ICANN's Mission and Core Values - Develop Fundamental Bylaw - Strengthening the existing independent review process, and - Mechanisms for community empowerment which includes "recall the ICANN Board of Directors", "approve or prevent changes to the ICANN Bylaws, Mission and Core Values", "reject Board decisions on Strategic Plan and budget"
It looks like we already have several core powers to ensure accountability of key decisions.
I support the group to continue working on this, progress as much as possible, but I would like to see an overall picture of accountability mechanism based on what we have identifies already, before adding more as WS1.
As a away forward, I would like to suggest that we continue working on this but to visit whether this should be in WS1 after we go through developing mechanisms for core requirements we have already identified powers for, have legal reviews, conduct stress test, rather than to make a decision at this point.
I would be intersted to hear if anyone have other thoughts on why we have to make a decision at this point that this needs to be in WS1.
Best Regards, Izumi Okutani _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
The circular nature of the RR process is a significant concern. It is almost Kafka-esque. Greg On Tue, Apr 7, 2015 at 12:28 PM, Robin Gross <robin@ipjustice.org> wrote:
Thanks, Izumi for joining this conversation on reconsideration request. But we aren't adding it as a "new" issue to WS1 however, it has been in WS1 since the Frankfurt meeting in January.
There are a couple additional issues that we need to bring in to the discussion on Reconsideration Request reform, however.
One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before. There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request. I'd be interested to hear what others think of this circular aspect of the RR process.
Thank you, Robin
On Apr 7, 2015, at 7:20 AM, Izumi Okutani wrote:
Hello all,
I'd like to follow up from the last call for reconsideration being list as WS1 requirement.
As you can see from the chat record of CCWG ACCT Session #18 we requested for more time to consider it since it is the first time we see this and and this was agreed by the chair. The current note from CCWG ACCT Session #18 call says "CONCLUSION: Reconsideration process is WS1. " May I suggest this to be revised as this is not consistent with what was agreed?
As a feedback on reconsideration process, I support we consider this as a group, move fast on drafting requirements, identify ways to address it. At the sametime I have some reservations on making a decision at this point for this mechanims to be in WS1.
We have at this point identified as WS1 :
- Enhancing ICANN's Mission and Core Values - Develop Fundamental Bylaw - Strengthening the existing independent review process, and - Mechanisms for community empowerment which includes "recall the ICANN Board of Directors", "approve or prevent changes to the ICANN Bylaws, Mission and Core Values", "reject Board decisions on Strategic Plan and budget"
It looks like we already have several core powers to ensure accountability of key decisions.
I support the group to continue working on this, progress as much as possible, but I would like to see an overall picture of accountability mechanism based on what we have identifies already, before adding more as WS1.
As a away forward, I would like to suggest that we continue working on this but to visit whether this should be in WS1 after we go through developing mechanisms for core requirements we have already identified powers for, have legal reviews, conduct stress test, rather than to make a decision at this point.
I would be intersted to hear if anyone have other thoughts on why we have to make a decision at this point that this needs to be in WS1.
Best Regards, Izumi Okutani _______________________________________________ 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
-- *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* *Partner* *| IP | Technology | Media | Internet* *666 Third Avenue | New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>* *www.lawabel.com <http://www.lawabel.com/>*
On Tue, Apr 7, 2015 at 5:41 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
The circular nature of the RR process is a significant concern. It is almost Kafka-esque.
Of course, that's the re part of reconsideration. My impression is that one of the problems is that reconsideration takes place largely without much real new input for the Board to consider. The aggrieved party merely re-argues its case before the same people that made the initial decision. No surprise then that over 95% of reconsideration requests are unsuccessful. One approach to change this would be to include, at the Requestor's option, an intermediary process where the Ombudsman could look at the Request and make a recommendation to the Board for action/inaction. The basis of the recommendation would need to be stated (we perhaps would need to expand the remit of the Ombudsman, in this instance, to do so) and rather short time limits would need to be involved so decisions are reached in a reasonable timeframe, but it would be a way to get the contentious issue before a set of independent eyes before it reverts back to the Board. A bit less Kafka-esque and hopefully enough to make the reconsideration process as bit less predictable in terms of outcome and a better mechanism for true accountability. Ed
Greg
On Tue, Apr 7, 2015 at 12:28 PM, Robin Gross <robin@ipjustice.org> wrote:
Thanks, Izumi for joining this conversation on reconsideration request. But we aren't adding it as a "new" issue to WS1 however, it has been in WS1 since the Frankfurt meeting in January.
There are a couple additional issues that we need to bring in to the discussion on Reconsideration Request reform, however.
One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before. There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request. I'd be interested to hear what others think of this circular aspect of the RR process.
Thank you, Robin
On Apr 7, 2015, at 7:20 AM, Izumi Okutani wrote:
Hello all,
I'd like to follow up from the last call for reconsideration being list as WS1 requirement.
As you can see from the chat record of CCWG ACCT Session #18 we requested for more time to consider it since it is the first time we see this and and this was agreed by the chair. The current note from CCWG ACCT Session #18 call says "CONCLUSION: Reconsideration process is WS1. " May I suggest this to be revised as this is not consistent with what was agreed?
As a feedback on reconsideration process, I support we consider this as a group, move fast on drafting requirements, identify ways to address it. At the sametime I have some reservations on making a decision at this point for this mechanims to be in WS1.
We have at this point identified as WS1 :
- Enhancing ICANN's Mission and Core Values - Develop Fundamental Bylaw - Strengthening the existing independent review process, and - Mechanisms for community empowerment which includes "recall the ICANN Board of Directors", "approve or prevent changes to the ICANN Bylaws, Mission and Core Values", "reject Board decisions on Strategic Plan and budget"
It looks like we already have several core powers to ensure accountability of key decisions.
I support the group to continue working on this, progress as much as possible, but I would like to see an overall picture of accountability mechanism based on what we have identifies already, before adding more as WS1.
As a away forward, I would like to suggest that we continue working on this but to visit whether this should be in WS1 after we go through developing mechanisms for core requirements we have already identified powers for, have legal reviews, conduct stress test, rather than to make a decision at this point.
I would be intersted to hear if anyone have other thoughts on why we have to make a decision at this point that this needs to be in WS1.
Best Regards, Izumi Okutani _______________________________________________ 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
--
*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
*Partner* *| IP | Technology | Media | Internet*
*666 Third Avenue | New York, NY 10017-5621*
*Direct* 212-885-9253 *| **Main* 212-949-9022
*Fax* 212-949-9190 *|* *Cell *917-816-6428
*gsshatan@lawabel.com <gsshatan@lawabel.com>*
*ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>*
*www.lawabel.com <http://www.lawabel.com/>*
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I think there should be a role for the Ombudsman here. I'm not sure that making a recommendation to the Board is the right one. It may be that the Ombudsman should help the aggrieved party examine their case and help see if they can find grounds for a viable reconsideration. I know that Chris LaHatte participates in this list, and I would love to have his views on what would be the most "ombudsmanic" role for the Ombudsman in this case. Greg *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* *Partner* *| IP | Technology | Media | Internet* *666 Third Avenue | New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>* *www.lawabel.com <http://www.lawabel.com/>* On Tue, Apr 7, 2015 at 4:50 PM, Edward Morris <egmorris1@toast.net> wrote:
On Tue, Apr 7, 2015 at 5:41 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
The circular nature of the RR process is a significant concern. It is almost Kafka-esque.
Of course, that's the re part of reconsideration.
My impression is that one of the problems is that reconsideration takes place largely without much real new input for the Board to consider. The aggrieved party merely re-argues its case before the same people that made the initial decision. No surprise then that over 95% of reconsideration requests are unsuccessful.
One approach to change this would be to include, at the Requestor's option, an intermediary process where the Ombudsman could look at the Request and make a recommendation to the Board for action/inaction. The basis of the recommendation would need to be stated (we perhaps would need to expand the remit of the Ombudsman, in this instance, to do so) and rather short time limits would need to be involved so decisions are reached in a reasonable timeframe, but it would be a way to get the contentious issue before a set of independent eyes before it reverts back to the Board. A bit less Kafka-esque and hopefully enough to make the reconsideration process as bit less predictable in terms of outcome and a better mechanism for true accountability.
Ed
Greg
On Tue, Apr 7, 2015 at 12:28 PM, Robin Gross <robin@ipjustice.org> wrote:
Thanks, Izumi for joining this conversation on reconsideration request. But we aren't adding it as a "new" issue to WS1 however, it has been in WS1 since the Frankfurt meeting in January.
There are a couple additional issues that we need to bring in to the discussion on Reconsideration Request reform, however.
One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before. There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request. I'd be interested to hear what others think of this circular aspect of the RR process.
Thank you, Robin
On Apr 7, 2015, at 7:20 AM, Izumi Okutani wrote:
Hello all,
I'd like to follow up from the last call for reconsideration being list as WS1 requirement.
As you can see from the chat record of CCWG ACCT Session #18 we requested for more time to consider it since it is the first time we see this and and this was agreed by the chair. The current note from CCWG ACCT Session #18 call says "CONCLUSION: Reconsideration process is WS1. " May I suggest this to be revised as this is not consistent with what was agreed?
As a feedback on reconsideration process, I support we consider this as a group, move fast on drafting requirements, identify ways to address it. At the sametime I have some reservations on making a decision at this point for this mechanims to be in WS1.
We have at this point identified as WS1 :
- Enhancing ICANN's Mission and Core Values - Develop Fundamental Bylaw - Strengthening the existing independent review process, and - Mechanisms for community empowerment which includes "recall the ICANN Board of Directors", "approve or prevent changes to the ICANN Bylaws, Mission and Core Values", "reject Board decisions on Strategic Plan and budget"
It looks like we already have several core powers to ensure accountability of key decisions.
I support the group to continue working on this, progress as much as possible, but I would like to see an overall picture of accountability mechanism based on what we have identifies already, before adding more as WS1.
As a away forward, I would like to suggest that we continue working on this but to visit whether this should be in WS1 after we go through developing mechanisms for core requirements we have already identified powers for, have legal reviews, conduct stress test, rather than to make a decision at this point.
I would be intersted to hear if anyone have other thoughts on why we have to make a decision at this point that this needs to be in WS1.
Best Regards, Izumi Okutani _______________________________________________ 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
--
*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
*Partner* *| IP | Technology | Media | Internet*
*666 Third Avenue | New York, NY 10017-5621*
*Direct* 212-885-9253 *| **Main* 212-949-9022
*Fax* 212-949-9190 *|* *Cell *917-816-6428
*gsshatan@lawabel.com <gsshatan@lawabel.com>*
*ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>*
*www.lawabel.com <http://www.lawabel.com/>*
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I have had a role in reconsideration requests for some time. It has become the practice of the BGC in issuing a decision, to suggest to the parties that if they are unhappy with the process then they can bring the matter to me as the ombudsman. My role is of course limited to examining issues of fairness in the process. I do not have any jurisdiction, and nor should I have any, in examining the merits of any decision made by the BGC on a reconsideration. What I look at is whether the parties had proper opportunities to explain their grievance, and whether this was processed by the BGC in accordance with rules of natural justice. By this I mean whether the parties had a full opportunity to be heard, whether there was any material not disclosed to the parties but possibly used by the BGC in coming to a decision, whether there were any issues of bias and similar issues. The problem with designing a dispute resolution system is that you need to decide at an entry-level, what sort of disputes should qualify. I am not sure there is much debate or discussion on the range of issues which would qualify. This has some effect on my role as ombudsman, because I have a mandate to deal with the particular issues of fairness and delay within the community. Defining those terms has not always been simple. But other dispute resolution issues may not be appropriate for an ombudsman. The gateway for any system must therefore take into account the range of disputes and the appropriate forum. The ombudsman model, for example, uses informality, confidentiality, neutrality and investigates facts. There is considerable emphasis on the use of mediation and shuttle diplomacy and I am limited to making a recommendation. I cannot issue a binding decision. These are critical elements of any ombudsman office, because we adhere to the model used by the International Ombudsman Association, a professional body of ombudsman. If therefore the accountability examination is to review the way in which dispute resolution is handled within the ICANN community, we need to consider the way in which disputes are categorised, and the appropriate forum and procedure. If the ombudsman is to have a greater role, this needs to be considered in the context of the ombudsman model which I refer to briefly above. Disputes not suitable for the ombudsman need to be considered and outlined, and an appropriate procedure and forum created for them. The ombudsman would still have a role in ensuring that fairness in the process of the other forms of dispute resolution procedure continues to be observed. Please excuse this longer exchange, but I am anxious to ensure that people understand my role and function and mandate. Chris LaHatte Ombudsman Blog https://omblog.icann.org/ Webpage http://www.icann.org/en/help/ombudsman Confidentiality All matters brought before the Ombudsman shall be treated as confidential. The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint. The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, April 08, 2015 10:14 AM To: Edward Morris Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Follow up from the last CCWG call I think there should be a role for the Ombudsman here. I'm not sure that making a recommendation to the Board is the right one. It may be that the Ombudsman should help the aggrieved party examine their case and help see if they can find grounds for a viable reconsideration. I know that Chris LaHatte participates in this list, and I would love to have his views on what would be the most "ombudsmanic" role for the Ombudsman in this case. Greg Gregory S. Shatan * Abelman Frayne & Schwab Partner | IP | Technology | Media | Internet 666 Third Avenue | New York, NY 10017-5621 Direct 212-885-9253 | Main 212-949-9022 Fax 212-949-9190 | Cell 917-816-6428 gsshatan@lawabel.com <mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> www.lawabel.com <http://www.lawabel.com/> On Tue, Apr 7, 2015 at 4:50 PM, Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net> > wrote: On Tue, Apr 7, 2015 at 5:41 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > wrote: The circular nature of the RR process is a significant concern. It is almost Kafka-esque. Of course, that's the re part of reconsideration. My impression is that one of the problems is that reconsideration takes place largely without much real new input for the Board to consider. The aggrieved party merely re-argues its case before the same people that made the initial decision. No surprise then that over 95% of reconsideration requests are unsuccessful. One approach to change this would be to include, at the Requestor's option, an intermediary process where the Ombudsman could look at the Request and make a recommendation to the Board for action/inaction. The basis of the recommendation would need to be stated (we perhaps would need to expand the remit of the Ombudsman, in this instance, to do so) and rather short time limits would need to be involved so decisions are reached in a reasonable timeframe, but it would be a way to get the contentious issue before a set of independent eyes before it reverts back to the Board. A bit less Kafka-esque and hopefully enough to make the reconsideration process as bit less predictable in terms of outcome and a better mechanism for true accountability. Ed Greg On Tue, Apr 7, 2015 at 12:28 PM, Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org> > wrote: Thanks, Izumi for joining this conversation on reconsideration request. But we aren't adding it as a "new" issue to WS1 however, it has been in WS1 since the Frankfurt meeting in January. There are a couple additional issues that we need to bring in to the discussion on Reconsideration Request reform, however. One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before. There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request. I'd be interested to hear what others think of this circular aspect of the RR process. Thank you, Robin On Apr 7, 2015, at 7:20 AM, Izumi Okutani wrote:
Hello all,
I'd like to follow up from the last call for reconsideration being list as WS1 requirement.
As you can see from the chat record of CCWG ACCT Session #18 we requested for more time to consider it since it is the first time we see this and and this was agreed by the chair. The current note from CCWG ACCT Session #18 call says "CONCLUSION: Reconsideration process is WS1. " May I suggest this to be revised as this is not consistent with what was agreed?
As a feedback on reconsideration process, I support we consider this as a group, move fast on drafting requirements, identify ways to address it. At the sametime I have some reservations on making a decision at this point for this mechanims to be in WS1.
We have at this point identified as WS1 :
- Enhancing ICANN's Mission and Core Values - Develop Fundamental Bylaw - Strengthening the existing independent review process, and - Mechanisms for community empowerment which includes "recall the ICANN Board of Directors", "approve or prevent changes to the ICANN Bylaws, Mission and Core Values", "reject Board decisions on Strategic Plan and budget"
It looks like we already have several core powers to ensure accountability of key decisions.
I support the group to continue working on this, progress as much as possible, but I would like to see an overall picture of accountability mechanism based on what we have identifies already, before adding more as WS1.
As a away forward, I would like to suggest that we continue working on this but to visit whether this should be in WS1 after we go through developing mechanisms for core requirements we have already identified powers for, have legal reviews, conduct stress test, rather than to make a decision at this point.
I would be intersted to hear if anyone have other thoughts on why we have to make a decision at this point that this needs to be in WS1.
Best Regards, Izumi Okutani _______________________________________________ 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 -- Gregory S. Shatan * Abelman Frayne & Schwab Partner | IP | Technology | Media | Internet 666 Third Avenue | New York, NY 10017-5621 Direct 212-885-9253 <tel:212-885-9253> | Main 212-949-9022 <tel:212-949-9022> Fax 212-949-9190 <tel:212-949-9190> | Cell 917-816-6428 <tel:917-816-6428> gsshatan@lawabel.com <mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> www.lawabel.com <http://www.lawabel.com/> _______________________________________________ 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
Hello Robin,
One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before. There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request. I'd be interested to hear what others think of this circular aspect of the RR process.
Note that the current reconsideration process has three broad categories of request: a. one or more staff actions or inactions that contradict established ICANN policy(ies); or b. one or more actions or inactions of the ICANN Board that have been taken or refused to be taken without consideration of material information, except where the party submitting the request could have submitted, but did not submit, the information for the Board's consideration at the time of action or refusal to act; or c. one or more actions or inactions of the ICANN Board that are taken as a result of the Board's reliance on false or inaccurate material information The majority of the re-consideration requests in the past couple of years have been in category (a) above. It is rare that the request is able to argue a contradiction to policy - but the board in this case is a "second set of eyes". In most cases the complainant wants the staff decision (usually an external panel) to be reconsidered on its merits - not whether it is consistent with an ICANN policy. There is not currently a mechanism to allow a second set of experts to review the original panel decision on its merits. The cases where the complaint has been successful is where a process has not been followed correctly by a panel. In the case of (b) - this does involve a Board decision - but rarely to complainants provide any new material information that relates to the decision. If there is new material information - it does seem reasonable that the original set of eyes is able to see if that information would change their decision. I have yet to see a case of (c) - where the complaint has been able to show that the information used by the Board was false. I do like your idea though of having another body (including potentially the ombudsman) to have an arms length review of the process. Current ICANN uses its external counsel to give a review of the matter that is independent of staff - but the external law firm is clearly acting on behalf of the organization rather than the complainant. The external firm focusses on ensuring that the original panel followed all the rules in making its decision. Regards, Bruce Tonkin
I feel obliged to point out that the last time the Reconsideration Committee was called out for providing no real level of accountability, it was recommended that non board members be included on the committee. What happened to that solution? Also with respect to reasons b) and c). These avenues are made somewhat impossible by the fact that ICANN assesses whether the release of any information will cause its decisions to be questioned when deciding (under another equally worthless accountability measure, the DIDP) whether to release any information. This happened recently with the hotels IRP. In other words, it's a rigged game. These huge flaws have been known for some time. What continues to prevent the Board from tackling them? Kieren - [sent through phone] On Wed, Apr 8, 2015 at 3:39 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Robin,
One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before. There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request. I'd be interested to hear what others think of this circular aspect of the RR process. Note that the current reconsideration process has three broad categories of request: a. one or more staff actions or inactions that contradict established ICANN policy(ies); or b. one or more actions or inactions of the ICANN Board that have been taken or refused to be taken without consideration of material information, except where the party submitting the request could have submitted, but did not submit, the information for the Board's consideration at the time of action or refusal to act; or c. one or more actions or inactions of the ICANN Board that are taken as a result of the Board's reliance on false or inaccurate material information The majority of the re-consideration requests in the past couple of years have been in category (a) above. It is rare that the request is able to argue a contradiction to policy - but the board in this case is a "second set of eyes". In most cases the complainant wants the staff decision (usually an external panel) to be reconsidered on its merits - not whether it is consistent with an ICANN policy. There is not currently a mechanism to allow a second set of experts to review the original panel decision on its merits. The cases where the complaint has been successful is where a process has not been followed correctly by a panel. In the case of (b) - this does involve a Board decision - but rarely to complainants provide any new material information that relates to the decision. If there is new material information - it does seem reasonable that the original set of eyes is able to see if that information would change their decision. I have yet to see a case of (c) - where the complaint has been able to show that the information used by the Board was false. I do like your idea though of having another body (including potentially the ombudsman) to have an arms length review of the process. Current ICANN uses its external counsel to give a review of the matter that is independent of staff - but the external law firm is clearly acting on behalf of the organization rather than the complainant. The external firm focusses on ensuring that the original panel followed all the rules in making its decision. Regards, Bruce Tonkin
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Sure Robin, I totally support considering those issues and to have this included in the public comments. Thank you infact for the work you are doing in this short time frame. I see some additional posts on this and I trust we will be making good progress. I suppose what I would like to confirm is whether to make it a must at this point to have a complete, finalised solution on reconsideration for submssion to the NTIA. Given we have some reasonable progress on this issue, with assurance that remaining open issues will be addressed with other mechanisms to be inplace which would strengthen ICANN's accountability, we could give it some flexbilities to incorporate what will then has been worked on until that point, even if it may not necessarily be the perfectly agreed solution in all details. I would like to have a chance to revisit and consider this at the point when we are closer to the target date, depending on the progress. Thanks, Izumi On 2015/04/08 1:28, Robin Gross wrote:
Thanks, Izumi for joining this conversation on reconsideration request. But we aren't adding it as a "new" issue to WS1 however, it has been in WS1 since the Frankfurt meeting in January.
There are a couple additional issues that we need to bring in to the discussion on Reconsideration Request reform, however.
One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before. There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request. I'd be interested to hear what others think of this circular aspect of the RR process.
Thank you, Robin
On Apr 7, 2015, at 7:20 AM, Izumi Okutani wrote:
Hello all,
I'd like to follow up from the last call for reconsideratiSure Robin, I totally support considering those issues and I'm good to have this included in the public comments. Thank you infact for all the work you are doing in this short time frame.
I trust we will be making good progress and I suppose what I would like to confirm is whether we have to make a it must to have a complete, finalised solution for submssion to the NTIA. Alternative could be, given we have some reasonable progress on this issue with assurance remaining open issues will be addressed as with other mechanisms to be place which would strengthen ICANN's accountability, we give it some flexbilities to incorporate what has been worked until on that point and not necessarily wait for the perfectly agreed solution. I would like to have a chance to revisit and consider this at the point when we are close the the target date, depending on the progress. Izumion being list as WS1 requirement.
As you can see from the chat record of CCWG ACCT Session #18 we requested for more time to consider it since it is the first time we see this and and this was agreed by the chair. The current note from CCWG ACCT Session #18 call says "CONCLUSION: Reconsideration process is WS1. " May I suggest this to be revised as this is not consistent with what was agreed?
As a feedback on reconsideration process, I support we consider this as a group, move fast on drafting requirements, identify ways to address it. At the sametime I have some reservations on making a decision at this point for this mechanims to be in WS1.
We have at this point identified as WS1 :
- Enhancing ICANN's Mission and Core Values - Develop Fundamental Bylaw - Strengthening the existing independent review process, and - Mechanisms for community empowerment which includes "recall the ICANN Board of Directors", "approve or prevent changes to the ICANN Bylaws, Mission and Core Values", "reject Board decisions on Strategic Plan and budget"
It looks like we already have several core powers to ensure accountability of key decisions.
I support the group to continue working on this, progress as much as possible, but I would like to see an overall picture of accountability mechanism based on what we have identifies already, before adding more as WS1.
As a away forward, I would like to suggest that we continue working on this but to visit whether this should be in WS1 after we go through developing mechanisms for core requirements we have already identified powers for, have legal reviews, conduct stress test, rather than to make a decision at this point.
I would be intersted to hear if anyone have other thoughts on why we have to make a decision at this point that this needs to be in WS1.
Best Regards, Izumi Okutani _______________________________________________ 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
I was surprised by how deep the proposed amendments to the reconsideration process are. Has there been deep discussion about this? From what I can tell from these notes it is going to be more complex and in depth than the IRP process, which doesn't seem to make and sense. Also, from a gTLD perspective, we know that in future any new gTLD that isn't decided by auction will go through the full accountability process. We need to take a holistic look at the end to end process and stress test it rather than testing individual bits. The devil will be in the gaps. If these amendments go through one would expect almost every community decision to be subjected to a reconsideration request process, because why not? That doesn't equate to an increase in accountability imo, just an increase in legal fees. -- Further comments below: - Issue of standing: there was a thought to amend who has proper standing to file reconsideration request i.e. widen its scope and include any party that is impacted by ICANN's decision or inaction. *What is the standard for this and how could it be enforced? * - Standard of review: Amend standard to include reexamination of underline merits of arguments/decisions and broaden type of decisions that can be reexamined; amend when Board Governance Committee may dismiss a request; clarify that a frivolous claim amounts to a cost that would extraordinary in nature; word changes (actual to notice etc); *What's the difference between the RR and IRP then? Won't this bog down the board if they start to face many RRs? * - Composition: Less reliance on legal department to guide Board Governance Committee on its recommendations and recommend more Board members engagement early on in decision amend rules so that Board governance committee cannot make final decisions without fuller Board briefing and discussion of issues; call for more transparency in decision-making process. *So RR is to become a full time job for board members? That sounds fun. * - Precedential value: Ability to challenge precedential value of previous decisions without reopening old cases. *What? Why? * - Accessibility: Extending time deadline for filing reconsideration request to 60 days from when requestor learns decision. *The RR already takes 4-6 months. There is no certainty on when the BGC meets and when minutes will be published. Are we going to end up with an RR that is more in depth and lengthy than the IRP, and through which all ICANN decisions must funnel? * - Implementation: Follow-up process regarding implementation of the decision. *What is this? * - Process concerns: Briefing materials sent to Board should be provided, subject to confidentiality; final decisions should be issued sooner; criteria for urgent requests should be broadened. *Few will avail themselves of urgent requests. The IRP currently has an expedited process via the ICDR but no one is using it. The core process should be quick in and of itself. * Jacob Malthouse Co-founder & Director, Big Room Inc. 778-960-6527 www.bigroom.ca On 8 April 2015 at 08:37, Izumi Okutani <izumi@nic.ad.jp> wrote:
Sure Robin, I totally support considering those issues and to have this included in the public comments. Thank you infact for the work you are doing in this short time frame.
I see some additional posts on this and I trust we will be making good progress. I suppose what I would like to confirm is whether to make it a must at this point to have a complete, finalised solution on reconsideration for submssion to the NTIA.
Given we have some reasonable progress on this issue, with assurance that remaining open issues will be addressed with other mechanisms to be inplace which would strengthen ICANN's accountability, we could give it some flexbilities to incorporate what will then has been worked on until that point, even if it may not necessarily be the perfectly agreed solution in all details. I would like to have a chance to revisit and consider this at the point when we are closer to the target date, depending on the progress.
Thanks, Izumi
On 2015/04/08 1:28, Robin Gross wrote:
Thanks, Izumi for joining this conversation on reconsideration request. But we aren't adding it as a "new" issue to WS1 however, it has been in WS1 since the Frankfurt meeting in January.
There are a couple additional issues that we need to bring in to the discussion on Reconsideration Request reform, however.
One issue has been brought up about the problem of the circular nature of the RR process at this point - that it is basically asking the board to decide if it was right before. There was some suggestion that we need to look at this circular aspect of the issue as well, and possibly find a mechanism that provides for a different set of eyes making the first cut when at looking at the merits of Request. I'd be interested to hear what others think of this circular aspect of the RR process.
Thank you, Robin
On Apr 7, 2015, at 7:20 AM, Izumi Okutani wrote:
Hello all,
I'd like to follow up from the last call for reconsideratiSure Robin, I totally support considering those issues and I'm good to have this included in the public comments. Thank you infact for all the work you are doing in this short time frame.
I trust we will be making good progress and I suppose what I would like to confirm is whether we have to make a it must to have a complete, finalised solution for submssion to the NTIA.
Alternative could be, given we have some reasonable progress on this issue with assurance remaining open issues will be addressed as with other mechanisms to be place which would strengthen ICANN's accountability, we give it some flexbilities to incorporate what has been worked until on that point and not necessarily wait for the perfectly agreed solution. I would like to have a chance to revisit and consider this at the point when we are close the the target date, depending on the progress.
Izumion being list as WS1 requirement.
As you can see from the chat record of CCWG ACCT Session #18 we
requested for more time to consider it since it is the first time we see this and and this was agreed by the chair.
The current note from CCWG ACCT Session #18 call says "CONCLUSION: Reconsideration process is WS1. " May I suggest this to be revised as this is not consistent with what was agreed?
As a feedback on reconsideration process, I support we consider this as a group, move fast on drafting requirements, identify ways to address it. At the sametime I have some reservations on making a decision at this point for this mechanims to be in WS1.
We have at this point identified as WS1 :
- Enhancing ICANN's Mission and Core Values - Develop Fundamental Bylaw - Strengthening the existing independent review process, and - Mechanisms for community empowerment which includes "recall the ICANN Board of Directors", "approve or prevent changes to the ICANN Bylaws, Mission and Core Values", "reject Board decisions on Strategic Plan and budget"
It looks like we already have several core powers to ensure accountability of key decisions.
I support the group to continue working on this, progress as much as possible, but I would like to see an overall picture of accountability mechanism based on what we have identifies already, before adding more as WS1.
As a away forward, I would like to suggest that we continue working on this but to visit whether this should be in WS1 after we go through developing mechanisms for core requirements we have already identified powers for, have legal reviews, conduct stress test, rather than to make a decision at this point.
I would be intersted to hear if anyone have other thoughts on why we have to make a decision at this point that this needs to be in WS1.
Best Regards, Izumi Okutani _______________________________________________ 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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
participants (8)
-
Bruce Tonkin -
Chris LaHatte -
Edward Morris -
Greg Shatan -
Izumi Okutani -
Jacob Malthouse -
Kieren McCarthy -
Robin Gross