As I was not at ICANN52, I missed that in the back and forth.  I am, of
course, delighted that we get to write the standard!!  More power to me!
[That's a joke friends!]

More seriously, then, if we are to write the standard, we will want to very
carefully define the scopoe of ICANN activity ..... should be interesting
work
P

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


-----Original Message-----
From: Burr, Becky [mailto:Becky.Burr@neustar.biz]
Sent: Tuesday, February 24, 2015 11:37 AM
To: Malcolm Hutty; Paul Rosenzweig; wp2@icann.org
Cc: 'Thomas Rickert'

Subject: Re: [Party2] Doodle Poll and Docs for ACCT WP2

With respect to our task, Jordan and I have chatted and agreed that the
standard falls into our work stream


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






On 2/24/15, 11:34 AM, "Malcolm Hutty" <malcolm@linx.net> wrote:

>
>
>On 24/02/2015 15:24, Paul Rosenzweig wrote:
>> Colleagues
>>
>>
>>
>> Let me get this started with a very simple statement of four
>> principles that I think must be incorporated in any
>> redress/accountability proposal
>
>Paul,
>
>Thank you for kicking the discussion off with from such a thoughtful
>starting point.
>
>It prompts some immediate reactions on my part.
>
>
>> First, a standard is essential.  That is the limiting function that
>> defines what it is that ICANN and/or the Board may do and what, in
>> turn, they may not do.
>
>I agree, and saw the presentation from Becky at ICANN52 as starting
>that discussion very helpfully. I was therefore rather surprised to see
>you write this:
>
>>  I suspect that the actual content of that standard is not for WP2 to
>> determine (for myself I want it as narrow as possible).
>> That standard will come from elsewhere (WP1, CCWG, or CWG) as those
>> processes move forward.
>
>From Becky's presentation, I had understood that this WP2 would
>absolutely be considering the standard. If that's not the case, I think
>we need to flag up to the Co-Chairs the need for urgent clarification
>of where this discussion ought to take place - perhaps a WP3
>specifically on that question?
>
>I think we can rule out CWG-Stewardship; they have explicitly ruled
>most of this out of scope for their group.
>
>>  Our task is to insure that a) such standards are formulated; and b)
>> that they are formulated in a manner that is capable of  that
>> adjudication.  Our input should be to make the terms of the standard
>> as well-defined as drafters are capable of.
>
>Agree.
>
>>
>>
>> Second, our biggest difficulty, in my judgment, will be in defining
>> who is an ³affected party.²  As we have seen in the broader debate
>> over ³public interest² in some sense everyone in the world is an affected
>> party.  That, of course, is untenable.   We need to give some definition
>> as to who has ³standing² (that¹s an American legal phrase reflecting
>> who may bring a suit) to initiate a complaint.  My instinct is to
>> allow it to be a) both directly affected parties ­ that is people
>> with contracts and/or commercial interests in the IANA function; and
>> b) certain representative organizations can reflect the broader
>> interests of certain constituencies.  These may or may not be the
>> existing SO/AC types.  An area I think needs some real consideration
>
>I disagree with your claim that it is untenable to grant standing to
>any party materially affected by an ICANN decision or action.
>
>I also don't believe it is at all acceptable to limit standing to
>contracted parties: that is one of the major flaws in the existing IRP
>provisions that needs to be corrected. Non-contracted parties have
>legitimate interests too. For example, inasmuch as non-contracted
>parties are consulted by ICANN in its decision-making and policy
>formulation, they equally have an interest in ICANN following its own
>procedures and bylaws. For another, I believe you and I share the view
>that a major concern is the possibilibility of scope creep by ICANN
>resulting in a negative impact other parties' interests without any
>legitimate authority to do so: non-contracted parties (and especially,
>registrants) are absolutely as interested in that as contracted ones.
>
>Let me give you a scenario. Suppose that ICANN deciding that fishing
>was
>bad: fish stocks are heavily depleted and fishing is harming the
>environment and leading to species extinction. In support of that view,
>ICANN consensus policy determines that no domains should be registered
>that promoted fishing or the consumption of fish. This policy would be
>enforced throughout all gTLDs via the RAA; any end-user domain found in
>violation of this policy was subject to immediate cancellation.
>In such a circumstance, I would expect that any individual fisherman
>ought to be able to challenge the policy on the grounds that (i) the
>policy seeks to extend ICANN's control of gTLD policy to regulate an
>unrelated activity, namely fishing, and so was outside ICANN's proper
>scope and void and (ii) as a fisherman, he was materially affected by
>the inability to register a domain in support of his business, and so
>had proper standing to bring such a complaint. Such a fisherman ought
>not to be told that ICANN accountability measures are unavailable to
>him, or that in order to access them he must first obtain the support
>of an ICANN constituency. He has a legitimate complaint, and should be
>heard in his own right.
>
>I would suggest that the main requirements underlying the fear of
>"untenability" to which you refer are really the need to prevent ICANN
>being stymied by frivolous or vexatious objections, or be forced to
>perpetually re-litigate issues that have already been adequately
>reviewed. Limiting standing is at best an indirect way of addressing
>these issues, and one that risks leaving ICANN unaccountable to those
>materially impacted by its policies. Surely these concerns could be
>addressed directly?
>
>That doesn't mean that I would remove any requirement for standing[*].
>I wouldn't say that my fisherman is materially impacted by the outcome
>in .wine, say, or in domain tasting rules. But a competent tribunal
>ought to be able to determine on the facts and circumstances whether a
>party is materially affected by the outcome of a dispute; courts and
>arbitrators apply this and related standards in other fields all the time.
>
>We can, of course, have a discussion about where to set the threshold
>for standing too: "materially affected by" is higher than "a legitimate
>interest in", but lower than "would suffer serious harm from", for
>example.
>
>[ * or rather, I would keep some test of standing for individuals. I
>don't think I would for ICANN community components: the GAC, or the
>GNSO, or perhaps even any ICANN constituency should automatically have
>standing to trigger a review process in (many/most/all?) matters,
>without need to demonstrate harm or loss. But maybe that is a WP1
>matter.]
>
>> Third, the binding and independent nature of the review is to my mind
>> the non-negotiable bear minimum of accountability ­ a man or a
>> company shall not be a judge in its own case is a principal of the
>> rule of law with a long provenance for good reason!  I am less
>> concerned with exactly how this independent review is created and
>> whether it is juridical (e.g. through the California courts) or
>> arbitral (through some international arbitration body).  I think it
>> should be funded by ICANN as a certain mandated level that may not be
>> reduced and that its existence and funding need to be in the
>> Bylaws/Contract/Charter in a way that cannot be amended.
>
>I agree on the bare minimum you propose. I doubt that a court process
>is appropriate (as this community will want to create its own
>standards, that may impose more strict requirements on ICANN than the
>ordinary law would on a private company), and anticipate objections
>from members of the community already concerned about US influence;
>such concerns should be mitigated rather than exacerbated, as would be
>the case if we introduce a new role for the California courts.
>
>> Finally, the provision of non Amendment by ICANN is an unfortunate
>> necessity.
>
>Here I think you are overstating it slightly. Some possibility of
>amendment should exist, but it should be through a process that
>requires a high-level of community support, and not a unilateral action
>by the ICANN Board. I would think that establishing a suitable process
>for amendment would be a core issue for WP1.
>
>> Given the way the Board limited the IRP in April 2013 after it lost
>> the .xxx case and given its failure thus far to fully implement the
>> ATRT recommendations, we need to insiste that the redress process
>> both be created and brought into existence before the IANA transition.
>
>I would like to think that a firm commitment would be sufficient, but
>have heard enough about slow-, partial- or non- implementation in
>related areas to have certain misgiving myself. I suggest we leave this
>until last.
>
>
>>
>>
>> As I said, these are my initial thoughts, more as the way of
>> jump-starting the conversation than as a final ending point.
>>
>>
>>
>> Cheers
>>
>> 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
>>
>><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchcons
>>ult
>>ing.com_index.php-3Foption-3Dcom-5Fcontent-26view-3Darticle-26id-3D19-
>>26I
>>temid-3D9&d=AwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8Tj
>>Dmr
>>xdYahOP8WDDkMr4k&m=Ig2519ehwmCW6CCqBz_qY84N3tgA2fLF2pwu7iEQulw&s=mrTS5
>>2Xl BxoOzv9FePHqO2e0VXIw1TNeDW6VzDZHpeg&e= >
>>
>>
>><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference
>>.co
>>m_events_us15_register-3Futm-5Fsource-3Dinhouse-26utm-5Fmedium-3Demail
>>-26
>>utm-5Fcampaign-3Dsignature-2Dus2015&d=AwIF-g&c=MOptNlVtIETeDALC_lULrw&
>>r=6
>>2cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Ig2519ehwmCW6CCqBz_qY84N3

>>tgA 2fLF2pwu7iEQulw&s=3_yGh8BlWKoW4rX2JIj9ldmhxj-MJ81-HBN2c07JmLc&e= >

>>
>>
>>
>> *From:*Burr, Becky [mailto:Becky.Burr@neustar.biz]
>> *Sent:* Monday, February 23, 2015 8:20 PM
>> *To:* wp2@icann.org
>> *Cc:* Thomas Rickert
>> *Subject:* [Party2] Doodle Poll and Docs for ACCT WP2
>>
>>
>>
>> Hello WP2-
>>
>>
>>
>> Apologies for the slow start, but I¹ve now cleared the decks to focus
>> on this project.
>>
>>
>>
>> You should have received a link to the Doodle Poll to schedule calls
>>for  this working party.  If you did not, please use
>> this:
>>https://urldefense.proofpoint.com/v2/url?u=https-3A__doodle.com_htxbr2
>>inp
>>curzi4k&d=AwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDm
>>rxd
>>YahOP8WDDkMr4k&m=Ig2519ehwmCW6CCqBz_qY84N3tgA2fLF2pwu7iEQulw&s=jVSWyY_
>>f67
>>Bqk_ozavS7_Ue4miAp9sJAW2OSkeFnYmM&e=
>>
>>
>>
>> I¹ve attached a revised Scope document that reflects the work of WP1
>> to date to attempt to clarify the division of labor.  I¹ve also
>> attached a draft working plan, and the power point previously
>> circulated on a ³standard² for ICANN.  Jordan and I will chat, but
>> the location for this work is not entirely clear to me.
>>
>>
>>
>> Thanks,
>>
>> Becky
>>
>>
>>
>>
>>
>> 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>
>>
>>
>>
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>>O9e C34-YCvh0NIDb_ao6S1Lt-LFHdFVocQ7_6duViQ&e=

>>
>
>--
>            Malcolm Hutty | tel: +44 20 7645 3523
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