- wp2-independentreview - lists.icann.org

Comments on the proposal
by David Post June 4, 2015

June 4, 2015

[with apologes for x-posting] Just in case those of you on these lists don't have enough to read about the Accountability proposal, I've attached the comments that we (Danielle Kehl and I) submitted yesterday. David ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Re: [independent review] [Info] "Controlling Internet infrastructure"
by David Post May 1, 2015

May 1, 2015

All [Apologies for cross-posting to the various lists] Danielle Kehl and I have just published a background paper on the IANA transition for the Open Technology Institute - <http://www.newamerica.org/oti/controlling-internet-infrastructure/>http://www.newamerica.org/oti/controlling-internet-infrastructure/ There probably isn't a great deal in there that those of you who are already participants on this list are unfamiliar with. The target audience comprises those people who have not been following DNS policy matters and who know nothing or next-to-nothing about ICANN, or IANA, or the DNS. We hope we've filled a gap in the existing writings on the subject, something that can help someone who is completely unfamiliar with the territory to understand just what is going on with the IANA transition, and why it matters as much as we think it does for the Internet going forward -- Needless to say, please feel free to re-circulate to anyone you think might find it useful - even your local Congressperson! And comments etc. are always welcome - There will be a second piece coming out shortly that will dive more deeply into the specifics of the various proposals now under consideration, with particular attention on the "accountability" discussions - Regards, David ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com ******************************* ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Re: [independent review] [WP2] Independent Review
by David Post April 19, 2015

April 19, 2015

I think there's a danger in trying to be too explicit about the required skill set for IRP panelists. First, I agree with Paul's original comment that "an ICANN reviewer has to be able to understand and address five arenas/communities: technical, civil society, business, diplomatic and regulatory." But I take that to refer to the competence of the Panel as a whole, not necessarily to the competence of any single panelist. I think the Panel - which in my opinion should, for reasons I put forward in an earlier email, decide all cases as a whole - will need to have this kind of very broad skill set if it is to do its job well; but the best way to achieve that isn't necessarily to say that every panelist has to have the whole bundle of skills and experience (which would eliminate a lot of people who I suspect would be very effective members of the panel). Second, it seems to me to be a little premature to be too specific about the requirements for a "good" panelist. We don't really know yet how this institution is actually going to function - the kinds of claims that it is going to be hearing or the role that it will end up playing in the DNS ecosystem. Getting too specific about qualifications in advance can interfere with the institution's ability to evolve over time. Third, because it can be difficult to determine objectively whether any one individual appointee has any particular competence - whether someone really understands the technologies involved, or the principles of international law, or institutional mechanics, or whatever qualifications might be imposed - these kinds of specifications are very difficult to enforce down the road, and they become suggestions for whomever is making the appointment decision rather than meaningful constraints. If the Board is to select Panel members (subject to some process for community approval), which I think is the current proposal, I think that a better way to get people with the "right" skill sets onto the Panel is to focus on making sure that the approval process has real "teeth" and will require the Board to find people who are well qualified for the job. David At 04:22 PM 4/16/2015, James Gannon wrote: >Speaking as one of the 'techies' around here I would think that to >maximize the value and required experience of the panels that while >a solid understanding of the technologies involved should be a >requirement, there should be facility made to allow the panel to >seek expert independent technical opinions where necessary rather >than having technical expertise sit on the panel. There may be >situations where panelists happen to be technical experts but I >don't think that we need to have 'has a published RFC' as a >requirement (To analogize) > >From: wp2-independentreview-bounces(a)icann.org >[mailto:wp2-independentreview-bounces@icann.org] On Behalf Of Burr, Becky >Sent: Thursday, April 16, 2015 9:16 PM >To: Paul Twomey; Perez Galindo, Rafael; Paul Rosenzweig >Cc: wp2(a)icann.org; wp2-independentreview(a)icann.org >Subject: Re: [independent review] [WP2] Independent Review > >I am adding a list of questions to the template we reviewed in >Istanbul and will include this as something on which we are seeking >community input. Increasing the diversity of the requisite skill >set will increase the size of the standing panel. Clearly, the >panelists must have a good technical baseline understanding of the >DNS, and the interest/aptitude/comfort to deal with technical >issues, and technical and other expertise needs to be available to >the panel in appropriate cases, e.g., in cases where the question >turns on whether an action or inaction falls within ICANN's mission >statement. But to the extent we are focused on the Commitments and >Core Values, which are largely due process oriented, how much >technical expertise is required? > >FWIW, some of my best friends are hard core techies -; > >J. Beckwith Burr >Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer >1775 Pennsylvania Avenue NW, Washington, DC 20006 >Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / ><mailto:becky.burr@neustar.biz>becky.burr(a)neustar.biz / www.neustar.biz > >From: Paul Twomey ><<mailto:Paul.Twomey@argopacific.com>Paul.Twomey(a)argopacific.com> >Date: Thursday, April 9, 2015 at 5:14 PM >To: "Perez Galindo, Rafael" ><<mailto:RPEREZGA@minetur.es>RPEREZGA(a)minetur.es>, Becky Burr ><<mailto:becky.burr@neustar.biz>becky.burr(a)neustar.biz>, Paul >Rosenzweig ><<mailto:paul.rosenzweig@redbranchconsulting.com>paul.rosenzweig(a)redbranchconsulting.com> >Cc: "<mailto:wp2@icann.org>wp2(a)icann.org" ><<mailto:wp2@icann.org>wp2(a)icann.org>, >"<mailto:wp2-independentreview@icann.org>wp2-independentreview(a)icann.org" ><<mailto:wp2-independentreview@icann.org>wp2-independentreview(a)icann.org> >Subject: Re: [WP2] [independent review] Independent Review > >Becky (and team) > >I have been following this area and your excellent considerations >for some time. (And have been commenting outside on the need to a >standing, high level Independent Review mechanism - ><https://urldefense.proofpoint.com/v2/url?u=https-3A__ourinternet.org_-23pub…>https://ourinternet.org/#publications/legal-mechanisms-for-governing-the-tr… >) > >One question you pose on the chart is the required skill set. I >think that this should be more than just senior legal. Having >watched the community for 18 years, it strikes me that an ICANN >reviewer has to be able to understand and address five >arenas/communities: technical, civil society, business, diplomatic >and regulatory. While lawyers and public policy experts can >achieve this, and be recognized by others as having key skills, I >have found that there is great benefit with mixing senior technical >people who not only bring a technical educational value, but also, >frankly, are more likely to gain the esteem of the hard-core >technical community (who for some reason do not have high regard for >lawyers, etc.... ) It has certainly been of benefit at the Board. > >Best > >Paul > > > > > > >-- > > >Dr Paul Twomey > > >Managing Director > > >Argo P@cific > > > > > >US Cell: +1 310 279 2366 > > >Aust M: +61 416 238 501 > > > > > ><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.argopacific.com&d=A…>www.argopacific.com > >******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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Re: [independent review] [WP2] Independent Review
by Paul Rosenzweig April 17, 2015

April 17, 2015

I assume that the IRP would be able to solicit independent expert technical advice when and as required … and we might try to find a way to encourage them to do so … P Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig(a)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…> Link to my PGP Key <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_me…> From: Edward Morris [mailto:egmorris1@toast.net] Sent: Thursday, April 16, 2015 9:13 PM To: Burr, Becky Cc: Paul Twomey; Perez Galindo, Rafael; Paul Rosenzweig; wp2(a)icann.org; wp2-independentreview(a)icann.org Subject: Re: [WP2] [independent review] Independent Review I, too, question the relevance of deep technical knowledge on the standing panel. There have been fourteen IRP's filed to date and none of them seem to have required intensive technical expertise. The new IRP will be dealing with a broader range of questions, at least I hope it will, but I have no reason to expect it will suddenly become a forum dealing to any great extent with technical disputes. Knowledge of procedure, precedence and, perhaps, a bit of a background in i.p. law all are likely to be of greater value to the standing panel. Best, Ed On Thu, Apr 16, 2015 at 9:15 PM, Burr, Becky <Becky.Burr(a)neustar.biz <mailto:Becky.Burr@neustar.biz> > wrote: I am adding a list of questions to the template we reviewed in Istanbul and will include this as something on which we are seeking community input. Increasing the diversity of the requisite skill set will increase the size of the standing panel. Clearly, the panelists must have a good technical baseline understanding of the DNS, and the interest/aptitude/comfort to deal with technical issues, and technical and other expertise needs to be available to the panel in appropriate cases, e.g., in cases where the question turns on whether an action or inaction falls within ICANN’s mission statement. But to the extent we are focused on the Commitments and Core Values, which are largely due process oriented, how much technical expertise is required? FWIW, some of my best friends are hard core techies -; J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> / becky.burr(a)neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz> From: Paul Twomey <Paul.Twomey(a)argopacific.com <mailto:Paul.Twomey@argopacific.com> > Date: Thursday, April 9, 2015 at 5:14 PM To: "Perez Galindo, Rafael" <RPEREZGA(a)minetur.es <mailto:RPEREZGA@minetur.es> >, Becky Burr <becky.burr(a)neustar.biz <mailto:becky.burr@neustar.biz> >, Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Cc: "wp2(a)icann.org <mailto:wp2@icann.org> " <wp2(a)icann.org <mailto:wp2@icann.org> >, "wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> " <wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> > Subject: Re: [WP2] [independent review] Independent Review Becky (and team) I have been following this area and your excellent considerations for some time. (And have been commenting outside on the need to a standing, high level Independent Review mechanism - https://ourinternet.org/#publications/legal-mechanisms-for-governing-the-tr… <https://urldefense.proofpoint.com/v2/url?u=https-3A__ourinternet.org_-23pub…> ) One question you pose on the chart is the required skill set. I think that this should be more than just senior legal. Having watched the community for 18 years, it strikes me that an ICANN reviewer has to be able to understand and address five arenas/communities: technical, civil society, business, diplomatic and regulatory. While lawyers and public policy experts can achieve this, and be recognized by others as having key skills, I have found that there is great benefit with mixing senior technical people who not only bring a technical educational value, but also, frankly, are more likely to gain the esteem of the hard-core technical community (who for some reason do not have high regard for lawyers, etc.... ) It has certainly been of benefit at the Board. Best Paul -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 <tel:%2B1%20310%20279%202366> Aust M: +61 416 238 501 <tel:%2B61%20416%20238%20501> www.argopacific.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.argopacific.com&d=A…> On 4/8/15 6:54 PM, Perez Galindo, Rafael wrote: Thank you Becky for your prompt answer. Becky that is exactly what I meant, I used the word “potentially” but I guess that “prospectively” is even better for native speakers. Your explanation of the issue is excellent and of course the prospectively harmed part has to show and demonstrate the merits of its case, with an aim to narrow down who could have a standing. Regards Rafael De: Burr, Becky [mailto:Becky.Burr@neustar.biz] Enviado el: martes, 07 de abril de 2015 20:02 Para: Paul Rosenzweig; Perez Galindo, Rafael CC: wp2(a)icann.org <mailto:wp2@icann.org> ; wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> Asunto: Re: [WP2] [independent review] Independent Review Apologies for not sending updated documents around after our call, will do so shortly. As to “potentially affected” parties, I think we are really talking about “prospectively affected” parties. In other words, if the Board takes an action, the party in question will be materially or significantly and adversely affected. In that case, a prospectively affected party would have standing to seek relief prior to an action or decision to the extent the prospective harm is ‘material’ or ‘significant’ and the normal standard for pre-emptive or injunctive relief is met. This would require a showing on the part of the prospectively affected party that they are likely to win an IRP on the merits and that there is no adequate remedy once an action or decision has been taken. Putting aside the merits of any particular case, I believe that this approach has been adopted in at least one ongoing IRP. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> / becky.burr(a)neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz> From: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Date: Tuesday, April 7, 2015 at 1:26 PM To: "'Perez Galindo, Rafael'" <RPEREZGA(a)minetur.es <mailto:RPEREZGA@minetur.es> >, Becky Burr <becky.burr(a)neustar.biz <mailto:becky.burr@neustar.biz> > Cc: "wp2(a)icann.org <mailto:wp2@icann.org> " <wp2(a)icann.org <mailto:wp2@icann.org> >, "wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> " <wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> > Subject: RE: [WP2] [independent review] Independent Review Dear Rafael How broadly, or narrowly, would you define “potentially affected.” After all, a decision regarding, say, a ccTLD has the potential to affect everyone in that national TLD. I agree with you that some degree of preemptive action is necessary, but we don’t want to write it so broadly that every citizen of the world has a stake … Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> Skype: paul.rosenzweig1066 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> Link to my PGP Key <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e…> From: Perez Galindo, Rafael [mailto:RPEREZGA@minetur.es] Sent: Tuesday, April 7, 2015 8:08 AM To: Burr, Becky Cc: wp2(a)icann.org <mailto:wp2@icann.org> ; wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> Subject: Re: [WP2] [independent review] Independent Review Dear Becky and all, Sorry if I am missing out on any discussions taking place at the moment, but I am not receiving emails from the WP2 regarding the final architecture for the IRP and I was just wondering if I am off track… Are there any outcomes from a meeting I understood was taking place in Washington? Apologies for any overlap or if this has already been discussed but I would like to make some points on the latest version of the IRP template arising from Istanbul: - Most importantly, we deem it essential that the standing scope encompasses not only materially affected persons or entities, but also potentially affected ones. The rationale behind this proposal is that there are instances in which the harm is only done AFTER a decision that violates the Bylaws or Articles of Incorporation is made. A typical example would be the decision to delegate a new gTLD that has a high likelihood of harming determined interests or rights or users. In this case, the potentially harmed communities should be in a position to file an IRP BEFORE the harm is done, thus avoiding the commission of the violation. Hence, sometimes it makes no sense to wait till irreversible damage is caused, and a provision envisaging this situation should be put in place, expanding the scope of legitimacy to file an IRP to situations in which it is demonstrated that a severe harm can potentially be done. - A deadline for lodging challenges should be set in the rules of procedure. In the current IRP, it is 1 month. We propose that it is fixed at a minimum of 2 months in general, and no deadline in cases of inaction of the Board. These same periods could be set as well for the Reconsideration Request process. - It should not be allowed that any member of any ICANN’s community of interest be part of the Panel, of course not as a member, and either not as supporting staff or consultant. In addition, the appointment should be made by the community, not by the Board. Looking forward to continuing the discussion Best Rafael GAC_SPAIN De:wp2-bounces@icann.org <mailto:wp2-bounces@icann.org> [mailto:wp2-bounces@icann.org] En nombre de Burr, Becky Enviado el: martes, 17 de marzo de 2015 17:16 Para: Paul Rosenzweig; 'Mathieu Weill' CC: wp2(a)icann.org <mailto:wp2@icann.org> ; wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> Asunto: Re: [WP2] [independent review] Independent Review If the panel decides, it has to have a standard for decision making – I.e., one of the two approaches described by Paul below. I’m slightly more comfortable with the first model, but I understand that many parts of the world do operate on the loser pays model. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> / becky.burr(a)neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz> From: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Date: Tuesday, March 17, 2015 at 10:12 AM To: 'Mathieu Weill' <mathieu.weill(a)afnic.fr <mailto:mathieu.weill@afnic.fr> > Cc: "wp2(a)icann.org <mailto:wp2@icann.org> " <wp2(a)icann.org <mailto:wp2@icann.org> >, "wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> " <wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> > Subject: Re: [independent review] [WP2] Independent Review Absolutely possible. But you still have to have a background rule. One that says “each party bears its own costs” except if the IRP finds the filing “vexatious or frivolous or in bad faith” is very different from one that say “loser pays for the costs” unless the IRP finds the filing “in good faith or with a substantial colorable basis” I have separately prposed to WP2 the first model, which more fits my own preferences – but the second is equally legitimate as a policy choice. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> Skype: paul.rosenzweig1066 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> Link to my PGP Key <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e…> From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Tuesday, March 17, 2015 9:54 AM To: Paul Rosenzweig Cc: Jonathan Zuck; McAuley, David; Grace Abuhamad; wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> ; wp2(a)icann.org <mailto:wp2@icann.org> Subject: Re: [independent review] [WP2] Independent Review Hi Paul, You are right to distinguish cost and price here. ICANN could support most of the cost while the price might be lower than cost. Concerning the alternatives you describe below, could there also be an option for the panel to decide upon who should carry what share of the cost, as part of its decision and based on the merits of the case ? Best, Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 17 mars 2015 à 14:32, "Paul Rosenzweig" <paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > a écrit : I am not sure I agree that cost is that big an issue. ICANN has a large surplus right now and makes a handsome “profit” from the sale of domains. It can fund the bureaucracy quite readily, especially since it will be virtual. 5 salaries for experts; one dedicated staffer to manage the process and lots of computer time. Much more difficult is permitting ready access to the review process without encouraging frivolous suits. All systems of law have that problem and we are not going to solve it here since nobody else has ever solved it before. You can either a) favor access by having no assessment of costs to losers (except in egregious cases); or b) favor dissuading frivolity with a loser pays system … We’ve studied this for years and I can’t think of any other answer. It’s a fundmentatl policy choice. Best answer I know is a modest filing fee that is waivable by the IRP for good cause shown … P Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> Skype: paul.rosenzweig1066 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> Link to my PGP Key <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e…> <image003.jpg> From: Jonathan Zuck [mailto:JZuck@actonline.org] Sent: Monday, March 16, 2015 11:29 AM To: McAuley, David; Grace Abuhamad; wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> ; wp2(a)icann.org <mailto:wp2@icann.org> Subject: Re: [WP2] Independent Review Agree. To me, cost is a more serious issue than Presidential appointment which I believe can be mitigated through term management similar to federal judges. From:wp2-bounces@icann.org <mailto:wp2-bounces@icann.org> [mailto:wp2-bounces@icann.org] On Behalf Of McAuley, David Sent: Monday, March 16, 2015 9:18 AM To: Grace Abuhamad; wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> ; wp2(a)icann.org <mailto:wp2@icann.org> Subject: Re: [WP2] Independent Review Thanks Becky for sending the link and thanks as well to David Post, David Maher, Bruce Tonkin, and others who have weighed in on this so thoughtfully. . Like some, I question the CEO selection provision for the review panel. But the good news, IMO, is that there seems to be widespread support for a review panel mechanism that takes on issues of substance as well as process – although the heavy lifting detail work lies ahead. One particular detail that we will have to keep in mind is the potential cost of participating in a review panel – the ability to air a complaint within reasonable cost. The forum suggested in the article - made up of five “outstanding legal experts” who have a commensurate salary and office - sounds like an expensive bureaucracy in the formation stage and we need to be careful here. And along with cost, we should also pay careful attention to limitations - disincentives to frivolous or inconsequential claims – a delicate balance to be struck. David McAuley From:wp2-independentreview-bounces@icann.org <mailto:wp2-independentreview-bounces@icann.org> [mailto:wp2-independentreview-bounces@icann.org] On Behalf Of Grace Abuhamad Sent: Saturday, March 14, 2015 12:28 AM To: wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> ; wp2(a)icann.org <mailto:wp2@icann.org> Subject: [independent review] FW: Independent Review Dear all, Becky's email was sent to the bounce list, so I'm resending on her behalf. --Grace ----- http://stlr.org/download/volumes/volume14/WeberGunnarson.pdf <https://urldefense.proofpoint.com/v2/url?u=http-3A__stlr.org_download_volum…> I’ve provided a link, above, to an article written by Rolf Weber and Shawn Gunnarson in 2012 entitled “A Constitutional Solution for Internet Governance.” The authors call for the following reforms for ICANN: 1. A written charter: A charter or constitution that restricts ICANN to actions that the community has already approved, distributes authority through law and requires it to be exercised through or under law; separates power appropriately; enumerates and constrains ICANN’s powers; and establishes fundamental rights for those governed by ICANN – this corresponds, I think, to the Mission Statement and Core Values [Compact/Commitment, whatever] that we are working on. 2. Establish an independent constitutional court (the authors call it a Review Panel) with narrow powers to review ICANN actions and to reverse those actions if they are inconsistent with the written charter. The authors propose that the panel consist of 5 highly regarded legal experts who: * Have no relationship with ICANN that creates a conflict of interest * Serve for a fixed term that cannot be shortened absent agreement by the community that the position is being used for personal gain * Receive a guaranteed salary that cannot be reduced during the term. With respect to selecting the members of the independent judiciary, they propose that the CEO would appoint the members subject to approval by ICANN’s “members.” This is similar to the way Supreme Court justices are selected in the US (nominated by the president and confirmed by the Senate) and I suspect in may other countries as well. Questions – * What do you think of this approach? * Would/should a “constitutional court” of this type need to be in addition to a reformed independent review process conducted by arbitrators drawn from a standing panel? * What credentials would the panelists need to have to be appointed? * Should there be some sort of process for vetting nominees? For example, the American Bar Association has a standing panel that reviews and rates judicial nominees. http://www.americanbar.org/groups/committees/federal_judiciary.html <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.americanbar.org_gro…> * Anything else? J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> / <mailto:becky.burr@neustar.biz> becky.burr(a)neustar.biz / www.neustar.biz <http://www.neustar.biz> _______________________________________________ wp2-independentreview mailing list wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> https://mm.icann.org/mailman/listinfo/wp2-independentreview <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> _______________________________________________ WP2 mailing list WP2(a)icann.org <mailto:WP2@icann.org> https://mm.icann.org/mailman/listinfo/wp2 <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> _______________________________________________ WP2 mailing list WP2(a)icann.org <mailto:WP2@icann.org> https://mm.icann.org/mailman/listinfo/wp2

2 1

Re: [independent review] [WP2] Independent Review
by Paul Twomey April 16, 2015

April 16, 2015

Becky (and team) I have been following this area and your excellent considerations for some time. (And have been commenting outside on the need to a standing, high level Independent Review mechanism - https://ourinternet.org/#publications/legal-mechanisms-for-governing-the-tr… ) One question you pose on the chart is the required skill set. I think that this should be more than just senior legal. Having watched the community for 18 years, it strikes me that an ICANN reviewer has to be able to understand and address five arenas/communities: technical, civil society, business, diplomatic and regulatory. While lawyers and public policy experts can achieve this, and be recognized by others as having key skills, I have found that there is great benefit with mixing senior technical people who not only bring a technical educational value, but also, frankly, are more likely to gain the esteem of the hard-core technical community (who for some reason do not have high regard for lawyers, etc.... ) It has certainly been of benefit at the Board. Best Paul -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com On 4/8/15 6:54 PM, Perez Galindo, Rafael wrote: > > Thank you Becky for your prompt answer. > > Becky that is exactly what I meant, I used the word “potentially” but > I guess that “prospectively” is even better for native speakers. Your > explanation of the issue is excellent and of course the prospectively > harmed part has to show and demonstrate the merits of its case, with > an aim to narrow down who could have a standing. > > Regards > > Rafael > > *De:*Burr, Becky [mailto:Becky.Burr@neustar.biz] > *Enviado el:* martes, 07 de abril de 2015 20:02 > *Para:* Paul Rosenzweig; Perez Galindo, Rafael > *CC:* wp2(a)icann.org; wp2-independentreview(a)icann.org > *Asunto:* Re: [WP2] [independent review] Independent Review > > Apologies for not sending updated documents around after our call, > will do so shortly. > > As to “potentially affected” parties, I think we are really talking > about “prospectively affected” parties. In other words, if the Board > takes an action, the party in question will be materially or > significantly and adversely affected. In that case, a prospectively > affected party would have standing to seek relief prior to an action > or decision to the extent the prospective harm is ‘material’ or > ‘significant’ and the normal standard for pre-emptive or injunctive > relief is met. This would require a showing on the part of the > prospectively affected party that they are likely to win an IRP on the > merits and that there is no adequate remedy once an action or decision > has been taken. Putting aside the merits of any particular case, I > believe that this approach has been adopted in at least one ongoing IRP. > > J. Beckwith Burr > > *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer > > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > > Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / > becky.burr(a)neustar.biz <mailto:becky.burr@neustar.biz> / > www.neustar.biz <http://www.neustar.biz> > > *From: *Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com > <mailto:paul.rosenzweig@redbranchconsulting.com>> > *Date: *Tuesday, April 7, 2015 at 1:26 PM > *To: *"'Perez Galindo, Rafael'" <RPEREZGA(a)minetur.es > <mailto:RPEREZGA@minetur.es>>, Becky Burr <becky.burr(a)neustar.biz > <mailto:becky.burr@neustar.biz>> > *Cc: *"wp2(a)icann.org <mailto:wp2@icann.org>" <wp2(a)icann.org > <mailto:wp2@icann.org>>, "wp2-independentreview(a)icann.org > <mailto:wp2-independentreview@icann.org>" > <wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org>> > *Subject: *RE: [WP2] [independent review] Independent Review > > Dear Rafael > > How broadly, or narrowly, would you define “potentially affected.” > After all, a decision regarding, say, a ccTLD has the potential to > affect everyone in that national TLD. I agree with you that some > degree of preemptive action is necessary, but we don’t want to write > it so broadly that every citizen of the world has a stake … > > Paul > > Paul Rosenzweig > > paul.rosenzweig(a)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.redbranchconsulting…> > > > <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e…> > > *From:*Perez Galindo, Rafael [mailto:RPEREZGA@minetur.es] > *Sent:* Tuesday, April 7, 2015 8:08 AM > *To:* Burr, Becky > *Cc:* wp2(a)icann.org <mailto:wp2@icann.org>; > wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> > *Subject:* Re: [WP2] [independent review] Independent Review > > Dear Becky and all, > > Sorry if I am missing out on any discussions taking place at the > moment, but I am not receiving emails from the WP2 regarding the final > architecture for the IRP and I was just wondering if I am off track… > Are there any outcomes from a meeting I understood was taking place in > Washington? > > Apologies for any overlap or if this has already been discussed but I > would like to make some points on the latest version of the IRP > template arising from Istanbul: > > - Most importantly, we deem it essential that the standing scope > encompasses not only materially affected persons or entities, but also > *_potentially affected_* ones. The rationale behind this proposal is > that there are instances in which the harm is only done AFTER a > decision that violates the Bylaws or Articles of Incorporation is > made. A typical example would be the decision to delegate a new gTLD > that has a high likelihood of harming determined interests or rights > or users. In this case, the potentially harmed communities should be > in a position to file an IRP BEFORE the harm is done, thus avoiding > the commission of the violation. Hence, sometimes it makes no sense to > wait till irreversible damage is caused, and a provision envisaging > this situation should be put in place, expanding the scope of > legitimacy to file an IRP to situations in which it is demonstrated > that a severe harm can potentially be done. > > - A deadline for lodging challenges should be set in the rules of > procedure. In the current IRP, it is 1 month. We propose that it is > fixed at a minimum of *_2 months_* in general, and no deadline in > cases of inaction of the Board. These same periods could be set as > well for the Reconsideration Request process. > > - It should not be allowed that any member of any ICANN’s community of > interest be part of the Panel, of course not as a member, and either > not as supporting staff or consultant. In addition, the appointment > should be made by the community, not by the Board. > > Looking forward to continuing the discussion > > Best > > Rafael > > GAC_SPAIN > > *De:*wp2-bounces@icann.org <mailto:wp2-bounces@icann.org> > [mailto:wp2-bounces@icann.org] *En nombre de *Burr, Becky > *Enviado el:* martes, 17 de marzo de 2015 17:16 > *Para:* Paul Rosenzweig; 'Mathieu Weill' > *CC:* wp2(a)icann.org <mailto:wp2@icann.org>; > wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> > *Asunto:* Re: [WP2] [independent review] Independent Review > > If the panel decides, it has to have a standard for decision making – > I.e., one of the two approaches described by Paul below. I’m slightly > more comfortable with the first model, but I understand that many > parts of the world do operate on the loser pays model. > > J. Beckwith Burr > > *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer > > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > > Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / > becky.burr(a)neustar.biz <mailto:becky.burr@neustar.biz> / > www.neustar.biz <http://www.neustar.biz> > > *From: *Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com > <mailto:paul.rosenzweig@redbranchconsulting.com>> > *Date: *Tuesday, March 17, 2015 at 10:12 AM > *To: *'Mathieu Weill' <mathieu.weill(a)afnic.fr > <mailto:mathieu.weill@afnic.fr>> > *Cc: *"wp2(a)icann.org <mailto:wp2@icann.org>" <wp2(a)icann.org > <mailto:wp2@icann.org>>, "wp2-independentreview(a)icann.org > <mailto:wp2-independentreview@icann.org>" > <wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org>> > *Subject: *Re: [independent review] [WP2] Independent Review > > Absolutely possible. But you still have to have a background rule. > One that says “each party bears its own costs” except if the IRP finds > the filing “vexatious or frivolous or in bad faith” is very different > from one that say “loser pays for the costs” unless the IRP finds the > filing “in good faith or with a substantial colorable basis” > > I have separately prposed to WP2 the first model, which more fits my > own preferences – but the second is equally legitimate as a policy > choice. > > Paul > > Paul Rosenzweig > > paul.rosenzweig(a)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.redbranchconsulting…> > > > <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e…> > > *From:*Mathieu Weill [mailto:mathieu.weill@afnic.fr] > *Sent:* Tuesday, March 17, 2015 9:54 AM > *To:* Paul Rosenzweig > *Cc:* Jonathan Zuck; McAuley, David; Grace Abuhamad; > wp2-independentreview(a)icann.org > <mailto:wp2-independentreview@icann.org>; wp2(a)icann.org > <mailto:wp2@icann.org> > *Subject:* Re: [independent review] [WP2] Independent Review > > Hi Paul, > > You are right to distinguish cost and price here. ICANN could support > most of the cost while the price might be lower than cost. > > Concerning the alternatives you describe below, could there also be an > option for the panel to decide upon who should carry what share of the > cost, as part of its decision and based on the merits of the case ? > > Best, > > Mathieu Weill > > --------------- > > Depuis mon mobile, désolé pour le style > > > Le 17 mars 2015 à 14:32, "Paul Rosenzweig" > <paul.rosenzweig(a)redbranchconsulting.com > <mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : > > I am not sure I agree that cost is that big an issue. ICANN has a > large surplus right now and makes a handsome “profit” from the > sale of domains. It can fund the bureaucracy quite readily, > especially since it will be virtual. 5 salaries for experts; one > dedicated staffer to manage the process and lots of computer time. > > Much more difficult is permitting ready access to the review > process without encouraging frivolous suits. All systems of law > have that problem and we are not going to solve it here since > nobody else has ever solved it before. You can either a) favor > access by having no assessment of costs to losers (except in > egregious cases); or b) favor dissuading frivolity with a loser > pays system … We’ve studied this for years and I can’t think of > any other answer. It’s a fundmentatl policy choice. Best answer > I know is a modest filing fee that is waivable by the IRP for > good cause shown … > > P > > Paul Rosenzweig > > paul.rosenzweig(a)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.redbranchconsulting…> > > <image003.jpg> > <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e…> > > > *From:*Jonathan Zuck [mailto:JZuck@actonline.org] > *Sent:* Monday, March 16, 2015 11:29 AM > *To:* McAuley, David; Grace Abuhamad; > wp2-independentreview(a)icann.org > <mailto:wp2-independentreview@icann.org>; wp2(a)icann.org > <mailto:wp2@icann.org> > *Subject:* Re: [WP2] Independent Review > > Agree. To me, cost is a more serious issue than Presidential > appointment which I believe can be mitigated through term > management similar to federal judges. > > *From:*wp2-bounces@icann.org <mailto:wp2-bounces@icann.org> > [mailto:wp2-bounces@icann.org] *On Behalf Of *McAuley, David > *Sent:* Monday, March 16, 2015 9:18 AM > *To:* Grace Abuhamad; wp2-independentreview(a)icann.org > <mailto:wp2-independentreview@icann.org>; wp2(a)icann.org > <mailto:wp2@icann.org> > *Subject:* Re: [WP2] Independent Review > > Thanks Becky for sending the link and thanks as well to David > Post, David Maher, Bruce Tonkin, and others who have weighed in on > this so thoughtfully. . > > Like some, I question the CEO selection provision for the review > panel. But the good news, IMO, is that there seems to be > widespread support for a review panel mechanism that takes on > issues of substance as well as process – although the heavy > lifting detail work lies ahead. > > One particular detail that we will have to keep in mind is the > potential cost of participating in a review panel – the ability to > air a complaint within reasonable cost. The forum suggested in the > article - made up of five “outstanding legal experts” who have a > commensurate salary and office - sounds like an expensive > bureaucracy in the formation stage and we need to be careful here. > > And along with cost, we should also pay careful attention to > limitations - disincentives to frivolous or inconsequential claims > – a delicate balance to be struck. > > David McAuley > > *From:*wp2-independentreview-bounces@icann.org > <mailto:wp2-independentreview-bounces@icann.org> > [mailto:wp2-independentreview-bounces@icann.org] *On Behalf Of > *Grace Abuhamad > *Sent:* Saturday, March 14, 2015 12:28 AM > *To:* wp2-independentreview(a)icann.org > <mailto:wp2-independentreview@icann.org>; wp2(a)icann.org > <mailto:wp2@icann.org> > *Subject:* [independent review] FW: Independent Review > > /Dear all, / > > /Becky's email was sent to the bounce list, so I'm resending on > her behalf. / > > /--Grace/ > > ----- > > http://stlr.org/download/volumes/volume14/WeberGunnarson.pdf > <https://urldefense.proofpoint.com/v2/url?u=http-3A__stlr.org_download_volum…> > > I’ve provided a link, above, to an article written by Rolf Weber > and Shawn Gunnarson in 2012 entitled “A Constitutional Solution > for Internet Governance.” The authors call for the following > reforms for ICANN: > > 1. *A written charter:* A charter or constitution that restricts > ICANN to actions that the community has already approved, > distributes authority through law and requires it to be > exercised through or under law; separates power appropriately; > enumerates and constrains ICANN’s powers; and establishes > fundamental rights for those governed by ICANN – this > corresponds, I think, to the Mission Statement and Core Values > [Compact/Commitment, whatever] that we are working on. > 2. Establish an independent constitutional court (the authors > call it a Review Panel) with narrow powers to review ICANN > actions and to reverse those actions if they are inconsistent > with the written charter. The authors propose that the panel > consist of 5 highly regarded legal experts who: > > * Have no relationship with ICANN that creates a conflict > of interest > * Serve for a fixed term that cannot be shortened absent > agreement by the community that the position is being used > for personal gain > * Receive a guaranteed salary that cannot be reduced during > the term. > > With respect to selecting the members of the independent > judiciary, they propose that the CEO would appoint the members > subject to approval by ICANN’s “members.” This is similar to the > way Supreme Court justices are selected in the US (nominated by > the president and confirmed by the Senate) and I suspect in may > other countries as well. > > Questions – > > * What do you think of this approach? > * Would/should a “constitutional court” of this type need to be > in addition to a reformed independent review process conducted > by arbitrators drawn from a standing panel? > * What credentials would the panelists need to have to be > appointed? > * Should there be some sort of process for vetting nominees? > For example, the American Bar Association has a standing > panel that reviews and rates judicial nominees. > http://www.americanbar.org/groups/committees/federal_judiciary.html > <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.americanbar.org_gro…> > > * Anything else? > > J. Beckwith Burr > > *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer > > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > > Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / > becky.burr(a)neustar.biz <mailto:becky.burr@neustar.biz> / > www.neustar.biz <http://www.neustar.biz> > > _______________________________________________ > wp2-independentreview mailing list > wp2-independentreview(a)icann.org > <mailto:wp2-independentreview@icann.org> > https://mm.icann.org/mailman/listinfo/wp2-independentreview > <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> > > > > > _______________________________________________ > WP2 mailing list > WP2(a)icann.org > https://mm.icann.org/mailman/listinfo/wp2

3 2

Re: [independent review] [WP2] Independent Review
by Paul Rosenzweig April 7, 2015

April 7, 2015

Dear Rafael How broadly, or narrowly, would you define potentially affected. After all, a decision regarding, say, a ccTLD has the potential to affect everyone in that national TLD. I agree with you that some degree of preemptive action is necessary, but we dont want to write it so broadly that every citizen of the world has a stake Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig(a)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 <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_me dium=email&utm_campaign=signature-us2015> From: Perez Galindo, Rafael [mailto:RPEREZGA@minetur.es] Sent: Tuesday, April 7, 2015 8:08 AM To: Burr, Becky Cc: wp2(a)icann.org; wp2-independentreview(a)icann.org Subject: Re: [WP2] [independent review] Independent Review Dear Becky and all, Sorry if I am missing out on any discussions taking place at the moment, but I am not receiving emails from the WP2 regarding the final architecture for the IRP and I was just wondering if I am off track Are there any outcomes from a meeting I understood was taking place in Washington? Apologies for any overlap or if this has already been discussed but I would like to make some points on the latest version of the IRP template arising from Istanbul: - Most importantly, we deem it essential that the standing scope encompasses not only materially affected persons or entities, but also potentially affected ones. The rationale behind this proposal is that there are instances in which the harm is only done AFTER a decision that violates the Bylaws or Articles of Incorporation is made. A typical example would be the decision to delegate a new gTLD that has a high likelihood of harming determined interests or rights or users. In this case, the potentially harmed communities should be in a position to file an IRP BEFORE the harm is done, thus avoiding the commission of the violation. Hence, sometimes it makes no sense to wait till irreversible damage is caused, and a provision envisaging this situation should be put in place, expanding the scope of legitimacy to file an IRP to situations in which it is demonstrated that a severe harm can potentially be done. - A deadline for lodging challenges should be set in the rules of procedure. In the current IRP, it is 1 month. We propose that it is fixed at a minimum of 2 months in general, and no deadline in cases of inaction of the Board. These same periods could be set as well for the Reconsideration Request process. - It should not be allowed that any member of any ICANNs community of interest be part of the Panel, of course not as a member, and either not as supporting staff or consultant. In addition, the appointment should be made by the community, not by the Board. Looking forward to continuing the discussion Best Rafael GAC_SPAIN De: wp2-bounces(a)icann.org <mailto:wp2-bounces@icann.org> [mailto:wp2-bounces@icann.org] En nombre de Burr, Becky Enviado el: martes, 17 de marzo de 2015 17:16 Para: Paul Rosenzweig; 'Mathieu Weill' CC: wp2(a)icann.org <mailto:wp2@icann.org> ; wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> Asunto: Re: [WP2] [independent review] Independent Review If the panel decides, it has to have a standard for decision making I.e., one of the two approaches described by Paul below. Im slightly more comfortable with the first model, but I understand that many parts of the world do operate on the loser pays model. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr(a)neustar.biz <mailto:becky.burr@neustar.biz> / www.neustar.biz <http://www.neustar.biz> From: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Date: Tuesday, March 17, 2015 at 10:12 AM To: 'Mathieu Weill' <mathieu.weill(a)afnic.fr <mailto:mathieu.weill@afnic.fr> > Cc: "wp2(a)icann.org <mailto:wp2@icann.org> " <wp2(a)icann.org <mailto:wp2@icann.org> >, "wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> " <wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> > Subject: Re: [independent review] [WP2] Independent Review Absolutely possible. But you still have to have a background rule. One that says each party bears its own costs except if the IRP finds the filing vexatious or frivolous or in bad faith is very different from one that say loser pays for the costs unless the IRP finds the filing in good faith or with a substantial colorable basis I have separately prposed to WP2 the first model, which more fits my own preferences but the second is equally legitimate as a policy choice. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting .com_index.php-3Foption-3Dcom-5Fcontent-26view-3Darticle-26id-3D19-26Itemid- 3D9&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8W DDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSmuXs&s=Y0lRU5B_Dj1HkbEy70y3 gTVmI7B1IcP1OZie1fdc7TQ&e=> Link to my PGP Key <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e vents_us15_register-3Futm-5Fsource-3Dinhouse-26utm-5Fmedium-3Demail-26utm-5F campaign-3Dsignature-2Dus2015&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm 6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSm uXs&s=jiYeLAWOOpHXjasPICgYzUmWglK13Db-tlGBpMnW3B4&e=> From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Tuesday, March 17, 2015 9:54 AM To: Paul Rosenzweig Cc: Jonathan Zuck; McAuley, David; Grace Abuhamad; wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> ; wp2(a)icann.org <mailto:wp2@icann.org> Subject: Re: [independent review] [WP2] Independent Review Hi Paul, You are right to distinguish cost and price here. ICANN could support most of the cost while the price might be lower than cost. Concerning the alternatives you describe below, could there also be an option for the panel to decide upon who should carry what share of the cost, as part of its decision and based on the merits of the case ? Best, Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 17 mars 2015 à 14:32, "Paul Rosenzweig" <paul.rosenzweig(a)redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > a écrit : I am not sure I agree that cost is that big an issue. ICANN has a large surplus right now and makes a handsome profit from the sale of domains. It can fund the bureaucracy quite readily, especially since it will be virtual. 5 salaries for experts; one dedicated staffer to manage the process and lots of computer time. Much more difficult is permitting ready access to the review process without encouraging frivolous suits. All systems of law have that problem and we are not going to solve it here since nobody else has ever solved it before. You can either a) favor access by having no assessment of costs to losers (except in egregious cases); or b) favor dissuading frivolity with a loser pays system Weve studied this for years and I cant think of any other answer. Its a fundmentatl policy choice. Best answer I know is a modest filing fee that is waivable by the IRP for good cause shown P Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting .com_index.php-3Foption-3Dcom-5Fcontent-26view-3Darticle-26id-3D19-26Itemid- 3D9&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8W DDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSmuXs&s=Y0lRU5B_Dj1HkbEy70y3 gTVmI7B1IcP1OZie1fdc7TQ&e=> Link to my PGP Key <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e vents_us15_register-3Futm-5Fsource-3Dinhouse-26utm-5Fmedium-3Demail-26utm-5F campaign-3Dsignature-2Dus2015&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm 6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWSm uXs&s=jiYeLAWOOpHXjasPICgYzUmWglK13Db-tlGBpMnW3B4&e=> <image003.jpg> From: Jonathan Zuck [mailto:JZuck@actonline.org] Sent: Monday, March 16, 2015 11:29 AM To: McAuley, David; Grace Abuhamad; wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> ; wp2(a)icann.org <mailto:wp2@icann.org> Subject: Re: [WP2] Independent Review Agree. To me, cost is a more serious issue than Presidential appointment which I believe can be mitigated through term management similar to federal judges. From:wp2-bounces@icann.org <mailto:wp2-bounces@icann.org> [mailto:wp2-bounces@icann.org] On Behalf Of McAuley, David Sent: Monday, March 16, 2015 9:18 AM To: Grace Abuhamad; wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> ; wp2(a)icann.org <mailto:wp2@icann.org> Subject: Re: [WP2] Independent Review Thanks Becky for sending the link and thanks as well to David Post, David Maher, Bruce Tonkin, and others who have weighed in on this so thoughtfully. . Like some, I question the CEO selection provision for the review panel. But the good news, IMO, is that there seems to be widespread support for a review panel mechanism that takes on issues of substance as well as process although the heavy lifting detail work lies ahead. One particular detail that we will have to keep in mind is the potential cost of participating in a review panel the ability to air a complaint within reasonable cost. The forum suggested in the article - made up of five outstanding legal experts who have a commensurate salary and office - sounds like an expensive bureaucracy in the formation stage and we need to be careful here. And along with cost, we should also pay careful attention to limitations - disincentives to frivolous or inconsequential claims a delicate balance to be struck. David McAuley From:wp2-independentreview-bounces@icann.org <mailto:wp2-independentreview-bounces@icann.org> [mailto:wp2-independentreview-bounces@icann.org] On Behalf Of Grace Abuhamad Sent: Saturday, March 14, 2015 12:28 AM To: wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> ; wp2(a)icann.org <mailto:wp2@icann.org> Subject: [independent review] FW: Independent Review Dear all, Becky's email was sent to the bounce list, so I'm resending on her behalf. --Grace ----- http://stlr.org/download/volumes/volume14/WeberGunnarson.pdf <https://urldefense.proofpoint.com/v2/url?u=http-3A__stlr.org_download_volum es_volume14_WeberGunnarson.pdf&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifz m6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxWS muXs&s=13_e2O5o3-2boXocOkHmJo-yvHNpJ_50IpzSCxzrrBY&e=> Ive provided a link, above, to an article written by Rolf Weber and Shawn Gunnarson in 2012 entitled A Constitutional Solution for Internet Governance. The authors call for the following reforms for ICANN: 1. A written charter: A charter or constitution that restricts ICANN to actions that the community has already approved, distributes authority through law and requires it to be exercised through or under law; separates power appropriately; enumerates and constrains ICANNs powers; and establishes fundamental rights for those governed by ICANN this corresponds, I think, to the Mission Statement and Core Values [Compact/Commitment, whatever] that we are working on. 2. Establish an independent constitutional court (the authors call it a Review Panel) with narrow powers to review ICANN actions and to reverse those actions if they are inconsistent with the written charter. The authors propose that the panel consist of 5 highly regarded legal experts who: * Have no relationship with ICANN that creates a conflict of interest * Serve for a fixed term that cannot be shortened absent agreement by the community that the position is being used for personal gain * Receive a guaranteed salary that cannot be reduced during the term. With respect to selecting the members of the independent judiciary, they propose that the CEO would appoint the members subject to approval by ICANNs members. This is similar to the way Supreme Court justices are selected in the US (nominated by the president and confirmed by the Senate) and I suspect in may other countries as well. Questions * What do you think of this approach? * Would/should a constitutional court of this type need to be in addition to a reformed independent review process conducted by arbitrators drawn from a standing panel? * What credentials would the panelists need to have to be appointed? * Should there be some sort of process for vetting nominees? For example, the American Bar Association has a standing panel that reviews and rates judicial nominees. http://www.americanbar.org/groups/committees/federal_judiciary.html <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.americanbar.org_gro ups_committees_federal-5Fjudiciary.html&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r= 62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP _ZUGVvxWSmuXs&s=PLHM4DUUz01hhbbTj2q012j82RfbZOHtL_LrnowuDwo&e=> * Anything else? J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / <mailto:becky.burr@neustar.biz> becky.burr(a)neustar.biz / www.neustar.biz <http://www.neustar.biz> _______________________________________________ wp2-independentreview mailing list wp2-independentreview(a)icann.org <mailto:wp2-independentreview@icann.org> https://mm.icann.org/mailman/listinfo/wp2-independentreview <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_wp2-2Dindependentreview&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOif zm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=flkhmAiPA0PCsBEfgKDjIKYhh8I6hP_ZUGVvxW SmuXs&s=F2C20CP8iszwWrcYnKPDXDwE6pd71KBXhNud57lySD0&e=>

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Discussion on IRP and Mission/Core Values issues post Istanbul
by Burr, Becky March 27, 2015

March 27, 2015

When: Monday, March 30, 2015 12:00 PM-1:00 PM. (UTC-05:00) Eastern Time (US & Canada) Where: 1775 PA Ave 4th Floor and remote details to be provided *~*~*~*~*~*~*~*~*~* Confirming meeting/call for Independent Review discussion on Monday. DC area folks invited to participate in person over lunch.

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Discussion on IRP issues post Istanbul
by Burr, Becky March 27, 2015

March 27, 2015

When: Monday, March 30, 2015 12:00 PM-1:00 PM. (UTC-05:00) Eastern Time (US & Canada) Where: 1775 PA Ave 4th Floor and remote details to be provided *~*~*~*~*~*~*~*~*~* Confirming meeting/call for Independent Review discussion on Monday. DC area folks invited to participate in person over lunch.

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Re: [independent review] Thoughts on Independent Review Panel
by Jonathan Zuck March 25, 2015

March 25, 2015

Sounds good Jonathan Zuck President ACT: The App Association Www.ACTonline.org From: Burr, Becky<mailto:Becky.Burr@neustar.biz> Sent: ‎Tuesday‎, ‎March‎ ‎24‎, ‎2015 ‎8‎:‎42‎ ‎AM To: Paul Rosenzweig<mailto:paul.rosenzweig@redbranchconsulting.com>, wp2-independentreview(a)icann.org<mailto:wp2-independentreview@icann.org> thanks Paul, good input. I’d like to have a substantive group discussion early next week. Folks in DC could meet in person, others via adobe/phone? Will circulate possible times. 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(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Paul Rosenzweig <paul.rosenzweig(a)redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Tuesday, March 24, 2015 at 11:00 AM To: "wp2-independentreview(a)icann.org<mailto:wp2-independentreview@icann.org>" <wp2-independentreview(a)icann.org<mailto:wp2-independentreview@icann.org>> Subject: [independent review] Thoughts on Independent Review Panel Colleagues In a follow up to the excellent discussion yesterday, I want to offer a few thoughts on next steps: 1) Given past experience, I think that something more than a Bylaw amendment is necessary before the transition. At a minimum, the IRP should be budgeted and an Administrative Director identified and authorized to stand up the IRP. My preference (which may be too ambitious) would be for the “Chair” of the IRP to also be selected and confirmed as a step toward creating an effective and functioning body. 2) I am somewhat concerned that the nature of our discussion yesterday was happening at two levels – a very high definitional level about chartering the IRP and a more finely detailed level involving discussion of the procedural rules we think the IRP must adopt. My concern is two-fold: 1) the detail of the procedures are not the sort of thing I am used to seeing in Bylaws; and 2) I suspect that the level of detail for such procedural rules will be too much for consensus based consideration within the CCWG. 3) [A related concern with the procedural rules – are they “golden” procedural rules, or can the IRP modify them as it sees fit?]. 4) Given this, I suspect that the right way to proceed is to put the high level chartering definition directly in the Bylaws with a reference to “Appendix A – IRP Procedures.” How those Procedures are adopted is an open question – by the CCWG prior to the transition? By WP2 as a “recommendation” to the new IRP? By either as a “golden” appendix? Will revision have to go through the new “Community Council?” a. To be clear, I fully agree we need to set procedural parameters – I’m just not sure how to achieve that within the context of what we are doing now ….. 5) Finally, kudos to Becky. Great presentation! Cheers Paul Paul Rosenzweig Red Branch Consulting, PLLC 509 C St. NE Washington, DC 20002 paul.rosenzweig(a)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 www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> www.paulrosenzweigesq.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.paulrosenzweigesq.c…> Link to my PGP Key<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting…> [cid:image002.jpg@01D065EF.68DA23E0]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_e…>

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conference call/meeting Monday 3/30
by Burr, Becky March 24, 2015

March 24, 2015

Based on input so far, I’d like to propose a call for Monday, 30 March, at 16:00 UTC (Noon Eastern). For those in DC, I’ll buy lunch for those who can be in person at 1775 Pennsylvania Avenue NW. Will circulate dial in and webex for remote participants (Adobe room coming soon to a work party near you). 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(a)neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz

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