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Reconsideration Request template - cleaned up version
by Robin Gross April 18, 2015

April 18, 2015

I cleaned up the text in the template for the Reconsideration Request reforms and added a little more explanatory text in the attached version for our upcoming discussions. Staff, would you please post this template to the wiki? Thank you! Best, Robin

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Reconsideration Request Process - updated template
by Robin Gross April 10, 2015

April 10, 2015

All, I've updated the template for the proposed improvements to the reconsideration request in response to the various comments that come in during the last week. Please have a look and comment further. Thank you, Robin

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Reconsideration Reforms Template draft
by Robin Gross March 31, 2015

March 31, 2015

Below is an updated template for the Reconsideration Request Reforms taking into account the comments and suggestions received to date. There hasn't been a lot of discussion of this issue in the last couple of weeks, but it is extremely important we get key reforms into place as the RR process is one of ICANN's stated accountability mechanisms and was the source of much complaint leading up to this working group's formation. So please send other comments and suggestions regarding needed reforms to the RR process at your earliest opportunity. Thank you, Robin ------------ Reminder: ICANN Bylaws, Art IV, Section 2 is on the Reconsideration Review Process https://www.icann.org/resources/pages/governance/bylaws-en Template of Reconsideration Request Reforms 1. Standing Amend "who" has proper standing to file a Reconsideration Request to widen its scope to include any party impacted by the ICANN decision / inaction. 2. Standard of Review Amend the standard of reviewing a Reconsideration Request to include a re-examination of the underlying merits of arguments and decisions. Also broaden the types of decisions which can re-examined. Also, amend when BGC may "summarily" dismiss a request (for example: dismissal based on Requester not participating in a public comment period on the issue). Make it clear that a frivolous claim amounts to a cost that would be extraordinary in nature (para 9). And in paragraph 9 (ii) delete the word “querulous” and in paragraph 9 (iii) add “actual” to “notice.” 3. Composition Need less reliance on the legal dept to guide the BGC on its recommendations and more board member engagement in decisions. Amend rules so BGC does not have the option of making final decisions (RE: staff action/inaction and 3rd party panels) without fuller board briefing and discussion of the issues. 4. Selection N/A 5. Decision-making Transparency improvements are needed regarding the information that make up the decision-making process. Reconsideration Request decisions currently have "precedential value" - so a party affected by a previous decision should be able to challenge the previous decision to which his case is bound under precedent. However, if a precedent is over-ruled it does not re-open old cases. 6. Accessibility Extend the time deadline for filing a Reconsideration Request to 60 days [from when Requester learns of decision]. Currently, the deadline for filing is (generally) 15 days from when decision/action is taken and posted or when one can reasonably conclude action/decision will not happen. 7. Implementation Requestors may need a follow-up process regarding implementation of decision reconsidered. 8. Due process Provide all briefing materials supplied to board to Requester so that they may know the arguments against them and have an opportunity to respond (subject to legitimate and documented confidentiality requirements). Final decisions should be issued sooner. Requests for "urgent" reconsideration should be broadened and less subjective in criteria for acceptance of "urgency". Requests considered "Urgent" should take into account legitimate business needs for relative certainty of rules in a timely fashion.

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Re: [reconsideration] [CCWG-ACCT] Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress
by McAuley, David March 19, 2015

March 19, 2015

Hello again Suzanne, There is a point I want to clarify about my redactions posting last evening. I should have used the word "arguments" instead of "decisions." I meant to convey my concern with some arguments - the one I am most familiar with is the DotConnectAfrica IRP case that is still ongoing. There are redactions in ICANN's Dec. 4th response to DCA's submission on the merits of the case (after a number of procedural rulings and unexpected delays - the case deals with a claim that DCA's application for the .africa TLD has been mishandled). There are times, IMO, when the arguments are more important to read than the decisions. And I suspect that argument redactions work their way into eventual decisions in that panels probably observe the withholding of information by not making specific reference to it in the decisions. There are probably good reasons for the redactions. But those reasons may diminish over time such that disclosure can come later. It may make sense to footnote redactions and explain in general terms why the information was held as non-public. For instance, "Paragraph 34 of ICANN's response on the merits of DCA's argument was redacted because [e.g.] it contains third party confidential, proprietary information." Or "it contains an individual's private data" or some such thing - or include a redaction ledger at the end of the brief with general explanations. If there are explanations in the documents I have missed them somehow. David McAuley From: Suzanne Radell [mailto:SRadell@ntia.doc.gov] Sent: Tuesday, March 17, 2015 6:03 PM To: McAuley, David; 'Robin Gross'; wp2-reconsideration(a)icann.org Cc: wp2(a)icann.org; Accountability Cross Community Subject: RE: [CCWG-ACCT] Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress Thanks, David. My one first hand experience with ICANN redaction policy was the ICANN Board decision taken in June 2011 with regard to the GAC's advice for the protection of the Red Cross/Red Crescent and the International Olympic Committee names/logos. ICANN had consulted with outside legal experts and when the GAC asked for a copy of the resulting report, the text we were given had no useful material because it was so heavily redacted. It was eventually released (quite some time later) with no redactions, but it was a frustrating experience to say the least; the logic behind the redactions was never made clear. Cheers, Suz Suzanne Murray Radell Senior Policy Advisor NTIA/Office of International Affairs PH: 202-482-3167 FX: 202-482-1865 ________________________________ From: McAuley, David [dmcauley(a)verisign.com] Sent: Tuesday, March 17, 2015 5:17 PM To: Suzanne Radell; 'Robin Gross'; wp2-reconsideration(a)icann.org<mailto:wp2-reconsideration@icann.org> Cc: wp2(a)icann.org<mailto:wp2@icann.org>; Accountability Cross Community Subject: RE: [CCWG-ACCT] Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress That's a good point Suzanne. And in the area of transparency, we should also look at the IRP redaction policy. Some of the published decisions are heavily redacted - at least that is how some appear. Obviously there are legitimate areas for redaction and they should be retained but it merits a look to see if more information cannot be made public and, if not, whether there are measures in place to test the redactions periodically to see if the need for confidentiality might have passed. David McAuley From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Suzanne Radell Sent: Tuesday, March 17, 2015 4:57 PM To: 'Robin Gross'; wp2-reconsideration(a)icann.org<mailto:wp2-reconsideration@icann.org> Cc: wp2(a)icann.org<mailto:wp2@icann.org>; Accountability Cross Community Subject: Re: [CCWG-ACCT] Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress Hi all, and many thanks to Robin and others for their contributions. I am not sure my proposal will be as constructive as others, but I'm willing to give it a try. It would be helpful if work on this issue could also address the transparency aspects of the IRP, which would optimally provide for more access to updates/information (or at least that information which is not considered confidential) on a regular or routine basis. At present, the site contains the basic data related to the filing of an IRP and will provide the results of an IRP that has been completed. For all of the pending requests, there is no way for anyone other than the parties directly involved in an IRP to learn the status or the results of the CEP and/or the IRP itself. As an example, and I will defer to Alice Munyua on this to confirm, if the question had not been put to the ICANN Board by the African Union Commission during the GAC-Board meeting in Singapore seeking a status report of the .africa IRP, we would not have learned that the panel's work was in abeyance due to the death of one of the panelists. And all we know at the present time is that the work has been halted; no sense of when it might re-start, much less conclude. In looking at the list of issues embedded further down in this email chain, I initially thought that "accessibility" might be the right heading, but have since retreated from that since it applies more to who has access to an IRP and under what conditions. Would a more general "transparency" heading work? I trust you will let me know if you think this is a non-starter, so let me thank you (!) in advance for your feedback. Cheers, Suz Suzanne Murray Radell Senior Policy Advisor, NTIA/OIA sradell(a)ntia.doc.gov<mailto:sradell@ntia.doc.gov> 202-482-3167 From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Robin Gross Sent: Tuesday, March 17, 2015 12:58 PM To: wp2-reconsideration(a)icann.org<mailto:wp2-reconsideration@icann.org> Cc: wp2(a)icann.org<mailto:wp2@icann.org>; Accountability Cross Community Subject: Re: [CCWG-ACCT] Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress Below are a few further elaborations on the Reconsideration Request reforms that are needed. Please provide additional feedback and suggestions on how to reform this process. Thanks, Robin ICANN Bylaws, Art IV, Section 2 is on the Reconsideration Review Process https://www.icann.org/resources/pages/governance/bylaws-en Reconsideration Request reforms to address implementation and operational issues including: 1. Standing Amend "who" has proper standing to file a Reconsideration Request to widen its scope to include any party impacted by the ICANN decision / inaction. The current two step test of demonstrating both i) material harm, and ii) adversely impact is too burdensome and restrictive. Current rule: "Every requestor must be able to demonstrate that it has been materially harmed and adversely impacted by the action or inaction giving rise to the request." - Bylaws IV Section 2, Para 8 2. Standard of Review Amend the standard of reviewing a Reconsideration Request to include a re-examination of the underlying merits of arguments and decisions. Also broaden the types of decisions which can re-examined. Also, amend when BGC may "summarily" dismiss a request based on Requester not participating in a public comment period on the issue. (Para 9) 3. Composition Currently, the Board Governance Committee works with the legal dept to formulate an initial recommendation* to the full board. While I understand the need for some legal advice to the BGC, it may be the case that less reliance on the legal dept to guide the BGC on its recommendation would be more fruitful and encourage the board members themselves to engage deeper in the process, obtain a greater understanding of the underlying issue, and take more responsibility for making these decisions. (*Except: Issues regarding staff action/inactions and 3rd party panels in new gtld program, in which the BGC has option of making final decision itself, rather than full board. This should be amended so entire board learns what staff is up to, not just BGC). 4. Selection N/A 5. Decision-making Transparency improvements are needed regarding the information that make up the decision-making process. Reconsideration Request decisions currently have "precedential value" - so a party affected by a previous decision should be able to challenge the previous decision to which his case is bound under precedent. 6. Accessibility Extend the time deadline for filing a Reconsideration Request to 30 days. Currently, the deadline for filing is (generally) 15 days from when decision/action is taken and posted or when one can reasonably conclude action/decision will not happen. 7. Implementation Requestors may need a follow-up process regarding implementation of decision reconsidered 8. Due process Provide opportunity for oral argument with rebuttal opportunity. Currently it is at the Board's option if it wishes to permit an oral discussion. Provide all briefing materials supplied to board to Requester so that they may know the arguments against them and have an opportunity to respond. Final decisions should be issued sooner. Requests for "urgent" reconsideration should be broadened and less subjective in criteria for acceptance of "urgency". What else???? On Mar 8, 2015, at 3:19 PM, Robin Gross wrote: Hello, This email is to kick-off the discussion for the Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress Mechanisms. Volunteers so far: Robin Gross, Ed Morris, Chris LaHatte, David McAuley, Carlos Gutierrez (please send a note to <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>> to volunteer for this sub-group). This WP2 sub-group should will look specifically at issues to be addressed with respect to improving ICANN's accountability mechanisms involving a reconsideration process of a board or management decision. Specific Task: To review the current rules under which reconsideration occurs, and to propose appropriate changes to those rules to create adequate accountability. Existing "Reconsideration Request" accountability mechanism: See ICANN Bylaws Art. IV, Sec. 2) Board reconsideration of: - One or more staff actions or inactions that contradict established ICANN policy(ies); or - 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 - 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. ----------------------------------------------------------------------- Suggestions for Change/Enhancement ICANN's Reconsideration Processes: 1. Mechanism for review of Board or management action in conflict with ICANN Bylaws or Articles of Incorporation. 2. Mechanism to require community (members, AC/SOs, etc.) to require Board to act on, implement, amend, accelerate implementation of, a previously approved ATRT recommendation. 3. Change bylaws for Reconsideration Process: trigger when board acts arbitrarily or capriciously; decisions subject to Independent Review. 4. Reconsideration of staff action/inaction. 5. Broadly expand grounds on which ICANN decisions and operations can be challenged; lower threshold to succeed in a challenge. 6. Reasonable time deadlines and other due process considerations. What else? ------------------ Proposal to address implementation and operational issues including: * Standing * Standard of review * Composition * Selection * Decision-making * Accessibility * Implementation * Due process Work Party 2 Reconsideration mailing list - wp2-reconsideration(a)icann.org<mailto:wp2-reconsideration@icann.org> - is now active. Public archives may be found at: http://mm.icann.org/pipermail/wp2-reconsideration/ May this sub-group please have a wiki page? Thank you. Please volunteer for this sub-group - especially if you have any experience with ICANN's reconsideration process. Thanks, Robin

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Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress
by Robin Gross March 18, 2015

March 18, 2015

Hello, This email is to kick-off the discussion for the Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress Mechanisms. Volunteers so far: Robin Gross, Ed Morris, Chris LaHatte, David McAuley, Carlos Gutierrez (please send a note to <alice.jansen(a)icann.org> to volunteer for this sub-group). This WP2 sub-group should will look specifically at issues to be addressed with respect to improving ICANN's accountability mechanisms involving a reconsideration process of a board or management decision. Specific Task: To review the current rules under which reconsideration occurs, and to propose appropriate changes to those rules to create adequate accountability. Existing "Reconsideration Request" accountability mechanism: See ICANN Bylaws Art. IV, Sec. 2) Board reconsideration of: - One or more staff actions or inactions that contradict established ICANN policy(ies); or - 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 - 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. ----------------------------------------------------------------------- Suggestions for Change/Enhancement ICANN's Reconsideration Processes: 1. Mechanism for review of Board or management action in conflict with ICANN Bylaws or Articles of Incorporation. 2. Mechanism to require community (members, AC/SOs, etc.) to require Board to act on, implement, amend, accelerate implementation of, a previously approved ATRT recommendation. 3. Change bylaws for Reconsideration Process: trigger when board acts arbitrarily or capriciously; decisions subject to Independent Review. 4. Reconsideration of staff action/inaction. 5. Broadly expand grounds on which ICANN decisions and operations can be challenged; lower threshold to succeed in a challenge. 6. Reasonable time deadlines and other due process considerations. What else? ------------------ Proposal to address implementation and operational issues including: · Standing · Standard of review · Composition · Selection · Decision-making · Accessibility * Implementation * Due process Work Party 2 Reconsideration mailing list – wp2-reconsideration(a)icann.org – is now active. Public archives may be found at: http://mm.icann.org/pipermail/wp2-reconsideration/ May this sub-group please have a wiki page? Thank you. Please volunteer for this sub-group - especially if you have any experience with ICANN's reconsideration process. Thanks, Robin

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Re: [reconsideration] [CCWG-ACCT] Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress
by McAuley, David March 17, 2015

March 17, 2015

That's a good point Suzanne. And in the area of transparency, we should also look at the IRP redaction policy. Some of the published decisions are heavily redacted - at least that is how some appear. Obviously there are legitimate areas for redaction and they should be retained but it merits a look to see if more information cannot be made public and, if not, whether there are measures in place to test the redactions periodically to see if the need for confidentiality might have passed. David McAuley From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Suzanne Radell Sent: Tuesday, March 17, 2015 4:57 PM To: 'Robin Gross'; wp2-reconsideration(a)icann.org Cc: wp2(a)icann.org; Accountability Cross Community Subject: Re: [CCWG-ACCT] Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress Hi all, and many thanks to Robin and others for their contributions. I am not sure my proposal will be as constructive as others, but I'm willing to give it a try. It would be helpful if work on this issue could also address the transparency aspects of the IRP, which would optimally provide for more access to updates/information (or at least that information which is not considered confidential) on a regular or routine basis. At present, the site contains the basic data related to the filing of an IRP and will provide the results of an IRP that has been completed. For all of the pending requests, there is no way for anyone other than the parties directly involved in an IRP to learn the status or the results of the CEP and/or the IRP itself. As an example, and I will defer to Alice Munyua on this to confirm, if the question had not been put to the ICANN Board by the African Union Commission during the GAC-Board meeting in Singapore seeking a status report of the .africa IRP, we would not have learned that the panel's work was in abeyance due to the death of one of the panelists. And all we know at the present time is that the work has been halted; no sense of when it might re-start, much less conclude. In looking at the list of issues embedded further down in this email chain, I initially thought that "accessibility" might be the right heading, but have since retreated from that since it applies more to who has access to an IRP and under what conditions. Would a more general "transparency" heading work? I trust you will let me know if you think this is a non-starter, so let me thank you (!) in advance for your feedback. Cheers, Suz Suzanne Murray Radell Senior Policy Advisor, NTIA/OIA sradell(a)ntia.doc.gov<mailto:sradell@ntia.doc.gov> 202-482-3167 From: accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Robin Gross Sent: Tuesday, March 17, 2015 12:58 PM To: wp2-reconsideration(a)icann.org<mailto:wp2-reconsideration@icann.org> Cc: wp2(a)icann.org<mailto:wp2@icann.org>; Accountability Cross Community Subject: Re: [CCWG-ACCT] Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress Below are a few further elaborations on the Reconsideration Request reforms that are needed. Please provide additional feedback and suggestions on how to reform this process. Thanks, Robin ICANN Bylaws, Art IV, Section 2 is on the Reconsideration Review Process https://www.icann.org/resources/pages/governance/bylaws-en Reconsideration Request reforms to address implementation and operational issues including: 1. Standing Amend "who" has proper standing to file a Reconsideration Request to widen its scope to include any party impacted by the ICANN decision / inaction. The current two step test of demonstrating both i) material harm, and ii) adversely impact is too burdensome and restrictive. Current rule: "Every requestor must be able to demonstrate that it has been materially harmed and adversely impacted by the action or inaction giving rise to the request." - Bylaws IV Section 2, Para 8 2. Standard of Review Amend the standard of reviewing a Reconsideration Request to include a re-examination of the underlying merits of arguments and decisions. Also broaden the types of decisions which can re-examined. Also, amend when BGC may "summarily" dismiss a request based on Requester not participating in a public comment period on the issue. (Para 9) 3. Composition Currently, the Board Governance Committee works with the legal dept to formulate an initial recommendation* to the full board. While I understand the need for some legal advice to the BGC, it may be the case that less reliance on the legal dept to guide the BGC on its recommendation would be more fruitful and encourage the board members themselves to engage deeper in the process, obtain a greater understanding of the underlying issue, and take more responsibility for making these decisions. (*Except: Issues regarding staff action/inactions and 3rd party panels in new gtld program, in which the BGC has option of making final decision itself, rather than full board. This should be amended so entire board learns what staff is up to, not just BGC). 4. Selection N/A 5. Decision-making Transparency improvements are needed regarding the information that make up the decision-making process. Reconsideration Request decisions currently have "precedential value" - so a party affected by a previous decision should be able to challenge the previous decision to which his case is bound under precedent. 6. Accessibility Extend the time deadline for filing a Reconsideration Request to 30 days. Currently, the deadline for filing is (generally) 15 days from when decision/action is taken and posted or when one can reasonably conclude action/decision will not happen. 7. Implementation Requestors may need a follow-up process regarding implementation of decision reconsidered 8. Due process Provide opportunity for oral argument with rebuttal opportunity. Currently it is at the Board's option if it wishes to permit an oral discussion. Provide all briefing materials supplied to board to Requester so that they may know the arguments against them and have an opportunity to respond. Final decisions should be issued sooner. Requests for "urgent" reconsideration should be broadened and less subjective in criteria for acceptance of "urgency". What else???? On Mar 8, 2015, at 3:19 PM, Robin Gross wrote: Hello, This email is to kick-off the discussion for the Reconsideration Sub-Group of the CCWG Work Party 2 Review and Redress Mechanisms. Volunteers so far: Robin Gross, Ed Morris, Chris LaHatte, David McAuley, Carlos Gutierrez (please send a note to <alice.jansen(a)icann.org<mailto:alice.jansen@icann.org>> to volunteer for this sub-group). This WP2 sub-group should will look specifically at issues to be addressed with respect to improving ICANN's accountability mechanisms involving a reconsideration process of a board or management decision. Specific Task: To review the current rules under which reconsideration occurs, and to propose appropriate changes to those rules to create adequate accountability. Existing "Reconsideration Request" accountability mechanism: See ICANN Bylaws Art. IV, Sec. 2) Board reconsideration of: - One or more staff actions or inactions that contradict established ICANN policy(ies); or - 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 - 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. ----------------------------------------------------------------------- Suggestions for Change/Enhancement ICANN's Reconsideration Processes: 1. Mechanism for review of Board or management action in conflict with ICANN Bylaws or Articles of Incorporation. 2. Mechanism to require community (members, AC/SOs, etc.) to require Board to act on, implement, amend, accelerate implementation of, a previously approved ATRT recommendation. 3. Change bylaws for Reconsideration Process: trigger when board acts arbitrarily or capriciously; decisions subject to Independent Review. 4. Reconsideration of staff action/inaction. 5. Broadly expand grounds on which ICANN decisions and operations can be challenged; lower threshold to succeed in a challenge. 6. Reasonable time deadlines and other due process considerations. What else? ------------------ Proposal to address implementation and operational issues including: * Standing * Standard of review * Composition * Selection * Decision-making * Accessibility * Implementation * Due process Work Party 2 Reconsideration mailing list - wp2-reconsideration(a)icann.org<mailto:wp2-reconsideration@icann.org> - is now active. Public archives may be found at: http://mm.icann.org/pipermail/wp2-reconsideration/ May this sub-group please have a wiki page? Thank you. Please volunteer for this sub-group - especially if you have any experience with ICANN's reconsideration process. Thanks, Robin

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membership
by Kavouss Arasteh March 12, 2015

March 12, 2015

Dear All, If my name is not there pls register me as member Regards Kavouss

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Your dedicated wiki page
by Alice Jansen March 9, 2015

March 9, 2015

Dear all, This is to inform you that you now have a dedicated page on the CCWG wiki - https://community.icann.org/display/acctcrosscomm/Request+for+Reconsiderati… Links to other Subteam pages can be found here: https://community.icann.org/display/acctcrosscomm/WP2+Subteams Please feel free to contact staff - acct-staff(a)icann.org<mailto:acct-staff@icann.org> - should you need any help posting documents on the wiki. Thanks, Kind regards Alice

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Your Reconsideration Mailing List
by Alice Jansen March 6, 2015

March 6, 2015

Dear all, This is to inform you that your mailing list - wp2-reconsideration(a)icann.org - is now active. Public archives may be found at: http://mm.icann.org/pipermail/wp2-reconsideration/ Please contact me (off list) should you have any questions or concerns. Thanks Best regards Alice

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