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[Comment-Irac] Comments on Advisory Committee Report

[These comments are also contained in the attached file]

May 18, 1999

To: ICANN Board of Directors

Subject: Comments on the May 7, 1999 Interim Report of the Advisory Committee on Independent Review

From: David G. Post, Temple University Law School (Rapporteur)
A. Michael Froomkin, University of Miami School of Law
David R. Johnson, Wilmer, Cutler, and Pickering
Andrew L. Shapiro, Aspen Institute Internet Policy Project
Christine Varney, Hogan and Hartson
Dan Steinberg, Synthesis: Law & Technology

We read with great interest the Report referenced above.  The work in which the Advisory Committee is engaged regarding the establishment of an independent review mechanism for ICANN is of the deepest importance.  Generally speaking, we believe that the Interim Report is an outstanding first step, and that implementation of the principles there set forth will go a long way towards insuring that ICANN can equitably and effectively fulfill its important mission, and we congratulate the members of the Advisory Committee for the outstanding job that they have done in this regard.  We believe that there are ways in which this draft can be clarified and strengthened, and we have set out our suggestions below (see Section II, “Specific Comments”).

Background The Department of Commerce White Paper of June 5, 1998 (“Management of Internet Names and Addresses”) stated that the transition to private-sector management of the DNS
“. . . applies only to management of Internet names and addresses and does not set out a system of Internet ‘governance.’ Existing human rights and free speech protections will not be disturbed and, therefore, need not be specifically included in the core principles for DNS management. In addition, this policy is not intended to displace other legal regimes (international law, competition law, tax law and principles of international taxation, intellectual property law, etc.) that may already apply. The continued applicability of these systems as well as the principle of representation should ensure that DNS management proceeds in the interest of the Internet community as a whole.”
Similarly, the November 28, 1998 Memorandum of Understanding between the Department of Commerce and ICANN stated that ICANN would be responsible only for “technical management of the DNS.”

These are critically important principles.  If these limited functions are performed well, ICANN will be providing an invaluable service to the Internet community that will insure the continued growth and development of this vibrant global medium.  That community deserves, however, assurances that ICANN will not stray beyond its limited mandate, even in the face of what will undoubtedly be enormous pressure that it do so.  In a letter to the ICANN Board of Directors dated November 12, 1998, David Post wrote:
Any entity responsible for, and exercising control over, the rootserver databases possesses immense power over the future development of the Internet itself, and will, accordingly, be subject to immense pressure to act in ways that may be contrary to best interests of the Internet community as a whole. Devising ways to prevent arbitrary, oppressive, or selfinterested actions by this entity is a task of deep  of truly "constitutional"  importance to that community. . . . What is at issue is not the good will and honorable intentions [of the ICANN Board of Directors] but the ability of the institution . . . to carry out its functions in a fair and equitable manner whoever may be occupying positions on the Board in the future. . . .

Without mechanisms pursuant to which others are given the requisite means to check the Board's exercise of its powers, the Board, no matter how “representative” it may be, will succumb to the inevitable and inherent pressures to act not in the interests of the Internet community as a whole but in its own selfinterest (or in the interest of whatever faction manages to gain control of the Board).   These "checks and balances" can be provided in many different ways. Article III, Section 4(b) of the ICANN Bylaws already provides that the Board may “adopt policies and procedures for independent thirdparty review of Board actions alleged by an affected party to have violated the Corporation's articles of incorporation or bylaws.”  Putting this into practice in a meaningful way  creating an institution or set of institutions with the authority to hear, on a global basis, claims that the Board has acted in a manner contrary to the letter or spirit of its Charter or ByLaws  is absolutely mandatory to provide the necessary counterweight to the Board's powers.”
We continue to believe that a properly constituted Independent Review Panel (IRP) can serve as an important check on ICANN’s exercise of its powers and can help to insure that ICANN remains focused on the narrow (though critically important) task with which it has been charged. 

The most difficult part of developing an effective framework for the IRP is finding the correct balance between the independence of the IRP and the simultaneous commingling of its functions with those of the other ICANN components.  Independence from the ICANN Board of Directors, in other words, is necessary, but it is not sufficient, to insure that the IRP fulfills its mission of serving as a brake on any tendency on ICANN’s part to expand the scope of its powers beyond these technical management issues.  To put the matter simply, constituting a completely independent Review Panel is trivially easy; indeed, any individual or institution can unilaterally declare itself a “Review Panel,” and can invite any individual with a claim that ICANN has acted in a manner contrary to its governing documents to bring such a claim to its attention for adjudication.  The problem, of course, is that such an institution will lack the necessary credibility to function effectively as a real check on ICANN’s actions; because its decisions will not need to be taken seriously by the ICANN Board, a vicious cycle is initiated whereby claimants will not bring it serious claims, its members will not take the time to render reasoned and persuasive opinions, the Board will be even less likely to take it seriously, and so on.  What is required is enough independence to function free of control by the ICANN Board (or the other ICANN components) with sufficient interconnection to and inter-dependence with the other ICANN components to give its decisions some presumptive weight and substance. 

Although the Draft Principles recognize and attempt to strike that balance, we believe that they can be strengthened, in the ways described below. 

Specific Comments 

These comments are set forth in what we regard as descending order of significance. 

1.  Powers of the IRP

Principle 9 of the Interim Report states: 
“The IRP shall have the authority to:  (i) issue advisory opinions on claims that an action or inaction of the ICANN Board was contrary to the Corporation's Articles of Incorporation and/or Bylaws, (ii) request additional written submissions from the claimant, the Board, the Supporting Organizations, or from other parties, and (iii) recommend that the ICANN Board stay any action or decision until such time as the Board reviews and acts upon the opinions of the IRP.”
We believe that this undercuts, significantly and perhaps fatally, the IRP’s ability to perform its limited but critical mission, by creating an institution that is in a sense too independent of the ICANN Board.  As written, the IRP is granted no power greater than that possessed by any unaffiliated institution; the World Intellectual Property Organization, the International Trademark Association, the Cyberspace Law Institute, the Board of Directors of Network Solutions, Inc.  each of these institutions already possesses the “authority” to issue advisory opinions, to request additional information, and to make recommendations to the ICANN Board.  There is, of course, nothing wrong with any or all of these institutions (and others) performing these activities; indeed, public debate and discussion of ICANN’s activities will be enriched if they do so.  But the IRP should be designed so as to serve as something other than an another outside commentator on ICANN activities, it must have some additional quantum of authority bestowed upon it by the ICANN Board itself if it is to possess the credibility in the eyes of the public and in the eyes of the ICANN Board necessary to perform its mission.

We would recommend that, at a minimum, this Principle be restated to include a sentence to the effect that “The IRP shall have the authority to determine whether action or inaction of the ICANN Board was contrary to the Corporation’s Articles of Incorporation and/or By-Laws.”  That may appear to be an insignificant change, but we do not believe that it is.  It places primary  though not exclusive  responsibility for determining whether the Board has acted contrary to its governing documents in the IRP.  The IRP will not, of course, possess any form of “executive” power; it will remain unable to enforce unilaterally any such determination.  The Board will retain ultimate authority over ICANN’s affairs and will remain free to disregard any such determination by the IRP; it will, however, serve to distinguish the IRP from other, unauthorized, advisory bodies, and it will make it somewhat more difficult for the ICANN Board to disregard its findings without at a minimum giving due consideration to the IRP’s reasoning. 

We would additionally propose, as a means of ensuring no less (and no more) than that due consideration, that the IRP’s power to “recommend that the ICANN Board stay any action or decision” be strengthened to encompass the power to stay such action or decision at least until the Board considers such a stay and votes to overturn it.

Some may suggest that attempts such as these to enlarge the scope of the IRP’s power run afoul of Section
5210 of the California Corporation Code, which allows the Board of Directors to “delegate the management of the activities of the corporation to any person” provided that the corporation’s powers continue to be “exercised under the ultimate direction of the Board [of Directors].”  We would respond to such a suggestion with two points.  First,  the tail of the California Corporation Code should not be allowed to wag the dog of a truly international Internet-based institution; if a provision of the California Corporation Code prevents ICANN from setting up an independent review panel of this kind, we would respectfully suggest that the Board consider re-locating to a jurisdiction that takes a more enlightened view of the matter.  But second, more importantly, we do not believe that there is a conflict between the provisions set forth above and California law.  Because the IRP has no “executive” authority  no power to implement directly any determination that it may make or to "manage[ ] the activities of the corporation"  the Board clearly retains “ultimate direction” of corporate action.  No IRP decision can be put into place unless and until the Board acts  by rescinding a prior action deemed by the IRP to be outside of, or by taking some action that the IRP has determined is required by, the ICANN By-laws or Charter  and the Board will not (and should not) act unless it is satisfied that the IRP’s view of the matter in question is a reasonable one.

2.  Standing to file claims.

Principle 6 of the Interim Report states that “Any individual or entity may file a claim if that individual or entity has been materially affected by the contested action or failure to act by the ICANN Board” (emphasis added).  As noted in its Comment 6, the Advisory Committee apparently believes that giving “any affected party” the right to bring a claim to the IRP “sweeps too broadly,” insofar as “nearly every Internet user can be said to be affected in some quantum by nearly any decision of the ICANN Board.”

We would urge the Advisory Committee to reconsider this decision.  It is precisely because “nearly every Internet user can be said to be affected in some quantum by nearly any decision of the ICANN Board” that enabling such persons to bring their claims to the IRP is so important.  The IRP, after all, may well be the only forum where such claims can be aired.  We understand the concern with the possibility that the IRP will be presented with frivolous and meritless claims.  But the “materially affected” standard  indeed, no standard  will prevent frivolous claims from being filed.  Whatever the standard chosen, the IRP will (and should) develop mechanisms for disposing quickly and efficiently with such claims.  The goal is to insure that the IRP duly considers non-trivial claims that ICANN action (or inaction) was contrary to the corporation’s governing documents; it is not at all clear to me that narrowing the standing requirement serves this goal, and a stronger argument can be made that it impedes it.

3.  Composition of the IRP

Principle 2 of the Interim Report states:
“The Members of the IRP shall be nominated by  a Nominating Committee and confirmed by a 2/3 vote of the ICANN Board.   The Nominating Committee shall be composed of individuals who are not members of the ICANN Board of Directors.” 
The goal of securing a degree of independence for the IRP by having its members appointed by a Nominating Committee composed of non-Directors (subject to approval of a supermajority of the Board of Directors) is an excellent one.  The Interim Draft does not, however, specify the way that members of the Nominating Committee will be appointed, and the Advisory Committee might consider specifying that more precisely.  We assume that the Committee contemplates Board appointment of Nominating Committee members; this, however, has the potential for undoing precisely the independence at which the provision is aiming; the Advisory Committee might consider, for example, allowing the Domain Name Supporting Organizations to play a role in appointing the members of the Nominating Committee.

4.  Compensation for IRP Members

Principle 10 of the Interim Report states: 
“Initially, the Members of the IRP shall be reimbursed for their expenses.  In the future, subject to the availability of funds on the part of ICANN, the Members of the IRP should be paid a reasonable fee for their professional services.”
Elsewhere in the Interim Report (Comment 1) there is a reference to the IRP members serving “essentially in a voluntary capacity [without] adequate time to devote to the IRP.” 

Even with the changes that we have suggested here, the IRP will be entirely dependent, as the Report states in Comment 9, on “the prestige and professional standing of its members, and on the persuasiveness of its reasoned opinions.”  The IRP’s prestige may be significantly diminished to the extent that it is viewed as a part-time, voluntary engagement, and its ability to perform its functions in a professional and persuasive manner may also be undercut to the extent that is the case.  We recognize the uncertainty surrounding the scope of the IRP’s duties, the number of claims that may be presented to it, and the time that members will need to devote to those duties, all of which may make it unwise to set any specific level of compensation for IRP members at this time.  But the principle that IRP members will be compensated, not merely as an afterthought if there is money remaining in the ICANN till but because the IRP is a critical part of the ICANN structure that needs to attract individuals of the highest possible quality, is an important one that should be more clearly stated.


David Post -- Temple Univ. School of Law
215-204-4539	Postd@erols.com		http://www.temple.edu/lawschool/dpost.html