Reconsideration Request 02-4 Received: 12 April 2002

Subject: Request for reconsideration of Resolutions 02.46 and 02.47 concerningimplementation of the Independent Review
Policy
Date: Fri, 12 Apr 2002 12:04:03 -0400
From: Ethan Katsh <katsh@legal.umass.edu>
To: reconsider@icann.org

To whom it may concern -

Attached, as both .doc and .htm files, is a request for reconsideration of
Resolutions 02.46 and 02.47 concerning implementation of the Independent
Review Policy. These are Resolutions passed at the March 14, 2002 Board
meeting. If you are unable to open the attachments or would prefer them in
a different form, please let me know.

Thank you for giving this matter your attention.

Ethan Katsh
Professor and Director
Center for Information Technology
and Dispute Resolution
University of Massachusetts
Amherst, MA
(voice) 413-545-5879
katsh@legal.umass.edu
http://www.umass.edu/dispute

From: Ethan Katsh <katsh@legal.umass.edu>
To: reconsider@icann.org
Subject: Request for reconsideration of Resolutions 02.46 and 02.47 concerning implementation of the Independent Review Policy
Date: April 12, 2002

This is a request for reconsideration of the following resolutions passed by the ICANN Board of Directors at its 14 March 2002 meeting in Accra, Ghana:

Whereas, in resolutions 01.49 through 01.51 the Board called for the Independent Review Nominating Committee to present a slate of nine nominees meeting the requirements of the Independent Review Policy;

Whereas, the Committee has been unable to present a slate of nine nominees under the Independent Review Policy in the ten months that have passed since the call for nominations;

Whereas, the General Counsel has presented to the Board a description of the significant difficulties that have confronted the Nominating Committee and has recommended that the Board thank the committee members for their efforts and immediately begin a review of the Independent Review Policy with the goal of providing a more workable independent review mechanism;

Whereas, particularly in view of the ongoing discussions of the need for broader ICANN reforms, the Board believes that the present Independent Review Policy should be reviewed and evaluated in the larger context of ICANN reform;

Whereas, in resolution 01.132 the Board established a Committee on Restructuring (since renamed the Committee on ICANN Evolution and Reform in resolution 02.20), to monitor and provide reports to the Board on restructuring issues;

Resolved [02.46] that the members of the Independent Review Nominating Committee are thanked for their service in attempting to carry out the extremely challenging task presented to them and the committee is excused from further service;

Further resolved [02.47] that the issues concerning an independent review mechanism are referred to the Committee on ICANN Evolution and Reform for its consideration in the context of its ultimate recommendations on ICANN evolution and reform.

The ICANN bylaws permit a request for reconsideration to be filed by any "affected" party. I am a domain name holder and am also the Director of Online Ombuds Office, an organization with membership in the non-commercial constituency. The Board's action in disbanding the Independent Review Nominating Committee clearly affects me by preventing me for the foreseeable future from appealing a Board action that I believe conflicts with ICANN's bylaws. Such an appeal might have involved the very Board action that is the subject of this reconsideration request.

I might note that I was a member of the original Independent Review Advisory Committee that drafted the Independent Review Policy and have been following the implementation process carefully over the last three years. I have read General Counsel Louis Touton's report on the Independent Review Nominating Committee and I have listened to the five minute discussion of the above resolutions that took place in Accra.

My request is to stay the resolution disbanding the Nominating Committee. If the Board's action is not stayed, the independent review process mandated by both the ICANN bylaws and the ICANN-Department of Commerce Memorandum of Understanding will never be implemented. In addition to the stay, I request the Board to remove the non-participating members of the nominating committee, require the appropriate supporting organizations to nominate replacements promptly, reconvene the nominating committee so that it can complete its work, and consider the panelists put forward by the nominating committee.

Background

Section 4(b) of the ICANN bylaws requires ICANN to "adopt policies and procedures for independent third-party review of Board actions alleged by an affected party to have violated the Corporation's articles of incorporation or bylaws." In slightly different language, Section V.C.2 of the Memorandum of Understanding between ICANN and the United States Department of Commerce requires that ICANN "Collaborate on the design, development and testing of procedures by which members of the Internet community adversely affected by decisions that are in conflict with the bylaws of the organization can seek external review of such decisions by a neutral third party."

ICANN is bound by both its bylaws and the MOU. To fulfill its responsibilities and carry out the requirements for independent review required three things, drafting a policy, approving a policy, and implementing the policy by appointing panelists. Drafting of the policy was completed by August, 1999 and approval of the policy by the Board occurred in March, 2000. In addition to approving the policy, the Board passed Resolution 00.21, which stated that "the President and staff are directed to implement the Independent Review Policy ..." Each year, ICANN submits a status report to the Department of Commerce on its progress toward completion of the tasks specified in the MOU, one of which is the independent review process. The status report submitted in June, 2000, a few months after the independent review policy had been adopted by Board, identified the independent review process as a significant responsibility and indicated that it was in the implementation phase, indeed that it was "well underway and should be completed within the next few months." This did not occur and the nominating committee was not even appointed until April, 2001. In July, 2001, in its third status report, ICANN again acknowledged its responsibility to put an independent review process in place and stated, in essentially the same language used a year earlier, that "this task is well underway, and should be fully implemented within a few months." Again, however, implementation did not occur and, due to the action taken by the Board on March 14, 2002, will likely never occur.

The importance of the Independent Review Process was confirmed in Amendment 2 to the ICANN/DOC Memorandum of Understanding that was approved on August 30, 2000. Some parts of Section V.C were modified but the amended Section V.C.3 required ICANN to do the following:

Continue to develop and test the ICANN Independent Review process to address claims by members of the Internet community that they have been adversely affected by decisions in conflict with ICANN's by-laws or contractual obligations. Report on ICANN's experience with the fully implemented reconsideration process and independent review process.

What has delayed implementation was the process of nominating and appointing panelists. The nominating committee was appointed in April, 2001, asked for an extension to October, 2001, and was then apparently not heard from until February 2002. In February 2002, the Chair of the nominating committee did submit a list of nine names for approval as panelists. However, only three of the six members on the committee had participated in the work of the committee and in the selection of nominees. Prior to the Accra meeting, General Counsel Louis Touton informed the Board and the Nominating committee that since half the committee did not participate, there was no quorum and the Board should not vote on the nominees. Mr. Touton also recommended that the nominating committee be disbanded and that a review of the nominating process, something scheduled to begin in May, 2003, begin now. These latter two recommendations are reflected in Resolution 02.46 and, with one very significant difference discussed below, in Resolution 02.47. Mr. Touton also stated that

In the meantime, the Board may want to consider whether some type of interim independent-review mechanism should be adopted. Although no "consensus policies" have been adopted through the ICANN process that would be subject to independent review under the contracts with registrars and registry operators, it would be beneficial to institute a process by which those claiming bylaws violations in Board actions materially affecting them can seek independent review.

This recommendation of Mr. Touton's was ignored and no action was proposed or taken concerning it.

Basis for request for reconsideration

1. The Board's action, particularly Resolution 02.46, is inconsistent with responsibilities placed on ICANN by the MOU agreed to by ICANN and the Department of Commerce.

The MOU is quite specific that ICANN is required to design, develop, and test an independent review process. ICANN has told the Department of Commerce twice that progress in doing this had occurred and that an independent review process would be available shortly. Whatever the reasons, the commitments in the MOU have not been fulfilled, the expectations raised in the status reports have not been met, there is no process in place, and the nominating committee, a key ingredient in implementing the independent review process, has been disbanded. Very clearly, implementation has been halted.

Until the action taken in Accra, what had held up implementation of the process were delays and inaction. The Board vote in Accra is of a different nature. Even though the MOU speaks of "collaboration," ICANN, on its own, has now put the nominating committee out of business and sent to the Committee on Evolution and Reform not simply the question of reviewing the nominating committee and the nominating process, as Mr. Touton recommended, but all the "the issues concerning an independent review mechanism." Whatever these issues are, the Evolution and Reform Committee has not been asked to find remedies for perceived problems in selecting suitable panelists, but to study how independent review fits "in the larger context of ICANN reform." This latter activity has nothing to do with putting implementation back on track.

The Accra vote means that the status report to be submitted in July 2002 will have to state that the Board has decided on its own that there will be no implementation of an independent review process. There is nothing in the Board's action to suggest that there is any intention, at some later date, to resurrect the nominating committee. Mr. Touton had recommended a study of the nominating process, an activity which, as discussed below, was not justified but which could have been seen as somehow keeping the independent review process alive. The action the Board actually took removes life support from the independent review process. The Board's responsibility was to put an independent review process in place and it did not, under the MOU, have unilateral discretion to either refuse to do so or to delay implementation endlessly as it has done here.

2. There were no factual circumstances that justified the Board in not meeting its responsibilities under the MOU

On what basis has the Board suspended, if not halted altogether, the implementation of the independent review process? Mr. Touton, in his report of March 6, correctly states that "progressing to a point where independent review can occur involves a sequence of many steps." The sequence had reached the point of nominating panelists for the Board to vote on. Since there was no quorum, however, a break occurred in the sequence and a decision had to be made about how to respond to this break which had occurred at a point fairly close to the end of the process needed to have independent review in place. The only documented problem and the only problem identified by the Chair of the nominating committee was that the committee was dysfunctional, in the sense that three members refused to participate. Although this was the only documented problem with the committee, the Board voted to disband it and suspend its work. I suggest that various other responses to the problem were available to the Board, actions that could have led to a functioning committee, to a committee vote with a quorum, to the submitting of a slate of nominees to the Board, and, fairly quickly, to a functioning review process.

What was the justification, therefore, for the Board vote? Mr. Touton and the Board decided not to address the documented problem of the quorum and instead based the two resolutions on what might be considered an undocumented non-problem. The resolution states that "the General Counsel has presented to the Board a description of the significant difficulties that have confronted the Nominating Committee." Mr. Touton, in his report, states his belief that the nominating committee had "a very demanding, and perhaps an impossible, task," that they had a "daunting task," and that there have been "extreme difficulties in implementing the policy." The reason for this, according to Mr. Touton, is that the qualifications required of panelists were set too high. Disbanding the committee was considered appropriate because, it was asserted, a group of panelists meeting the standards in the Independent Review Policy could not be found.

If one listens to the audio of the part of the Board meeting dealing with the independent review process, one hears several Board members express a similar opinion that finding persons with the right qualifications and commitment is difficult. Chairman Cerf even states that "it's possible that that is a set whose membership is zero." Chariman Cerf can be forgiven for a little hyperbole near the end of a four hour meeting but whether the set is zero or a hundred or a thousand is, at this point, completely irrelevant. Mr. Touton's report contained not a single bit of factual information from the nominating committee other than that three members neglected their responsibilities. If the nominating committee had informed Mr. Touton or the Board of how it had searched and that it could not find any nominees, the board action might be legitimate. But here, with three members doing the work of six, there actually were nominees turned up by the search process whom the participating half of the committee found satisfactory and were willing to recommend to the Board. There was no quorum, but the committee did have a complete list of nominees which it wished to submit and there was even unanimity among those who participated in the selecting of these nominees.

The MOU requires that the independent review process be implemented and tested. It cannot be tested unless it is implemented. Simple unsupported statements that the nominating committee had a challenging time cannot be equated with a test and is not a valid basis for halting implementation. All we have had thus far is a nominating committee in which three persons would not participate. In order to put a process in place and conduct the test required of ICANN, a functioning nominating committee is needed. The response of the Board to disband the committee, rather than to attempt to get new members or replace non-participating ones, cannot be an action that is consistent with what the MOU requires.

The Board was quite willing to find a problem where there was no real evidence of a problem existing, and completely ignore a problem, that of the delinquent committee members, that was documented. Further, we actually know, and the Board knew, that the set of qualified members was not zero. They knew this because they knew that a list of nine people acceptable to the functioning half of the committee had been submitted. They knew this because the actual list of nine names was included in Mr. Touton's report and provided to the Board. Detailed information about the nine individuals was not circulated but the five that I am familiar with are, I believe, a remarkably impressive group. They include a person nominated to be Attorney General of the United States (Baird), a law school dean who can rightly be called the father of cyberspace law (Perritt), an experienced intellectual property practitioner and academic who has been associated with both Harvard and MIT (Cabell), a widely published law school professor who served as a clerk to a U.S. Supreme Court Justice and whom one can easily imagine being nominated for a judgeship (Post), and a most respected and experienced international arbitrator who, because of his stature, was selected by WIPO to decide the very first UDRP dispute (Donahey). Again, perhaps even some of these people might not be approved by the Board. The conclusion expressed by Mr. Touton and others, however, that the bar has been set too high is certainly premature. In any event, the Independent Review Policy specifies what should be done if the Board rejects any nominee. It is to get more nominees, not to shut down the nominating committee.

I felt very privileged to serve on the Independent Review Advisory Committee because I believed that it was important for ICANN to have an independent review process. It was not that I felt that such a process would be used often. Nor did I think it likely that the Board would have its decisions overturned. What seemed to me most valuable about an independent review process was the contribution the mere existence of such a process would make to achieving legitimacy for ICANN. New organizations need to work to build community confidence and this was particularly important for an organization like ICANN. The independent review process was one of the means for persuading the Internet community that the Board would do what was required of it and would not act in ways that the bylaws did not permit. In my own view, the independent review process was less likely to be threatening to the Board than to be helpful to it in building trust. New organizations, in particular, need to take advantage of every trust-enhancing process available, and it may have been to build trust, even more than to settle disputes, that independent review was placed in the MOU. Upholding this request for reconsideration would similarly be a useful, albeit small, step toward demonstrating that the rules matter and that the institution can be trusted to correct its mistakes.

In his Report: ICANN – The Case for Reform, President Lynn proposed an ombuds process as an alternative to independent review. This is an idea that may have value and it is worth exploring whether ICANN is the type of organization in which an ombuds model would be effective. It is an idea that is appropriate for study by the Committee on ICANN Evolution and Reform. There is no justification, however, for choosing to send the issue of independent review to the Reform Committee instead of moving ahead on implementation. As required by the MOU, independent review should be put in place and tested and then, if desired, reviewed. That is where the Board's responsibility and the responsibility of the ICANN administration lie. If there had been four participating members of the Nominating Committee, no one would have thought of taking the actions that were taken in Accra. The fact that there were only three participating members should not serve as an excuse for derailing a process that even the General Counsel, in his February report, considered "beneficial."

My contact information is below. The reconsideration states that the committee will attempt to rule on such requests within 30 days. This is an urgent matter and I hope that you can meet this deadline.

Ethan Katsh
Professor of Legal Studies
and Co-director
Center for Information Technology
and Dispute Resolution
University of Massachusetts
Amherst, MA 01003
(voice) 413-545-5879
(fax) 413-545-1640
katsh@legal.umass.edu
http://www.umass.edu/dispute

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