[Comment-Irac] Comments on Advisory Committee Report

[David Post <Postd@erols.com>]

[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.

comments_on_advisory_committee_report.doc

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