[Comment-Irac] Comments on Advisory Committe Draft Principles

[David Post <Postd@erols.com>]

July 11, 1999

To Advisory Committee on Independent Review

From: David Post

Subject: Additional Comments on Draft Principles (and Addendum)

I would like to submit the following comments on the Advisory Committe's
Draft Principles for Independent Review (as supplemented by the Addendum,
posted May 26, 1999).

1.  According to Principle 2 of the Draft Principles, the "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."  

I think that this structure is sound in principle, both in terms of the
need for an independent Nominating Committee to propose names for the
IRP, and the need for Board approval of those individuals put forward for
this position.  The question becomes, then: how is the Nominating
Committee to be formed?  I believe that any structure that would
allow the Board itself to name the members of the Nominating Committee to
be flawed and contrary to the fundamental principle that the Nominating
Committee (and, more importantly, the Members of the IRP) be independent
of the Board (though subject to a check by the Board through the
requirement of 2/3 Board approval). 

I believe the Committee should consider a role for the Supporting
Organizations in forming the Nominating Committee.  Under the
current proposed structure, as I understand it, the Supporting
Organizations play no particular role with respect to the IRP.  The
Supporting Organizations will play an important role in ICANN's
activities, and will serve as a separate focus of power for ICANN, and I
do not believe it would be inappropriate for them to have an indirect
role in the nomination process.  I would propose that the Nominating
Committee be formed by allowing each Supporting Organization to name one
member to the Nominating Committee. To further the goal of independence
of the IRP, you might consider adding a qualification that no person
serving in any official capacity within the ICANN structure (and, in
particular, no member of the Names Council), be permitted to serve
simultaneously on the Nominating Committee.

2.  Draft Principle 9, as modified in the May 26 Addendum, provides
that the IRP shall have the power to "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."  First, I fully and
wholeheartedly support the change in Principle 9 from the May 7 draft
(which had provided that the IRP could issue "advisory opinons"
regarding possible Board violations.  You sought comment on three
possible additional powers for the IRP:  

     (a) The power to immediately stay enforcement or
execution of the contested decision of the Board. 
     (b) The power to stay enforcement or execution
of the contested decision of the Board only if the Board has failed to
act on the IRP's determination within 14 days. 
     (c) The power to require the Board to act on the
IRP's determination at its next meeting or within 30 days, whichever is
sooner. 

Although I recognize that it is in some sense the "weakest" of
the three alternatives, I would urge the Committee to adopt (c).  As
many (myself included) have stressed during your deliberations on these
questions, the ultimate power of the IRP is the power of persuasion and
the power of public opinion and public credibility.  The goal here
is not to create an institution that is in some sense more powerful than
the Board of Directors, or that stands in some superior relationship to
the Board, which is what I would fear from adopting either of the first
two alternatives.  Just as the IRP functions as a check on the
Board's power, through its power to declare that the Board has acted in a
manner contrary to its governing documents, so, too, can the Board act as
a check on the IRP's powers, through its ability to take actions that it
believes are in the best interests of its various constituencies and the
Internet as a whole notwithstanding such a declaration.  If the IRP
is performing its functions well -- if it is producing reasoned and
persuasive decisions -- the Board will and should be less likely to
ignore its determinations, particularly if, as contemplated by
alternative (c), it must consider and act upon any such determination in
a public and transparent manner.  I do not believe the Board can, or
should, be forced to abide by any such determination. 

David G. Post
Associate Professor of Law
Temple University Law School
Postd@erols.com

 

http://www.temple.edu/lawschool/dpost.html