Draft Letter to ICANN Board & CEO

[Robin Gross]

Yes, Willie, you are right that we ARE asking the board to reconsider
its decision to impose the staff drafted charter.  But what we should
say is that "there are elements of the 30 July decision we will
accept" so as to not cause problems for the Seoul council seating,
etc.  So we should amend para 3 to reflect that we do want a new
hearing and reconsideration of the decision that the charter cannot
be revisited for a year.   Perhaps we should also mention in this
letter that we request an opportunity to present our materials
directly to the board for discussion on its 27 Aug. meeting or its
early Sept. board retreat.

I like the suggestion of looking at this through an administrative
law perspective, although it may not have legal teeth (it could have
moral sway).   Anyone know any administrative law / constitutional
law geeks who may want to take on that research?

Thanks,
Robin


On Aug 11, 2009, at 1:39 PM, Willie Currie wrote:

> Dear Mary
>
> Great letter! Just two quick points - I'm not sure about paragraph
> 3. I thought the idea expressed in today's meeting was precisely to
> make a request to the Board to reconsider its decision. So I would
> suggest striking out paragrph 3 and replacing it with a formal
> request to the board to reconsider its decision.  That would also
> change the tenor of the letter from  a plea to correct
> misperceptions to a  formal request to reconsider a decision.
>
> With regard to section 2 on specific issues with the NCSG Charter
> adopted by the Board, isn't there a body of US adminstrative law we
> can draw on to attack the decision on the grounds of administrative
> injustice, as it appears that the process adopted by ICANN in its
> decision-making on the charters has been based on:
>
> - the misperceptions circulated about the NCUC by the ALAC chair
> and others (p9)
> - the timing of the late release of the SIC/Staff Charter and the
> process surrounding its tabling to the Board (p7)
> - the failure of the Board to discuss the NCUC's proposed Charter,
> implying the failure of the NCUC's views to be heard by an
> administrative body (is there evidence of this?) (p10)
> - the filtering of views in the 'Summary & Analysis' document and
> the short time it was provided to the Board before the July 30
> Meeting (today's NCUC meeting)
>
> In addition, the disparity in treatment between the Board's
> treatment of the NCSG and CSG charters raises issues of
> administrative fairness regarding constituencies and the issue of
> the ICANN Board being guilty of discrimination and prejudice (p10).
>
> I don't know how administrative justice works in the USA but these
> are the kinds of issues in other jurisdictions which would be used
> to overturn a decision of an administrative body on technical
> grounds of administrative fairness, whether through formal
> processes of judicial review or alternative dispute mechanisms,
> which is often easier to do than challenging issues on the merits
> or content of decisions.
>
> Willie
>
> Willie Currie
> Communications and Information Policy Programme Manager
> Association for Progressive Communications (APC)
> www.apc.org
>
> Mary Wong wrote:
>>
>> Dear NCUC'ers,
>>
>> Attached is the draft letter that was discussed during the
>> constituency call held earlier today. For those who were not able
>> to be on the call, the purpose of the letter is to draw the
>> Board's and Mr Rod Beckstrom's attention to the injustice of the
>> process which led to the arbitrary imposition of the SIC/Staff-
>> drafted transitional NCSG Charter (including the selection by the
>> Board of 3 NCSG Councilors in the new User House). The NCUC Exco
>> has also discussed the possibility of sending this document as an
>> "open letter" to the GNSO community. Although long, it was drafted
>> specifically in the form of a narrative-cum-summary of the
>> process, and can therefore also serve as a reminder/introduction
>> to the whole issue.
>>
>> For those on the Exco who have seen a preliminary version of this
>> draft, please review it carefully nonetheless as certain issues
>> have been re-framed and additions made.
>>
>> Please send comments either directly to me or this list. As agreed
>> on the constituency call, we should send this sooner rather than
>> later, so a prompt response is very much appreciated!
>>
>> Thanks,
>> Mary
>>
>>
>> Mary W S Wong
>> Professor of Law
>> Franklin Pierce Law Center
>> Two White Street
>> Concord, NH 03301
>> USA
>> Email: mwong at piercelaw.edu
>> Phone: 1-603-513-5143
>> Webpage: http://www.piercelaw.edu/marywong/index.php
>> Selected writings available on the Social Science Research Network
>> (SSRN) at: http://ssrn.com/author=437584
>




IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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