Draft Letter to ICANN Board & CEO

[Robin Gross]

On Aug 11, 2009, at 2:05 PM, Avri Doria wrote:

> Hi,
>
> I am not sure US laws cares about administrative justice.  Would be
> interesting to know.  But one can certainly demand that ICANN live
> up to such conditions of fairness.
>
> Might be a good position to take in a possible Ombudsman appeal.
>
> BTW: also need to add in the fact that the 2 SGs in the contracted
> parties house were ultimately allowed to have a charter that did
> not include Constituencies.   As far as I can tell there have not
> been any explanations, either cogent or otherwise, of why they were
> allowed but NCSG wasn't.

Yes, I agree we should add this point in to the letter about the 2
other SG's adopting the SG approach we formulated, but we were
singularly denied.   We may also want to add in a section that goes
into the merits / arguments why the civil society charter is a better
model than the staff drafted charter (encouraging fragmentation v.
unity, etc.).

Thanks,
Robin







> Perhaps this fits into the argument about the NCSG proposed charter
> having never really been considered because it was superseded by
> the Policy Staff created charter.
>
> Note: i was never in favor of constituency-less SG charters, but
> that is what NCUC bottom up process originally decided on, and as I
> understand only changed when it became clear that it would not be
> allowed.  At least not for the NCSG.  I apologize for my role in
> helping to convince NCUC to back down on that (and some other
> stuff) - but i never envisioned that the Board would allow it - i
> was wrong.
>
>
> a.
>
> On 11 Aug 2009, at 16:39, Willie Currie wrote:
>
>> 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.




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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