Draft Letter to ICANN Board & CEO

[Dan Krimm]

Re: administrative justice, I'm not exactly the legal expert around here,
but I do know that the APA (Administrative Procedures Act) applies to US
executive agencies, like the FCC and the NTIA.

The problem with ICANN of course is that its JPA-defined relationship with
NTIA is not entirely clear in terms of oversight, and thus as a QUANGO
(quasi-non-governmental organization that executes certain governmental
functions) it falls into a sort of gray area in the law.

I don't know firsthand, but it may have been explicitly intentional to
create ICANN as a QUANGO in the first place, specifically to try to avoid
the APA provisions.  (I seem to recall that Karl Auerbach has some ideas
about the JPA along these lines, but I don't know how universally accepted
they are.)

IANAL, but if one were to go that route, on the face of it, it would seem
to involve filing a lawsuit against NTIA with regard to APA, in its
oversight of ICANN via the JPA (and thus it might seek to clarify how far
APA applies to QUANGOs, and if it doesn't go all the way then there might
be cause to press politically for new legislation to push the APA into
QUANGO-land jurisdiction?).  But the various lawyers around here would be
better prepared to comment in any detail.  Not least, in terms of the
substantial resources it would take to follow through comprehensively on
any such litigation strategy and/or political legislative strategy.

At the very least, relevant provisions of the APA might well be held up as
a precedent and an example for how ICANN *ought* to operate, given the
significant public governance function it fulfills under (US)
government-granted authority (separate from the role of the GAC).

Dan

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On Tue, August 11, 2009 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.  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.
>