David G. Post
Temple University Law School/Cyberspace Law Institute
For a number of reasons, I believe that the formation of an Independent Review Panel of some kind to serve as a counterweight and check on the powers exercised by the ICANN Board of Directors is of critical significance. It is not the only way to reassure the Internet community that ICANN will not act in a manner that is contrary to the best interests of that community, but it is an important and possibly indispensable piece of that most important puzzle.
Why do I think that? Constituting ICANN means
doing two things: first, clearly delineating the things that ICANN
can and cannot do and the processes that it will follow, and second, devising
some mechanism(s) to ensure that those limitations can be enorced.
Neither will work without the other. The best By-Laws in the world
will not do their job, nor will the most carefully balanced and well thought
out structural provisions, if there is no way to enorce them. As
I wrote in a letter I sent to
the ICANN Board of Directors in November, 1998 with respect to placing
limitations in the ICANN By-Laws:
Without some means outside of the Board's control for giving meaning to the principles and procedures set forth in the By-laws in the face of unforeseen and unforeseeable circumstances and events these substantive protections will inevitably prove inadequate. . . . 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 as a whole but in its own self-interest (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 of the ICANN Bylaws already provides that "the Board may, in its sole discretion, provide for an independent review process by a neutral third party" in regard to "reconsideration" of Board action. Putting this into practice in a meaningful way -- creating the equivalent of an independent judicial arm 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 By-Laws -- is absolutely mandatory to provide the necessary counterweight to the Board's powers.To that end, along with members of the Aspen Institute Internet Project and the Cyberspace Law Institute, we submitted a proposal to ICANN to implement a "Review Panel" to exercise at least a degree of oversight over ICANN's actions.
ICANN set up an Advisory Committee on Independent Review to consider this proposal (and others) for creating such a review board. The Advisory Committee's draft report adopted many of the suggestions we had made in our proposal. However, there was one major shortcoming in the report. Under "what powers should the Independent Review Panel [IRP] have?" the report stated that the IRP will 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.This was, we felt, deeply problematic. In comments submitted to the Advisory Committee, I wrote that this provision "undercuts, significantly and perhaps fatally, the IRP's ability to perform its limited but critical mission." I recommended 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 also suggested 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. [ See also the Advisory Committee addendum to its report, and my additional comments filed in July 1999].
As of this writing (August 1999) the Advisory Committee has not yet submitted its final report to the ICANN Board and we do not know what the final form of this Review Panel might take.