Minutes | Meeting of the Board Accountability Mechanisms Committee (BAMC) | 28 August 2023

BAMC Attendees: Alan Barrett, Becky Burr, Sarah Deutsch, Patricio Poblete, and Katrina Sataki

BAMC Member Apologies: Edmon Chung and León Sánchez (Chair)

ICANN organization Attendees: Franco Carrasco (Board Operations Manager), Samantha Eisner (Deputy General Counsel), Casandra Furey (Associate General Counsel), John Jeffrey (General Counsel and Secretary), Elizabeth Le (Associate General Counsel), and Amy Stathos (Deputy General Counsel)

The following is a summary of discussions, actions taken and actions identified:

1. Agenda review – The Chair reviewed the agenda for the meeting.

2. Procedural Evaluation of Reconsideration Request 23-1 – The Committee received a briefing and materials about Reconsideration Request 23-1 (Request 23-1) submitted by Michael Palage (Requestor), challenging certain aspects of the renewal of the .NET Registry Agreement (.NET RA Renewal). Specifically, the Requestor alleges that the .NET RA Renewal is contrary to the provisions of ICANN Amended Articles of Incorporation Sections 2.II and 2.III and ICANN Bylaws Article 1, Section 1.2 because: (i) a 2006 settlement agreement between ICANN and Verisign, Inc. (Verisign Settlement Agreement) limits Verisign Inc.'s (Verisign) ability to support efforts that may undermine ICANN's role as the technical coordinator of the Domain Name System (DNS); (ii) the .NET RA Renewal exempts Verisign from certain provisions in the base registry agreement (Base RA) regarding participation in economic studies; (iii) the .NET RA Renewal continues to incorporate its own version of the Registry Services Evaluation Policy (RSEP) that is not as expansive as the RSEP consensus policy incorporated by reference in the Base RA; (iv) the .NET RA Renewal allows Verisign to remain exempt from the Registry Services Technical Evaluation Panel (RSTEP) fee without sufficient explanation; and (v) Verisign is permitted preferential access to ICANN staff to discuss policy related issues. Article 4, Section 4.2(k) of the ICANN Bylaws provides that upon receipt of a reconsideration request, the BAMC is to review the request "to determine if it is sufficiently stated." In evaluating whether a reconsideration request is sufficiently stated, the following factors are considered: (1) is the reconsideration request timely; and (2) does the requestor meet the requirements for bringing a reconsideration request. A request that is not sufficiently stated cannot withstand reconsideration and will be summarily dismissed.  A substantive review of the merits of the Requestor's claims is beyond the scope of the BAMC's procedural evaluation.

   As a preliminary matter, the Committee noted that it is unable to review Request 23-1 in its entirety as submitted because Request 23-1 incorporates privileged and confidential information that was provided to the Requestor, in confidence, during the time he owed fiduciary obligations to ICANN in connection with his service on the ICANN Board. Upon receipt of Request 23-1, ICANN advised the Requestor that he does not have the authority to disclose the privileged and confidential information included with his request, that the BAMC can only consider reconsideration requests "on the basis of the public record," and that ICANN cannot publish the privileged and confidential information. For those reasons, ICANN asked the Requestor to withdraw Request 23-1, however, the Requestor declined to do so. ICANN then prepared a redacted version of Request 23-1 that maintains the privileged and confidential nature of certain materials and information submitted by the Requestor and that can be publicly posted and considered by the BAMC.  Accordingly, pursuant to Article 2, Section 4.2(p) of the ICANN Bylaws, the BAMC's evaluation is of Request 23-1 is limited to the redacted version of Request 23-1.

   The BAMC found that Request 23-1 is not sufficiently stated because it does not sufficiently allege that the Requestor has been materially harmed and adversely affected by a challenged ICANN action that allegedly violated a Bylaws provision or established ICANN policy.  To be "adversely affected" by the challenged action or inaction, the Requestor must have suffered an actual injury from the challenged conduct in order to have standing to bring a reconsideration request. The BAMC determined that the Requestor has not demonstrated that he has suffered an actual injury with regards to the aspects that he challenges related to the .NET RA Renewal. The BAMC noted that although the Requestor posits he might be harmed in the future by the conduct being challenged in Request 23-1, speculation about any such future harm is not "directly and causally connected to the alleged violation" at issue and therefore, cannot maintain a reconsideration request.

   • Actions: ICANN org to facilitate revisions to the materials per the BAMC's discussion and to circulate the updated document for the Committee's consideration.

3. Discussion re IRP Standing Panel Selection – The Committee received a status update on the work to establish the IRP Standing Panel. ICANN org reported that it is working towards finalizing a document to present to the BAMC to formalize a recommendation for the full Board's consideration.

   • Action: ICANN org to prepare relevant materials for BAMC's consideration.

4. Update on IRP Implementation Oversight Team (IRP-IOT) – The Committee received a status update on the work of IRP-IOT.

5. Litigation Update – The Committee received a litigation update.