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The standing requirement ("materially affected") is too restrictive

  • To: comments-irp-supp-procedures-28nov16@xxxxxxxxx
  • Subject: The standing requirement ("materially affected") is too restrictive
  • From: Karl Auerbach <karl@xxxxxxxxxxxx>
  • Date: Fri, 2 Dec 2016 07:43:00 -0800

The standing requirement that one be " materially affected" is excessively legalistic and narrow.

ICANN exists to serve the community of internet users. Many ICANN policies affect huge numbers of people - the number is measured in the millions if we encompass only domain name registrants and exclude those who are merely affected less directly.

The "materially affected" limitation adopted from United States court practices. The rational for those court practices does not apply to ICANN.

The "materially affected" standard ought not to apply to questions raised by a member of the public about an act of ICANN, an entity whose very existence is premised on benefiting the public interest.

The proposed "materially affected" standing limit will further empower those who have financial interests in matters regulated by ICANN and correspondingly disempower those who merely suffer, en masse, a shared harm that is difficult to measure on an individual basis.

The foundation for standing should be broadened to recognize several factors. At a minimum it should encompass any person who uses a domain name, IP address, or IANA protocol parameter. At a minimum it should encompass any person or entity listed in any "whois" entry. It ought to encompass any person or entity that constitutes the "public" as construed by the California law of "public benefit" corporations under which ICANN has obtained its legal existence. Ideally, as has been said "the internet is for everyone", and thus "everyone" ought to have standing to complain when ICANN goes awry.

            Karl Auerbach
(Former publicly elected member of the ICANN Board of Directors for North America)

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