The law firm representing ICM Registry in its pioneering Independent Review of the ICANN decision on the .xxx top level domain has issued a call for ICANN to wait until the process is concluded and the community can assess the results before making any changes to the Independent Review Process.
In an important release that seems to have been swallowed up by the Thanksgiving holiday in the U.S., the Crowell-Moring law firm noted that “the IRP (Independent Review Process) between ICM and ICANN was the first, and to-date the only, opportunity to test the functionality of the rules governing the IRP.” They noted that ICANN’s own lawyers said that they were “grateful for the opportunity to test the process, and invited the Panel to provide ICANN with comments and advice regarding the functionality and benefits of the IRP.” The statement suggests that ICANN should wait for the panelists’ decision, which will come some time in the next couple of months, before making any changes. It also asks ICANN to “seek additional expert advice and consult with the broader ICANN community regarding reforms to the IRP.” The proposed reforms to the IRP emerged from previous ICANN CEO Paul Twomey’s Presidential Strategy Committee.
We think these are reasonable requests. Accountability is one of the most important concerns regarding ICANN’s future, and the IRP is one of the few external accountability mechanisms available for ICANN. It makes sense, therefore, for the broader ICANN community to assess the results of the .xxx appeal and to hear what the independent panelists think about the procedural and substantive aspects of the case before making any modifications. Changing the IRP before one can take into account the only experience we have with it is like modifying the design of an airplane before it has gone on its first test flight.
Disclosure: I was an expert witness for ICM Registry in the current IRP process. But I have no idea how that case will turn out, and my expert testimony in that case is unrelated to the simple logic that we should not modify the IRP before we know the results – whatever they are – in this case.