[CCWG-ACCT] community and jurisdiction was re: Notes-Recordings-T...

Avri Doria avri at acm.org
Sun Apr 5 14:52:45 UTC 2015


On 05-Apr-15 10:03, Carlos Raúl Gutiérrez wrote:
> Dear Avri,
> se my question inline please
> Carlos Raúl Gutiérrez
> _____________________
>> On Apr 5, 2015, at 7:39 AM, Avri Doria <avri at acm.org
>> <mailto:avri at acm.org>> wrote:
>> Hi,
>> From my participant point of view, 
>> On Community:
>> I believe that community and the AC/SO community are nearly
>> coincident, in an asymptotic way.  In the case where they are not,
>> it  is mostly due, in my opinion, to inadequate outreach and
>> engagement.  Governments are included, can, and do, participate in
>> the processes.  Hopefuly more countries will engage earlier in the
>> process all the time. The users are represented in a network of local
>> user organizations. There should be more of these all the time and
>> they should become more engaged in the process. The commercial
>> interests are engaged in many ways, and I expect in more ways all the
>> time. And various special interests like security and stability of
>> the Internet and rights on the Internet are also represented to
>> varying degrees among the AC/SO.  
> I don’t feel confident by your equation of community = AC/SO, even
> under the asymptotic conditions (in the long term we are all dead,
> Keynes used to say). AC/SO are structured differently internally.
> While there may be an analogy between the "geographic coverage”
> objectives of ALACA, GAC and ccNSO, their internal composition
> couldn’t be more varied. The same for the internal composition of the
> GNSO. Can the GNSO speak authoritatively for all its constituencies at
> the community level? We see symptoms of those internal differences in
> the definition of consensus for example. And Parmider already notices
> some cross representation of certain loosely defined groups.

That is another reason that I believe the that broad open comment in
multiple scripts and languages is critical. 

I am personally not bothered by each organization finding its own
bottom-up way to its own notion of representativity and consensus.  I
also believe that the mesh organizational structure that ICANN has with
its SO/AC, where one community axis works on solutions in a single
topic, and the other community works on advice concerning all the cross
cutting issues, does lead to a wider consensus. This despite the
different ways of identifying that consensus within the groups. 
Everything does not need to the same to be equivalent.

>> An additional piece of this community involvement, since the AC/SO
>> can never reach everyone, relies on the fully open comment periods
>> that all policy goes through.  Everyone is periodically requested to
>> comment on the problems before they are worked on, and on the
>> solutions while they are still drafts and after they are proposed to
>> the Board.  More and more these requests for comment are released in
>> multiple scripts and languages.
>> On Jurisdiction:
>> I agree that this is a basic topic that still needs to be covered.  I
>> believe it is about making sure that any of the stakeholders has a
>> chance to argue their case in a jurisdictionally appropriate venue.
>> For States and IGOs, that is not generally the US court system. A
>> solution for this does seem to be a necessary part of any
>> accountability solution.
>> avri
>> On 05-Apr-15 01:25, parminder wrote:
>>> Hi All
>>> I am unable to attend the legal team meeting on the 8th, but will be
>>> grateful if the meaning of the term 'community' is sorted out, and
>>> if needed legal advice taken. It is especially important because the
>>> any final proposal should address the intention of the original NTIA
>>> declaration to transition its current functions to the 'global
>>> multistakeholder community' , which to me appears to refer to global
>>> public (although, in my view, in an inadequate manner). If ICANN's
>>> enhanced accountability to its SOs and ASs - or the 'community'
>>> engaged with names and numbers functions - is to be taken to be
>>> meeting the needs of transitioning NTIA's role to the 'global
>>> multistakeholder community' or the 'global public', the logic has to
>>> be established and explained. I am right now unable to see the logic. 
>>> Also, the jurisdiction question remains basic. If one prefers
>>> concrete examples rather than a larger political discussion: I think
>>> it would be universal knowledge that as per the applicable US
>>> sanctions, no party or company based in Crimea - and I think also
>>> Iran and Sudan - can legally apply for a gTLD from ICANN. Tomorrow,
>>> God forbid, it could be Russia,Venezuela, India, or China, and much
>>> more easily a number of smaller nations. Is such a situation
>>> tenable? I understand that a number of stress tests are going to be
>>> made on any final proposal. Has the contingency of US sanctions on
>>> different times on different countries, which if fully
>>> enforced would prohibit any US entity to do any kind of business
>>> with those countries, taken into account as one stress test? If not,
>>> please do include. It is one of the most important stress
>>> situations. It is easy to see that any final proposal that keeps
>>> ICANN within US jurisdiction will fail this very real stress test.
>>> The only solution is an international jurisdiction for ICANN - but
>>> certainly immunity from the jurisdiction of the one country which
>>> most frequently imposes sanctions and on most number of countries.
>>> This is not a tirade against the US, which has many good points to
>>> be said about it, it is simply a fact that cannot be refused to be
>>> faced.
>>> parminder
>>> On Friday 03 April 2015 02:37 PM, parminder wrote:
>>>> Dear All,
>>>> I request one clarification, and permission to make one comment.
>>>> I hear the term 'community' a lot in these discussions, including
>>>> in the below mentioned notes/ transcript document. The term has
>>>> been used to imply something that is supposed to be able to have
>>>> agency and can perform clear tasks - for instance, of recalling
>>>> ICANN board members, and possibly appointing members of the appeals
>>>> and review teams. We also see the use of the term 'community
>>>> mechanism'. At some point it appears that this community is
>>>> basically the SOs and ACs (Icann's supporting organisations and
>>>> advisory committees) . Obvious greater precision is required about
>>>> the specific legal/ political meaning of the term 'community' as
>>>> used in these documents/ discussions, especially since what is
>>>> being attempted here is a new institutional mechanism of global
>>>> importance. Inter alia, I will like to know if this community is
>>>> the same as the 'global multistakeholder community' (itself a very
>>>> uncles term) mentioned in the original NTIA statement on IANA
>>>> transition. Finally, when we are looking at enhancing
>>>> accountability of ICANN, is it accountability to global public, or
>>>> to some specific community, and if the latter, how is it defined.
>>>> One would think that is the foremost and primary question to be
>>>> sorted out, and made clear, beforehand, on the basis on which an
>>>> accountability mechanism can be built. 
>>>> The comment that I wish to make is about the discussions on the
>>>> issue of 'jurisdiction' . 
>>>> At many or most points, I see 'jurisdiction' seen as merely an
>>>> enabling framework, spoke of as a somewhat technical -  'neutral'
>>>> and more or less given - construct, that enables Internet's
>>>> technical and operational management to take place. As a body of
>>>> some kind of ideal standard private law that supports and enable
>>>> private contracts. Now, firstly, a 'jurisdiction' - even in its
>>>> bare minimum private transactions enabling aspect - is never a
>>>> neutral and static thing, and it can and does change as per
>>>> political understanding and priorities of a political community.
>>>> The even more important point is that any jurisdiction constitutes
>>>> a public accountability mechanism, especially by means of its
>>>> public law. The law incorporates the political priorities of the
>>>> corresponding political community (country) and through the backing
>>>> of coercive force extracts accountability from all people and
>>>> institutions subject to that jurisdiction, as currently US law
>>>> extracts public accountability from ICANN as a UN non-profit.  
>>>> Jurisdiction is therefore directly related to public
>>>> accountability, and cannot be a minor sub point in the discussion.
>>>> Lines of thinking like expressed in a conclusions part below as
>>>> ' topic of jurisdiction comes into scope when a requirement we have
>>>> for accountability cannot be achieved within California
>>>> jurisdiction ' therefore worries me a lot. Further, it is not only
>>>> a question of whom a jurisdiction (here, the US) responds to, but
>>>> the prior question is which political community forms and informs a
>>>> jurisdiction (here the US people). I therefore cannot see how the
>>>> issue of ICANN's accountability to the global public can be
>>>> addressed without making it subject to international law, and
>>>> making it immune to the laws of the country of its physical
>>>> presence. That remains the primary question and issue with regard
>>>> to ICANN's accountability. 
>>>> Lastly, as a global group, presumably working on the behalf of the
>>>> global public, this WG and other similar ones need to come up with
>>>> a solution and institutional mechanism which best serves the
>>>> interests of the global public. It need not be second guessing what
>>>> would be ok with the US government and what not - that is for the
>>>> US government to think. After all, this processes merely provides
>>>> the recommendation for the best model, the final decision is still
>>>> US government's to make. One can still stick to the five conditions
>>>> set by the US government to making the oversight transition, and
>>>> recommend incorporation of ICANN under international law with host
>>>> country immunity. Subjecting ICANN to the jurisdiction of
>>>> international law is the first and the basic question in terms of
>>>> its global accountability. Rest will rather more easily fall in
>>>> place once we have decided on this all-important matter.
>>>> parminder
>>>> (www.ITforChange.net) 

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