[CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Sam Lanfranco sam at lanfranco.net
Sat Dec 24 20:22:30 UTC 2016


Colleagues,

This is a short attempt is my last effort to get to the essence of the 
jurisdiction issue, an issue that is both complex and contentious. There 
are two views at play here. I will try to capture them in simple terms, 
without repeating the arguments supporting either position.

One is that jurisdiction is such a hot button issue that, as Philip 
Corwin argues, raising it as a major issue in its own right would 
“…further inflame a debate that cannot end in consensus agreement, as 
there is a fundamental incompatibility between altering ICANN’s status 
as California non-profit and effectively exercising the empowered 
community accountability powers that accompanied the IANA transition and 
were designed to operate within that specific legal framework.” . The 
other view, stated by Pedro Ivo Ferraz da Silva, is that the topic of 
jurisdiction was postponed by the CCWG because “the majority of this 
group thought it was not appropriate to deal with it in the 
pre-transition period due to time constraints”, and I might add because 
it is both complex and contentious.

Had the issues not been complex and contentious, either (a) something 
like Philip Corwin’s push for “ICANN’s permanent status as a US-based 
non-profit corporation…enshrined in a Fundamental Bylaw prior to the 
completion of WS1” would be up for discussion, or (b) the NETmundial 
call for “…ICANN’s internationalization and not becoming an 
intergovernmental organization” would have built some options based on 
seeking answers to a list of relevant jurisdiction questions. At this 
point we would have some progress on what, in the longer term, is the 
way forward. None of that has happened.

As well, I agree with the view is that “Until this matter is resolved 
with finality it will remain a scab to be constantly picked at, always 
threatening to become a festering sore on the body politic of IG”. 
Philip Corwin and others worry about the downside risks to any rash 
attempt to recommend a change in ICANN’s organizational jurisdiction. 
Others see the act of not addressing it as a partisan effort to “sweep 
the issue under the rug” and maintain a self-interested status quo. In 
the absence of a proper discussion around this issue the “festering 
sore” will remain. Stakeholders will be embroiled in ill framed disputes 
that inflame positions, and do not lead to better insights on how 
ICANN’s residence and jurisdiction issues are addressed. Without 
dialogue even the status quo will become an increasingly untenable 
position.

My view is that current CCWG discussion should include discussion about 
where and how that jurisdiction discussion should occur. The 
jurisdiction issue is a challenge, an exciting opportunity for ICANN to 
pioneer new ground, and more broadly an opportunity to further refine 
global multistakeholder engagement in bottom-up policy making. In terms 
of ICANN’s decision making speed this will require a longer time frame 
than that for the current CCWG on Accountability, although advice on how 
to this discussion should be constituted is a legitimate agenda item for 
the current Accountability CCWG.

Sam Lanfranco  npoc/csih




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