[CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
avri doria
avri at acm.org
Sun Dec 25 19:54:01 UTC 2016
With all due respect I wonder about an argument that builds on
rhetorical accusations such as bait and switch. We all should know that
there is no way ICANN is moving out of CA, despite those who might like
to see that. Personally I see a greater chance of California seceding
from the US than of the ICANN EC deciding to support an improbable
change in the location of the home office.
Despite that, there may be issues and there may be remedies for those
issues. The fact that some will go to such rhetorical extent to
disallow questions and solution exploration is baffling.
avri
On 24-Dec-16 12:46, Phil Corwin wrote:
>
> Fellow jurisdiction subgroup members:
>
> I am responding as someone who did not fiercely object to completing
> the jurisdiction debate in WS1. Indeed, I publicly wrote in May 2016
> that ICANN’s permanent status as a US-based non-profit corporation
> should be enshrined in a Fundamental Bylaw prior to the completion of
> WS1
> (http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_jurisdiction/
> ):
>
> …even as the transition draws closer, ICANN's continued status as a
> non-profit corporation subject to U.S. law — its jurisdictional locus
> — is rapidly replacing the IANA contract as the new focus for
> displeasure by those who would have ICANN relocate to another
> jurisdiction — or even be transformed into a multilateral
> international intergovernmental organization (IGO), an outcome
> specifically prohibited under NTIA's approval criteria. The resolution
> of this extended debate will have profound ramifications for the
> future viability of the MSM of Internet Governance (IG), as well as
> for Internet speech free from governmental interference exercised from
> the top level of the domain name system (DNS). 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.
>
> …several proposed revisions of ICANN's Bylaws enmesh it more deeply
> within ICANN's framework of California nonprofit business association
> law, and thereby U.S. jurisdiction. At the same time, rather than
> logically and decisively resolving the question of ICANN's permanent
> grounding in U.S. jurisdiction and law, the CCWG-ACCT kicked the can
> down the road by retaining the issue of jurisdiction as a matter to be
> further addressed in WS2, without in any decisive way limiting what
> jurisdictional matters remained to be settled by taking ICANN's own
> jurisdictional locus off the table.
>
> For the sake of legal clarity and organizational stability, it is
> incumbent upon WS2 participants to resolve this matter as soon as
> feasible — and to come down decisively in favor of a permanent link
> between ICANN and U.S. jurisdiction…*It is most unfortunate that WS1
> did not resolve the critical matter of ICANN jurisdiction. The only
> way to ensure that ICANN does not devolve into an IGO is to enshrine
> ICANN's permanent status as a California non-profit in a Fundamental
> Bylaw during the course of WS2. That would not only be consistent with
> one of NTIA's key principles but is the only means to assure that
> business, civil society, and the technical and academic sectors remain
> the stakeholders in charge of the critical root zone functions —
> rather than have them fall under the sway of governments, with all the
> dangers that would accompany a future transition of ICANN's status
> from the MSM to an IGO.*
>
> I restated that position orally at the Helsinki “lightning round”, and
> was instantly called out as someone seeking to initiate upheaval and
> derail the transition. But I believe that my warning is now being
> borne out.
>
> Because now we are seeing the festering sore manifest itself in the
> workings of this subgroup. And the reason there is such substantial
> resistance to reopening the most fundamental jurisdictional matters
> through open-ended, opinion (not fact) seeking questions is not just a
> sense that this is an attempt to stage a huge bait-and-switch for a
> transition the U.S. acquiesced to on the basis of ICANN remaining a
> California non-profit and not becoming an IGO dominated by
> governments, but that it threatens to undo all of the accountability
> measures so carefully developed in WS1. As Thomas, Leon & Mathieu
> stated in their email of December 22^nd :
>
> …the subgroup must keep in mind that having ICANN move its place of
> incorporation materially means dismantling the accountability
> framework of WS1. Indeed, it could mean dismantling ICANN as we know
> it and building a new organization from the ground up, hence the
> difficulty in implementing such a task without huge risks around it.
>
> So far as I am concerned, this subgroup can ask whatever questions it
> wants of anyone it wishes. But let it be clear that any attempt to
> recommend a change in ICANN’s organizational jurisdiction that removes
> it from California legal framework, much less one that seeks to grant
> it jurisdictional immunity akin to that of an IGO, advanced just
> months after the occurrence of the transition and with no intervening
> event or problem justifying exploration of such a radical alteration,
> will be regarded as an attempt to dismantle the accountability
> framework and will be responded to as befits such a fundamental
> threat to all we have achieved.
>
> Happy holidays,
>
> Philip
>
>
>
>
>
>
>
>
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597/Direct*
>
> *202-559-8750/Fax*
>
> *202-255-6172/Cell***
>
> * *
>
> *Twitter: @VlawDC*
>
>
>
> */"Luck is the residue of design" -- Branch Rickey/*
>
>
>
> *From:*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
> Of *Pedro Ivo Ferraz da Silva
> *Sent:* Saturday, December 24, 2016 9:53 AM
> *To:* parminder; Kavouss Arasteh; Greg Shatan
> *Cc:* accountability-cross-community at icann.org
> *Subject:* [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
> Results
>
>
>
> Dear CCWG-colleagues,
>
>
>
> After reading some comments in this email thread, I must admit to be
> really disappointed.
>
>
> Some of our colleagues in the CCWG seem to have forgotten - perhaps on
> purpose - that the topic of jurisdiction was allocated to WS2 as a
> result of a postponement, since the majority of this group thought it
> was not appropriate to deal with it in the pre-transition period due
> to time constraints. My government was not in favor of postponing the
> discussion on jurisdiction, as we consider it was – and remains – a
> fundamental aspect of a new ICANN truly governed by the
> multistakeholder community without any pre-conditions, but in respect
> to the viewpoint of the other colleagues, we agreed to move it to WS2.
>
> Now that time has come to properly deal with this topic, it is quite
> frustrating to notice that some participants insist on limiting
> and/or procrastinating this debate, including by using the absurd
> argument that any discussion around jurisdiction cannot put into
> question any aspect already decided in WS1, which is embedded in the
> California law. We cannot see good faith in that kind of circular
> argument.
>
> In our view, the discussion around the inclusion or exclusion of Q.4
> shows quite clearly that some of those who have fiercely objected to
> any jurisdiction debate during WS1 are maintaining their objection in
> WS2 as well. On that particular topic (Q.4) we concur with the view
> that upon deciding on institutional arrangements we should not only
> consider already occurred cases but also take into account logically
> strong possibilities. The responses to the questionnaire should thus
> help us to deal with all possibilities associate to jurisdiction. In
> case any unsubstantiated opinion will be received, it should be
> summarily discarded.
>
> From the various jurisdiction calls it became quite evident that a
> substantial part of the subgroup - mainly non-US - has great interest
> in examining and debating ways through which we can make sure that any
> issue associated to jurisdiction be addressed in a way compatible
> with the company's international remit of coordinating Internet
> public identifiers. In that context, I would like to highlight my
> government´s understanding that although the proposed questionnaire
> under discussion may provide us with some relevant factual
> information, it does not in any way cover all aspects of interest. We
> would like to refer, for example, to the list of issues compiled by
> Kavouss Arasteh as per his 13 December 2016 e-mail. We would also
> refer to questions that have continuously been asked by Parminder,
> apparently without any satisfactory answer. Those issues and questions
> include, for example, dispute settlement related topics, which
> demonstrates, in our view, that jurisdiction cannot be seen purely
> from businesses´ viewpoint. As someone has stated, we also need to
> look at the relationship between ICANN and third parties and
> adequately consider non-contracted Parties that might be affected by
> ICANN´s acts and/or omissions.
>
> From the perspective of the Brazilian government, the topics raised by
> Kavouss, Parminder and others are issues of particular interest
> which, needless to say, will not be adequately addressed through the
> mere analysis of the answers provided to the questionnaire, whether it
> includes Q.4 or not.
>
> My government has expressed its interest in pursuing discussion on
> jurisdiction through those angles many times – both during the IANA
> transition process and well before that. Other governments have done
> the same, as well as a sound number of civil society organizations
> around the globe. The "NETmundial Multistakeholder Statement", while
> calling for the internationalization of ICANN, clearly expresses this
> as well. Let me emphasize, by the way, that the NETmundial Statement
> calls for ICANN´s internationalization and not for it to become an
> intergovernmental organization. Those are two different notions that
> should not be confounded.
>
> If this subgroup fails to deal with the multidimensional issues
> associated to jurisdiction properly , it may be applauded by some
> segments , but it will not contribute to putting in place a framework
> that will ensure the shared goal of making ICANN a legitimate entity
> in the eyes of all stakeholders, including governments. To achieve
> that, no issues should be discarded as "non important" or "not yet
> verified". While preserving the essence of what was achieved in WS1,
> innovative thinking, including on the part of persons with legal
> expertise, will be needed. Is it worth to wipe an important debate
> under the carpet just to comfort one or a few stakeholder groups while
> discontenting others? What kind of legitimacy is such a biased and
> limited exercise likely to have within the international community? .
>
> It is time the subgroup - including the coChairs - make a honest
> assessment of the various viewpoints related to ICANN's jurisdiction
> and conduct the debate as openly as possible in order to address all
> the concerns and interests behind it.
>
>
>
> Kind regards,
>
>
>
> Sec. Pedro Ivo Ferraz da Silva
>
> Division of Information Society
>
> Ministry of Foreign Affairs - Brazil
>
> T: +55 61 2030-6609
>
>
>
> ------------------------------------------------------------------------
>
> *De:*accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org>
> [accountability-cross-community-bounces at icann.org] em nome de
> parminder [parminder at itforchange.net]
> *Enviado:* quinta-feira, 22 de dezembro de 2016 14:01
> *Para:* Kavouss Arasteh; Greg Shatan
> *Cc:* accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Assunto:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
> Results
>
> Dear Kavouss
>
> You are right, we should first deal with the issue of the questionnaire.
>
> I agree, as do many others, that there is no justification to remove
> the proposed Q 4 from the questionnaire. The question must go out
> along with others.
>
> A question seeking information is only a question seeking information.
> People may chose to not respond to it, or give different responses,
> likely in opposition to one another. That is all very fine, and quite
> expected. But such forceful arguments to not ask for certain kinds of
> information is very disturbing, even alarming. (I have issues with how
> the other questions are framed, but I am fine to let them go out
> because some people want them to be posed.)
>
> Ordinarily, if a good number of participants here wanted a question,
> that should be enough to include it. Here, a majority of those who
> voted on the issue of this particular question wanted the question
> included. That should have conclusively stopped the debate. But no,
> not so. There is persistent effort to censor this question. And this
> in a process that is advertised as open, transparent, collaborative,
> and what not. There is something very basically wrong here.
>
> parminder
>
> On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote:
>
> Dear John.
>
> Dear Parminder,
>
> It is difficult for me to conclude on any solution between the
> lines of your discussion.
>
> Could any of you kindly give a resume of the exchanged views.
>
> We need to look for some compromise solution knowing that some
> hard liners like x and y insist to impose their objections to send
> Q4.I continue to object to all questions until all 4 are agreed
>
> Nothing is agreed untill everything is agreed
>
> this is a Global multistakholder Group discussion and NOT North
> American Sub-Region multistakholder Group dominated by certain
> individuals
>
> Regards
>
> Kavouss
>
>
>
> 2016-12-22 13:06 GMT+01:00 parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>>:
>
>
>
>
>
> On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:
>
> “To turn ones face away and say, nothing can be done here, to
> evolve our democratic international systems, is to vote for a
> status quo which serves some, but not others.”
>
>
>
> Rather, it is an acknowledgement of reality.
>
>
> Apologies for appearing to be flippant, but isnt that what every
> status quo-ist says.
>
> Rule of law is neither globally strong nor evenly distributed. I
> can imagine a world in which the way forward you describe is
> plausible but, regrettably, it is not the one we live in. Other
> systems need strengthening and in some cases even existence before
> the way forward is open. It’s not a vote for the status quo but a
> recognition of path dependency.
>
>
> I am not asking for a violent deviation from the path - both
> options that I propose, a new international law and immunity under
> existing US Act carries forward the path-dependency, and
> completely safeguard the existing structures and processes of
> ICANN, the system I think you allude to as requiring
> strengthening. What I propose in fact further strengthens it, to a
> considerable extent. The ICANN system's current jurisdictional
> oversight by a single country is its biggest weak point in terms
> of international legitimacy. ( A point, unfortunately USians here
> seem not able to see and sympathise with.) Imagine an ICANN with
> immunity from US jurisdiction; how much legitimacy, and thus
> strength, it adds to the system.
>
>
>
>
> Thanks for the back rounder Parminder. It was, along with some
> parallel research, quite helpful.
>
>
> Thanks John, you are welcome.
>
>
> The problem remains however that there is no analogous
> organization to ICANN merely in terms of its contractual authority.
>
>
> Firstly, if we are hoping that a fully-developed, well-rounded
> solution, with everything fully covered by enough exact
> precedents, to this complex but very genuine problem, will simply
> one day drop in our laps, I assure you that this is not going to
> happen. We have to work for it, join the dots, take risks, make
> innovations, and so on. The point is, who is losing and gaining
> what from the present dispensation, and who is willing to do what
> is required to do.
>
> Next, I see that organisations like International Fertilizer and
> Development Centre, which we cited as an example of an NPO given
> jurisdictional immunity, also does run many projects worldwide.
> Any such project would require use of a legal status, entering
> contracts, and so on.... We just need to look into it. But if we
> close our eyes, and simply refuse to explore options, we are not
> going to get anywhere. I am not saying this example will be an
> exact fit for our requirement, but we need to see what is
> possible, and innovate and evolve over it.
>
>
> I’d also add that many of the benefits of the act are at the
> discretion of the US Secretary of State and can be revoked.
>
>
> Yes, which is why immunity under US Act is less sustainable option
> than international law based immunity. But still better than the
> present condition. In therecent civil society statement on
> jurisdiction
> <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>,
> we also suggested a method whereby any such withdrawal of immunity
> can be made difficult/ ineffectual (see option 3 in the end).
>
>
> The proposed jurisdictional immunity would also require all
> governments to sign off on such status, given ICANN’s reach.
>
>
> I dont see why so. Only US gov needs to agree.
>
>
>
> I know that there is a significant literature on international
> compacts and law. Given the often decades long time frames for the
> passage and acceptance of such law, the Internet as we know it is
> unlikely to exist by the time it comes into force.
>
>
> These are weak excuses. It can be done in 6 months. But in any
> case, if it satisfies those who want to move towards international
> jurisdiction, what do you lose in allowing to set in motion the
> process, esp if you think it would take forever to do anything.
> Let those who want have it. In the interim, status quo would stay.
>
>
>
>
> To your question about why we do not discuss jurisdictional
> immunity under US law: it is because the domestic political
> reality of the situation makes such an eventuality so remote as to
> be hypothetical.
>
>
> The same domestic situation makes the continuation of ICANN under
> US jurisdiction even less tenable.
>
> This brings me to a very important point: the job of CCWG, working
> on behalf of the global community, is not to second guess what US
> gov will accept or not (unfortunately, that is what it has mostly
> done). If this was its real task, we as well may let US gov do
> what it may, instead of providing them the cover of legitimacy of
> the supposed will of the so called 'global community' which is
> what this process does. Our job is to recommend what we think in
> is best global interest, and is ordinarily plausible to do. This
> is what our job is, and we must just do that. Let US gov do its
> job - accept our recs or not. That burden is upon them - let s not
> take up their burden. This aspect of the work of the "community"
> groups involved in the transition process has always greatly
> bothered me. We must have clarity about - on whose behalf are we
> working (i think, for the global community, but you can clarify)
> and what our recs must be based on (I think, on our understanding
> of what is best for the global community, and not what we think US
> gov likes and would agree to, and what not, but again you can clarify)
>
>
>
>
> The described quest is admirable but IMO is a non-starter.
> Conditions do not exist presently to make it a possible.
>
>
> We are part of once in decades constitutional process about
> ICANN's structures. If it is not now, it is never.
>
>
> parminder
>
>
>
> Best regards,
>
>
>
> John Laprise, Ph.D.
>
> Consulting Scholar
>
>
>
> http://www.linkedin.com/in/jplaprise/
>
>
>
>
>
>
>
> *From:* parminder [mailto:parminder at itforchange.net]
> *Sent:* Tuesday, December 20, 2016 2:57 AM
> *To:* John Laprise <jlaprise at gmail.com>
> <mailto:jlaprise at gmail.com>;
> accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and
> Poll Results
>
>
>
> On Monday 19 December 2016 08:14 PM, John Laprise wrote:
>
> Possibilities of jurisdictional immunity? Could you please
> provide examples of organizations that enjoy such.
>
>
> John
> The most well known case of jurisdictional immunity is of course
> for organisations incorporated under international law. Unlike
> what has been argued here variously, although international law
> has to be made by governments through treaties etc that says
> nothing about the actual governance structure of the concerned
> organisation, ICANN in this case. International law can, to take
> an extreme case, hand over complete governance of a body created/
> incorporated under international law to you and me... Nothing
> circumscribes how international law is written as long as all
> countries agree to it. It is entirely possible, and I think
> extremely plausible, that they would agree to write in such law
> the exact governance structure of ICANN as it is at present. Right
> now too, ICANN exists by and under the strength of its law of
> incorporation which is US law. In the scenario I present, it would
> just be international law instead of US law. Yes, there are
> matters to worked out in this regard, but if democracy and
> self-determination of all people, equally, is of any importance at
> all, we can go through the process, including doing the needed
> innovations as needed. The current international system was not
> handed over to us by God, it was evolved by people like us, who
> responded appropriately to newer and newer global challenges, as
> the one that faces us now. To turn ones face away and say, nothing
> can be done here, to evolve our democratic international systems,
> is to vote for a status quo which serves some, but not others. And
> these are the others that are protesting here, and seeking
> appropriate change. It is a political issue, lets not treat it as
> a technical issue, of what is argued to be difficult or too
> "troublesome" to pursue.
>
> Next, even without going the international law route, as has been
> said many times earlier here, US law allows even non profits to be
> given jurisdictional immunity. The concerned law is the _United
> States International Organisations Immunities Act
> <https://archive.icann.org/en/psc/annex9.pdf>_. And an example of
> a US non-profit being given jurisdiction immunity under it
> is/International Fertilizer and Development Center. /This has been
> discussed in a report commissioned by ICANN itself which can be
> found at https://archive.icann.org/en/psc/corell-24aug06.html .
>
> I have been unable to understand why can we not agree to even
> jurisdictional immunity under existing US law, which keeps ICANN
> in the US, preserves its existing structures, and does go
> considerable way to address the concerns about those who are
> concerned about application of US public law on ICANN, and what it
> may mean for its global governance work.
>
> The argument is advanced that this may affect the operation of the
> newly instituted community accountability mechanism. I dont think
> this is not true. This mechanism is a matter of internal ICANN
> governance system, which is a 'private' arrangement with choice of
> law available to it. It simply has to be put in ICANN bylaws that
> ICANN governance processes will be subject to adjudication by
> Californian courts as present. That should do. Of course the
> mentioned International Fertilizer and Development Centre also
> must be existing with some governance systems, that admit of
> external adjudication, even as it enjoys the benefit of
> jurisdictional immunity from US public laws. Such immunity always
> only pertains to the policy and such international core activities
> of the concerned organisation, and associated matters. It would
> not, for instance, extend to actual crime being committed by its
> personnel on its premises. All such matters of various
> distinctions get taken care of when we enter the actual processes
> of such immunities etc. Right now, the issue is only to decide to
> go down the route, or not.
>
> parminder
>
>
>
> Best regards,
>
>
>
> John Laprise, Ph.D.
>
> Consulting Scholar
>
>
>
> http://www.linkedin.com/in/jplaprise/
>
>
>
>
>
>
>
> *From:* accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org>
> [mailto:accountability-cross-community-bounces at icann.org] *On
> Behalf Of *parminder
> *Sent:* Monday, December 19, 2016 7:10 AM
> *To:* accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and
> Poll Results
>
>
>
>
>
>
>
> On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:
>
> SNIP
>
> John Laprise's wording was much, much better:
>
> "What are the advantages or disadvantages, if any,
> relating to changing ICANN’s jurisdiction*, particularly
> with regard to the actual operation of ICANN’s policies
> and accountability mechanisms?"
>
>
> This formulation does not include possibilities of
> jurisdictional immunity.
>
> Something like
>
>
> "What are the advantages or disadvantages, if any, relating to
> changing ICANN’s jurisdiction*, */or providing possible
> jurisdictional immunity,/* particularly with regard to the
> actual operation of ICANN’s policies and accountability
> mechanisms?"
>
>
> would be better.
>
> parminder
>
>
>
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>
>
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