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

Tue Dec 27 19:36:02 UTC 2016

Kavouss,

Many alternatives were presented by various members of the subgroup, and I
felt that the most transparent and helpful approach was to bring them all
together for the benefit of the subgroup.  This allows everyone in the
subgroup to see and consider the various alternatives.  Certain
alternatives may emerge as favorites, and then we can winnow down the list,
and hopefully arrive at a set of questions with truly broad support.

Best regards,

Greg

On Tue, Dec 27, 2016 at 7:06 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Grec,
> Tks again,
> As I said I believe ,it is counter productive to discuss many alternative,
> I could agree with formulation of Parminder
> Regards
> Kavouss
>
> 2016-12-27 12:51 GMT+01:00 parminder <parminder at itforchange.net>:
>
>> Greg/ All
>>
>> I think the Alternative 1, which you take as likely candidate for broader
>> support, is fine. I list this formulation below:
>>
>> What are the advantages or disadvantages, if any, relating to ICANN's
>> jurisdiction*, particularly with regard to the actual operation of ICANN’s
>> policies and accountability mechanisms? Please support your response with
>> appropriate examples, references to specific laws, case studies, other
>> studies, and analysis. In particular, please indicate if there are current
>> or past instances that highlight such advantages or problems.
>>
>> (* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being
>> subject to U.S. and California law as a result of its incorporation and
>> location in California, (b) ICANN being subject to the laws of any other
>> country as a result of its location within or contacts with that country,
>> or (c) any “choice of law” or venue provisions in agreements with ICANN.)
>>
>> ENDS
>>
>> Lets move on with it. We are spending too much time on framing a question.
>>
>> parminder
>>
>>
>>
>> On Tuesday 27 December 2016 01:26 PM, Greg Shatan wrote:
>>
>> All:
>>
>> Two quick but important points:
>>
>> 1.  We have strayed from the basic topic in front of us, which is to
>> decide on the formulation of the questions to be sent out.  I have gone
>> through the emails and meeting notes and pulled the alternative
>> formulations and revisions in to a single document, attached to this email.
>>
>>
>> With regard to question 4, I believe that the best way to move forward is
>> to see if one of the alternatives gets stronger support within the CCWG.
>> If we can get to a point where there is broad support for the question
>> without significant opposition that may resolve issues relating to whether
>> and when this question will be sent out.
>>
>> 2.  Our overall agreed-upon working method is to first identify, discuss
>> and arrive at a list of issues that raise concerns, and then move on to
>> identifying, discussing and arriving at a list of potential remedies for
>> each issue on our list.  We are still working on issues.  For a remedy to
>> be up for discussion when we move to discussing remedies, that remedy needs
>> to provide a solution to an  issue.  We can't discuss a potential remedy
>> without having an issue it is intended to solve.  If there is a potential
>> "remedy" but it does not solve any of our issues, we won't discuss it.
>>
>> We've already put aside one potential "remedy" until we see whether we
>> identify any issues it would solve -- the "remedy" of changing ICANN's
>> jurisdiction of incorporation or headquarters location.  "Immunity" is
>> another potential remedy that we need to deal with the same way.  Skipping
>> forward to discussions of remedies is only slowing down our discussion of
>> issues.  I strongly suggest we refocus on issues, so that we can get to the
>> discussion of remedies.  Once we've agreed on a list of issues, a
>> discussion of remedies will be more productive.
>>
>> Our working method of dealing with issues first and then remedies may
>> also help us find agreement on a way to deal with question 4.  Questions
>> 1-3 clearly deal with issues.  Perhaps a version of question 4 that is
>> limited to asking for issues will get broader support ("Alternative 1" on
>> the attachment may fit this description.)
>>
>> Greg
>>
>> On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
>> wrote:
>>
>>> Hello,
>>>
>>> I also don't see the logic in sending two questionnaires. There may be
>>> some logic in treating the responses to questions 1 to 3 separate from
>>> question 4, but we are not yet at that stage. It will be better the
>>> question is not added at all than to send it as a separate questionnaire.
>>>
>>> Overall I am indifferent about adding or not adding but since there is
>>> seemingly a lot of support to add, I don't see the significant harm it will
>>> cause by doing that[1]. Based on the response of the Co-Chairs to my
>>> question, I would suggest that it's better to let all the 4 questions be
>>> presented and let's see what issues emerge from their responses. Then we
>>> can start to do a few round trips to legal and hopefully remind ourselves
>>> the possible consequences of addressing certain issues in a particular way.
>>> Some of which has already been echoed during WS1.
>>>
>>> Regards
>>> 1. Nevermind that it could generate some political news/headlines but am
>>> sure this group is already used to that by now ;-)
>>> Sent from my LG G4
>>> Kindly excuse brevity and typos
>>>
>>> On 26 Dec 2016 19:19, "avri doria" <avri at acm.org> wrote:
>>>
>>>> Hi,
>>>>
>>>> Where we differ is on the idea of separating the questions into 2
>>>> questionnaires.
>>>>
>>>> I think it is going to be hard enough to get people to pay attention to
>>>> one questionnaire, asking them to do two is daunting. A fourth question
>>>> will not test their patience in the same way another questionnaire
>>>> would.
>>>>
>>>> So with Kavouss I say:
>>>>
>>>> > Allow all 4 questions go out and then wait what will happens  .
>>>>
>>>> avri
>>>>
>>>>
>>>> On 26-Dec-16 11:42, Mueller, Milton L wrote:
>>>> >> -----Original Message-----
>>>> >> At the same time, let us all try to return to a constructive and
>>>> step-by-step
>>>> >> approach, building on the progress made so far, in order to make
>>>> progress on
>>>> >> our mandate, established by the whole multistakeholder community
>>>> back in
>>>> >> Marrakech.
>>>> > I agree, and I think both Pedro's and Phil's position are based on
>>>> some confusion of issues. It we calm down a bit and look at this more
>>>> carefully we can make progress.
>>>> >
>>>> > Pedro may be confusing the inclusion or exclusion of Question 4 in
>>>> our initial request with the question of whether we explore issues in US
>>>> jurisdiction at all.  But excluding Question 4 from our initial request for
>>>> information is not the same as a refusal to explore the questions it
>>>> raises. I have proposed _separating_ Q4 from the other 3 questions, not
>>>> eliminating it entirely. I proposed this not because I want to avoid the
>>>> questions Q4 poses, but because I want those questions to be developed
>>>> better and I want to avoid conflating it with the narrower questions about
>>>> dispute resolution that Q's 1-3 were designed to address. It is a mistake
>>>> to put those two things together. The information we gather from Q's 1-3
>>>> will suffer from their attachment to the potentially more controversial
>>>> issues raised by Q4. Let me also add that the divisive insistence that this
>>>> is a matter of US citizens vs non-US citizens needs to be dropped. Avri and
>>>> myself, e.g., are both US citizens/residents and have serious concerns
>>>> about possible intrusions of US foreign policy and other nationalistic and
>>>> governmental concerns into ICANN matters. At the same time we are both
>>>> staunch supporters of a nongovernmental model in this space and have no
>>>> inherent objection to California law as ICANN's basis.
>>>> >
>>>> > Phil Corwin on the other hand is confusing the issue of whether
>>>> ICANN's corporate HQ is in California with the question of whether ICANN
>>>> will be an intergovernmental entity. These questions have very little to do
>>>> with each other. It is of course true that there are still a few people out
>>>> there who would like for ICANN to become intergovernmental, but they are a
>>>> tiny minority and the weight of history is totally against them. Put more
>>>> bluntly, it ain't gonna happen. Supporters of the MS model and opponents of
>>>> intergovernmentalism have legitimate reasons to investigate the impact of
>>>> US jurisdiction, because the US is a global power with very specific
>>>> foreign policy and military interests. US jurisdiction thus may have the
>>>> potential to create opportunities for one government -  the US - to have an
>>>> inappropriate level of influence over ICANN's transnational, nonstate actor
>>>> based governance processes. One can consider those issues without implying
>>>> that ICANN's corporate HQ needs to move.
>>>> >
>>>> > So let's stop making the status of Q4 a proxy for a long-settled war
>>>> over whether ICANN is private or governmental, and let's stop pretending
>>>> that those who want to separate the issues raised by Q4 from the narrower
>>>> more focused issues in Q1-3 are trying to avoid legitimate issues.
>>>> >
>>>> > As for creating a separate CCWG, are you kidding? This is the CCWG
>>>> subgroup created specifically for jurisdictional issues and we don't make
>>>> difficult issues easier to resolve by creating additional structures.
>>>> >
>>>> > Dr. Milton L. Mueller
>>>> > Professor, School of Public Policy
>>>> > Georgia Institute of Technology
>>>> >
>>>> >
>>>> >
>>>> >> In this vein, and consistent with our conversation in Hyderabad, let
>>>> us
>>>> >> continue with the line directed to requesting input from the wider
>>>> community.
>>>> >>
>>>> >> The four questions developed so far will allow us to gather much
>>>> needed input
>>>> >> on facts, examples and well-founded opinions on the influence of
>>>> ICANNs
>>>> >> jurisdiction, taking into account its multiple layers, on its
>>>> operations and
>>>> >> accountability.
>>>> >>
>>>> >> If we all are constructive and accept esch others' views as worthy
>>>> of further
>>>> >> discussion and study, we will be able to get this important step
>>>> further.
>>>> >>
>>>> >> Hence, let us please stay on the right track and finalize
>>>> formulations of all four
>>>> >> questions, and keep up the good spirit of cooperation.
>>>> >>
>>>> >> with my best wishes for you all during the festivities
>>>> >>
>>>> >> kind regards
>>>> >>
>>>> >> Jorge
>>>> >>
>>>> >>
>>>> >> ________________________________
>>>> >>
>>>> >> Von: Pedro Ivo Ferraz da Silva < <pedro.ivo at itamaraty.gov.br>
>>>> pedro.ivo at itamaraty.gov.br>
>>>> >> Datum: 24. Dezember 2016 um 15:53:55 MEZ
>>>> >> An: Greg Shatan < <gregshatanipc at gmail.com>gregshatanipc at gmail.com>,
>>>> parminder
>>>> >> <parminder at itforchange.net>, Kavouss Arasteh
>>>> >> <kavouss.arasteh at gmail.com>
>>>> >> Cc: accountability-cross-community at icann.org <accountability-cross-
>>>> >> community at icann.org>
>>>> >> Betreff: [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 <+55%2061%202030-6609>
>>>> >>
>>>> >> ________________________________
>>>> >> De: 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
>>>> >> 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>
>>>> 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 the recent 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/><
>>>> <http://www.linkedin.com/in/jplapri>http://www.linkedin.com/in/jplapri
>>>> >> se/>http://www.linkedin.com/in/jplaprise/
>>>> >>
>>>> >>
>>>> >>
>>>> >> From: parminder
>>>> >> [<mailto:parminder at itforchange.net>mailto:parminder at itforchange.net]
>>>> >> Sent: Tuesday, December 20, 2016 2:57 AM
>>>> >> To: John Laprise <mailto: <jlaprise at gmail.com>jlaprise at gmail.com>
>>>> >> <jlaprise at gmail.com><mailto:jl <jlaprise at gmail.com>aprise 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>
>>>> 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:accountabili
>>>> ty-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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>>>> ty-Cross-
>>>> >> Community at icann.org>
>>>> >>
>>>> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>> >>
>>>> >>
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>>>> >> Community mailing list Accountability-Cross-
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>>>>
>>>>
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