[CCWG-ACCT] [Ws2-jurisdiction] Question Presented

parminder parminder at itforchange.net
Sun Jun 25 05:02:33 UTC 2017


All

Since I will not be able to attend today f2f meeting I wanted to share
some points.

The main issue for the meeting, in my understanding, is to deal with 
the sudden decision of the CWCG chair about what the sub group should
and should not do. It is clear that this decision has been found faulty
and criticised by majority of participants in the e-discussions here,
even those who otherwise may agree with not pursuing the course that the
Chair unilaterally forbid us from taking. The decision is simply
procedurally wrong, and must be dumped... Among other things, it begun
with the "out of scope" discussion and suddenly became "unlikely to find
consensus" decision -- which are two very different things. Almost
everything is wrong with the manner in which the decision was imposed on
the group.

It is evident that there was a premeditated attempt - I dont know among
or at the behest of whom - to simply gag the jurisdiction discussion,
which happens to be one of the most important topics since the start of
the transition process, and even much before.. It appears that it was
triggered from some nervousness arising out of the responses to the
questionnaire that was sent to the public, where many response spoke of
need for clear institutional changes to the jurisdictional status quo.
The conspiratorial basis of this decision is also highlighted by how in
a single sweep not only the discussions on possible changes to the ICANN
incorporation but the much more "easier to deal with" subject of
tailored immunities for ICANN was banned to be discussed any further.

There has been simply no grounds for this....In any case, it was the sub
group chair's decision that we will come to "remedies" or institutional
changes only after having listed out "issues" that need to be addressed.
The sudden parachuting in of the CCWG chair's decision therefore looks
even more problematic, and smells of something quite not right going on
behind the curtains.

Neither there was enough ground-work done towards reaching this decision
that goes to the very heart of the sub group's work. If there is any
claims of due process in ICANN, we need to simply strike down the
decision, and start anew with whatever concerns there may be that
precipitated this crisis.

The Chair must explain why he made this problematic intervention, and
whether sub group chair had submitted a report that the sub group's work
is not able to be pursued. Strangely, the sub group chair has been
presenting this as entirely the CCWG chair's decision. What did CCWG
learn, from where, and what was his chain of reasoning to make this
decision? Did he hold any closed group or individual consultations? We
must be told what really happened.

Subsequent to the strong reactions to the decision, CCWG chair must
withdraw it, or the CCWG assembly should force it to be withdrawn. It is
wrong in process, and it cannot now be attempted to be corrected
post-facto by admitting some substantive changes. The process itself is
sacrosanct, and must be upheld, independent of the nature of substantive
views in the group.

I suspect that the decision will be attempted to made palatable by
making marginal concessions on it, but that I insist is not the point.
Upholding due process, and resisting abuse of process and power must be
our first and main priority today.

parminder



On Tuesday 20 June 2017 12:46 AM, Mueller, Milton L wrote:
>
> Sorry if I missed the boat, Greg, but I did review the emails on the
> list fairly extensively before commenting, and it sure looked like we
> were having a scope debate rather than a substantive debate. It is
> possible that the initial framing as a scope debate triggered a lot of
> responses and emotions that the overall dialogue never got beyond.
>
>  
>
> One of the problems with framing it as scope is that it lets those who
> want to argue for a change in the jurisdiction/place of incorporation
> off the hook. They can make perfectly reasonable and convincing
> arguments that it is not out of scope, even if they are unable to
> demonstrate a clearly superior alternative to California law that is
> compatible with the WS1 accountability mechanisms.
>
>  
>
> Let’s get out of that rut.
>
>  
>
> I think the subgroup has done more extensive quality work than people
> who are watching it day to day realize.
>
>  
>
> ·         We have clarified the set of problems we face with the layer
> model;
>
> ·         We have reviewed most of the relevant court cases (still
> ongoing);
>
> ·         We have identified specific problems with U.S. jurisdiction
> (OFAC and similar US-imposed sanctions);
>
> ·         We have discussed the US Immunities Act, and with one or two
> exceptions agreed that it would not be a good path to take
>
> ·         We have discovered that those who most want to move it out
> of California cannot name or identify a specific, superior
> location/jurisdiction, but must instead appeal to “international
> jurisdiction,” which means a new international treaty and new
> organizational arrangement that would require re-doing the entire
> transition process.
>
>  
>
> Let’s reach consensus on two simple points:
>
> 1.       There ARE problems of accountability caused by U.S.
> jurisdiction, notably around OFAC sanctions
>
> 2.       There is no reasonable prospect of improvement to come from
> uprooting ICANN, completely changing its legal status and moving to an
> unknown and as yet undeveloped alternative
>
>  
>
> *From:*Greg Shatan [mailto:gregshatanipc at gmail.com]
> *Sent:* Monday, June 19, 2017 12:44 PM
> *To:* John Laprise <jlaprise at gmail.com>; Mueller, Milton L
> <milton at gatech.edu>; ws2-jurisdiction <ws2-jurisdiction at icann.org>
> *Cc:* acct-staff at icann.org
> *Subject:* Re: [Ws2-jurisdiction] Question Presented
>
>  
>
> Milton,
>
>  
>
> I actually agree with you, up to a point.  The slide you refer to was
> a strawman and a jumping-off point for discussion.  By the second
> call, last week, we had moved away from that slide and from discussing
> the issue in terms of scope.  The CCWG Co-Chairs instead framed the
> issue around the question "what will get sufficient traction in the
> group" vs. subjects that will not get sufficient traction, and thus
> would not lead to a consensus recommendation. 
>
>  
>
> However, I don't think this was an instance of anyone preempting a
> discussion, much less dishonestly.  As noted, no issues have been
> foreclosed by the Co-Chair's decision, which is aligned with your
> point #2 -- the "lack of traction" for recommending changes to ICANN's
> corporate status. I hope that everyone is interested in substantive
> debate, and I hope to see plenty of it in this group in the coming weeks.
>
>  
>
> Best regards,
>
>  
>
> Greg
>
>  
>
> On Mon, Jun 19, 2017 at 10:41 AM John Laprise <jlaprise at gmail.com
> <mailto:jlaprise at gmail.com>> wrote:
>
>     +1
>
>      
>
>     Best regards,
>
>      
>
>     John Laprise, Ph.D.
>
>     Principal Consultant
>
>      
>
>     http://www.linkedin.com/in/jplaprise/
>
>      
>
>      
>
>      
>
>     *From:*ws2-jurisdiction-bounces at icann.org
>     <mailto:ws2-jurisdiction-bounces at icann.org>[mailto:ws2-jurisdiction-bounces at icann.org
>     <mailto:ws2-jurisdiction-bounces at icann.org>] *On Behalf Of
>     *Mueller, Milton L
>     *Sent:* Monday, June 19, 2017 9:40 AM
>     *To:* Greg Shatan <gregshatanipc at gmail.com
>     <mailto:gregshatanipc at gmail.com>>; ws2-jurisdiction
>     <ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>>
>     *Cc:* acct-staff at icann.org <mailto:acct-staff at icann.org>
>     *Subject:* Re: [Ws2-jurisdiction] Question Presented
>
>      
>
>     Please pardon my late intervention. We were presented with this
>     question:
>
>      
>
>     *Question: Is considering or recommending changes to ICANN's
>     status as a not-for-profit California corporation within the scope
>     of the Subgroup?*
>
>      
>
>     Two things seem obvious to me:
>
>      1. The issue IS within the intended scope of the subgroup, and
>
>      1. There is overwhelming consensus AGAINST recommending changes
>         to ICANN’s status as a nonprofit California public benefit
>         corporation.
>
>      
>
>     It seems to me that most of the debate is confusing issue #1 with
>     issue #2. The entire discussion has not developed any real
>     alternative, much less a clearly superior one, to California
>     jurisdiction. The identified problems with US jurisdiction (mainly
>     OFAC) can be addressed without moving ICANN’s place of
>     incorporation. So let’s stop trying to dishonestly pre-empt
>     resolution of the jurisdiction issue by ruling certain discussions
>     “out of scope.”  Let’s resolve it honestly by developing and
>     acknowledging consensus around the fact that other than the
>     meaningless mirage of “international jurisdiction” there is no
>     better framework within which to work than California law.
>
>      
>
>     The debate about scope, in other words, is a diversion from the
>     substantive issue, and I wish the chairs and the Americans in the
>     subgroup would stop trying to pre-empt substantive debate with
>     scope debate.
>
>      
>
>     I will not be in Johannesburg so I hope people who agree with me
>     can take this perspective into the f2f meeting.
>
>      
>
>     Dr. Milton L. Mueller
>
>     Professor, School of Public Policy
>
>     Georgia Institute of Technology
>
>      
>
>      
>
>      
>
>      
>
>     *From:*ws2-jurisdiction-bounces at icann.org
>     <mailto:ws2-jurisdiction-bounces at icann.org>[mailto:ws2-jurisdiction-bounces at icann.org]
>     *On Behalf Of *Greg Shatan
>     *Sent:* Thursday, June 8, 2017 9:29 AM
>     *To:* ws2-jurisdiction <ws2-jurisdiction at icann.org
>     <mailto:ws2-jurisdiction at icann.org>>
>     *Cc:* acct-staff at icann.org <mailto:acct-staff at icann.org>
>     *Subject:* [Ws2-jurisdiction] Question Presented
>
>      
>
>     Please see attached.
>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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