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

[parminder]

I have made clear that at this stage it is the process of making this
wrongful intervention and not its substance that is to be the focus. But
since there were some proposals to accept the "we wont talk about
changes in ICANN incorporation" part of the decision and move on, let me
make some comments on this substantive part. 

A lot of people in this group turn up their noses at any discussion on
the problems with ICANN being a US non profit while it does an important
global governance role. Many try to make it look like as if they have
never known any serious actors interested in this discussion, and allege
that it all coming from fringe radical elements without anything better
to do.

Some history may be worth revisting in this regard. At the WSIS,
everyone knew ICANN's US incorporation as one of the biggest issues
around. That was 12 -14 years ago, and the issues has only become more
salient since. So, please, whatever be your views on the issue, please
do not deny that this one has been the single biggest political issue
around ICANN ever since it was born (those attempts to take the process
to Geneva and all!).

Lets fast forward. When the Snowden moment happened, even the so very
politically conservative "technical community", which included the
ICANN, itself called for "accelerating the globalization
of  and  functions, towards an environment in which all stakeholders,
including all governments, participate on an equal footing." (Montevideo
statement <https://www.icann.org/news/announcement-2013-10-07-en>)

Have we forgotten that, or accept that it was a dishonest statement, in
a moment of existential fear! Is it being claimed that with
globalisation of IANA and ICANN, withdrawal of NTIA's IANA role alone
was meant, and nothing else. I want to hear someone say that, however
untenable it is. And is it being claimed that "all governments" (that
emphasis is clear in the above statement) today participate in the DNS
system on an equal footing? It is being denied that the US jurisdiction
over ICANN puts the US state's power over ICANN at an entirely different
level than of any other government, as was made evident during sub
group's discussions and many responses to the questionnaire?

The Montevideo statement reaffirmed the call of Tunis Agenda that all
government that "all governments should have an equal role and
responsibility for international Internet governance."

The ICANN co sponsored netmundial conference and statement, to which
many here often adhere closely, declared that "It is expected that the
process of globalization of ICANN speeds up leading to a truly
international and global organization serving the public interest."

Is it being claimed that all these statements and promises went not at
all beyond withdrawal of NTIA's IANA role? Lets be a little more honest
to our own past statements.

US jurisdiction over ICANN was and will remain a central issue about
ICANN's legitimacy and accountability. It is evident from its long
history and solid entrenchment as described above that this is not a
kind of issue about which the CCWG chair can simply land announced one
day and unilaterally declare a gag. No, this issue just does not being
to that kind of a level.

Whatever the final recommendations, this issue must be discussed
thoroughly, and various strong views on it recorded in the final report.
This was always a central mandate of this group, and the CCWG chair
cannot unilaterally rewrite the mandate.

If indeed the group seeks to come to a conclusion that, important while
the incorporation issue is, and there being multiple global statements
on it, we find the ICANN community simply not mature to consider this
big political issue internally by itself (as in CCWG 1 it was found that
the community is not mature enough to have a membership based ICANN),
then let it be recorded in that many words. Including that we want
other, "higher" forums, to discuss and decide this for us

I wont accept this key issue to be dismissed through a simple procedural
manoeuvre. It just does not belong to that level.

In sum, I would *not* agree to go with those who are now ready to take
the ICANN incorporation issue off the table, if tailored immunity
discussions are allowed. (I must mention that I consider the latter
option a very important one, and have been arguing for it for many
months.) Yes, I do not expect this group to make a consensus
recommendation on changing ICANN's incorporation/ jurisdiction, but the
issue needs discussion and its various elements must be recorded and
reported, in the final report.

It is too convenient for the chair to peremptorily conclude that there
is unlikely to be a consensus agreement to change ICANN's incorporation.
But then it is also a fact that there is no consensus that the current
status quo is acceptable. This especially comes storngly in the
questionaire responses. Why dont we record that particular absence of
consensus about the appropriate of current jurisdictional status quo,
rather then the favoured ones.

parminder


On Sunday 25 June 2017 10:32 AM, parminder wrote:
>
> 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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