[CCWG-ACCT] [Ws2-jurisdiction] Jurisdiction Subgroup. Draft Report. Statement of Brazil. Annex. To be annexed to the draft report. For consideration by the CCWG.

Tue Oct 17 18:11:58 UTC 2017

You are, of course, free to try and redefine consensus as you might wish -
but that is not really for you or anyone other than the CCWG and its charter
to do.

By any reasonable definition of consensus, there is consensus on this report
in two regards:  First, there is general consensus that your views and those
of Brazil are not to be adopted.  Second there is general consensus (from
which you may or may not dissent) that the two recommendations put forward
should be adopted.

You are, of course, free to join any part of that consensus or, as you seem
to have, choose to dissent from the second consensus because of the failure
to adopt your view as to the first.  Neither decision obscures the fact that
the overwhelming majority of the subgroup support both the propositions
stated.

Paul

Paul Rosenzweig

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paul.rosenzweig at redbranchconsulting.com

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From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Tuesday, October 17, 2017 9:33 AM
To: Mueller, Milton L <milton at gatech.edu>; Thiago Braz Jardim Oliveira
<thiago.jardim at itamaraty.gov.br>; accountability-cross-community at icann.org
Cc: acct-staff at icann.org; gac at icann.org; GAC <gac at gac.icann.org>;
ws2-jurisdiction <ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Jurisdiction Subgroup. Draft Report.
Statement of Brazil. Annex. To be annexed to the draft report. For
consideration by the CCWG.

On Monday 16 October 2017 11:18 PM, Mueller, Milton L wrote:

By the way, after additional review of these "dissenting" materials I have
come up with an interesting finding: none of them actually disagree with the
recommendations we did come up with, and neither of them disputes that there
is consensus for the actual recommendations. They simply say that the
recommendations are not enough for them. 

This is a wrong reading of what is a consensus. Consensus relates to a whole
set of recs, and the whole report, not parts of it. One may not otherwise
disagree, for instance, with a particular motherhood and apple pie statement
(they are meant not be disagreed with), but disagree with it constituting
the whole of recs or the report of a group. That would still be an absence
of consensus for that statement to be the rec of that group.  (Those who are
involved with the Working Group on Enhanced Cooperation will know how its
final stages to develop a report suffers from a similar dilemma.)

 A report is as significant in terms of what it does not say as what it
says...... If there is no consensus on changing the status quo, there isnt
one on keeping it either. And the dissonance is so very significant that
some members would want to dissociate from some weak formulations that have
been compiled as agreed outcomes of the group, which simply do not address
key issues of the mandate given to the group. 

Let me try to explain it another way. Lets say that there has been a great
humanitarian crisis owing to human/ political reasons and a committee is
formed to report on its facts and the required action by the world
community. If some members try to develop a report that greatly
under-reports the nature and extent of the calamity (as is done in this
jurisdiction sub group's report regarding facts of the many very significant
problems about continued US jurisdiction over a key global governance
function) and comes up with some very weak mitigating measures, like saying
that for the next many weeks free water supplies should to maintained for
the whole area, others members may dissent with that report, without
necessarily being against the "water supply" part.... They are apt to
disassociate from and condemn the whole report, doing which would certainly
be a meaningful exercise, in putting emphasis on what the committee was
abdicating from rather than what it was recommending. Similar is the
situation with our dissent notes with respect to the jurisdiction
sub-group's report..

parminder 

So what the dissent is about, really, is that they could not achieve
consensus on their own position regarding a much broader take on
jurisdiction and immunity. And yet we all know that their position could
never achieve consensus. So their disputing the consensus basis of this
report amounts to a block what most of us could agree on 

From: ws2-jurisdiction-bounces at icann.org
<mailto:ws2-jurisdiction-bounces at icann.org>
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Monday, October 16, 2017 3:40 AM
To: Thiago Braz Jardim Oliveira  <mailto:thiago.jardim at itamaraty.gov.br>
<thiago.jardim at itamaraty.gov.br>; accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> 
Cc: acct-staff at icann.org <mailto:acct-staff at icann.org> ; gac at icann.org
<mailto:gac at icann.org> ; GAC  <mailto:gac at gac.icann.org>
<gac at gac.icann.org>; ws2-jurisdiction  <mailto:ws2-jurisdiction at icann.org>
<ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Jurisdiction Subgroup. Draft Report.
Statement of Brazil. Annex. To be annexed to the draft report. For
consideration by the CCWG.

Dear All

Enclosed is the complete document of my dissenting opinion, which now
includes part 2 as well (with some modifications in part 1) as a single
document. Please ignore the earlier submitted document. 

This is for CCWG's consideration. Also for jurisdiction sub-group, assuming
that it continues to function.

Best regards

parminder 

On Sunday 15 October 2017 11:51 PM, parminder wrote:

Dear All

I fully support the excellent "statement of Brazil", which makes the
required point very well. The sub-group should consider the draft
recommendations made in the statement. In default, the CCWG should directly
consider them.

My own dissenting opinion is enclosed. It is in two parts, part 1 is about
what was the group's mandate to do but it failed to do. This part first
expresses support to Brazil's statement, and then makes additional points,
detailing how there has been a miscarriage of due process, and thus
justifying why Brazil's draft recs must be considered, in the required
elaborate manner. Part one is enclosed herewith.

Part two will present  some comments on and disagreements with regard to the
two sets of draft recs that have been submitted on the sub-group's behalf. I
am still to write them, so allow me to submit them in the next 12 hours,
which will still be the weekend in some parts of the world, and thus within
the deadline I hope.

Best regards, parminder 

On Sunday 15 October 2017 06:43 AM, Thiago Braz Jardim Oliveira wrote:

Dear all,

On behalf of the Brazilian Government, I hereby submit the "Statement of
Brazil" and its annex, which are to be annexed to the draft report of the
jurisdiction subgroup, submitted on 11 October 2017, for consideration by
the CCWG plenary.

Best regards,

Thiago

  _____  

De:  <mailto:ws2-jurisdiction-bounces at icann.org>
ws2-jurisdiction-bounces at icann.org [
<mailto:ws2-jurisdiction-bounces at icann.org>
ws2-jurisdiction-bounces at icann.org] em nome de Greg Shatan [
<mailto:gregshatanipc at gmail.com> gregshatanipc at gmail.com]
Enviado: quinta-feira, 12 de outubro de 2017 23:29
Para:  <mailto:accountability-cross-community at icann.org>
accountability-cross-community at icann.org
Cc:  <mailto:acct-staff at icann.org> acct-staff at icann.org; ws2-jurisdiction
Assunto: Re: [Ws2-jurisdiction] Jurisdiction Subgroup Draft Report for
CCWG-Accountability Plenary Review

All,

One of the Subgroup members pointed out a minor editing error in the
document.  On pages 13-14, there were several mentions of the RAA, when in
fact the language quoted and discussed was from the ICANN Terms and
Conditions for Registrar Accreditation Application.  (The reference was
correct in the Executive Summary.)  This has now been fixed in the attached.

Greg 

On Thu, Oct 12, 2017 at 10:10 PM, Greg Shatan <gregshatanipc at gmail.com
<mailto:gregshatanipc at gmail.com> > wrote:

All,

Some minor formatting errors crept into the Report when it was converted
from Word to PDF.  A new PDF of the report is attached. I've checked each
page to confirm that the formatting errors were resolved.

Thank you to Jorge Cancio for catching this problem!

Greg

On Wed, Oct 11, 2017 at 7:53 PM, Greg Shatan <gregshatanipc at gmail.com
<mailto:gregshatanipc at gmail.com> > wrote:

All,

I am pleased to submit the Draft Report from the Jurisdiction Subgroup for
consideration by the CCWG-Accountability Plenary.

It is my understanding that a minority viewpoint is expected to be
submitted.  In the interests of time, this will be submitted to the Plenary
separately from the Draft Report.

During the preparation of the OFAC Recommendation, the Subgroup considered
an email where a registrar declined to do business with a potential
reseller, based on the registrar's policy of not doing business with people
with Iranian passports.  The Subgroup also learned that this registrar,
which had been registering domains for a number of Iranian nationals,
refused to continue to do business with them.  The Subgroup has concluded
that, to the extent these instances are related to OFAC, the concerns raised
by these instances are adequately covered in the Recommendation already
without any additional changes.  This is not in any way a comment on the
validity of these particular concerns.  The Subgroup will consider creating
"stress tests" based on these scenarios.

I look forward to the Plenary's reading of the Draft Report.

Best regards,

Greg Shatan

Rapporteur

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