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

Wed Oct 18 15:26:55 UTC 2017

Parminder (and Thiago)
I respond to this with a very simple set of questions. All of which admit of a simple Yes or No answer:

1.       Do you or do you not think that ICANN should seek a general OFAC license for DNS services?

2.       Do you or do you not want non-US registrars to be clearly told by ICANN that the RAA does not by itself commit them to abiding by OFAC sanctions?

3.       Do you or do you not want to require ICANN to seek an OFAC license for any (non-SDP) registrar who needs it?

4.       Do you or do you not want there to be a choice of law addition to the contracted parties' contracts?

If you answer No to all these question you are indeed disagreeing with the subgroup recommendations, and you are de facto in favor of upholding the status quo, because the status quo is the only actual alternative to the consensus recommendations.

Looking forward to your answers.

--MM

From: parminder [mailto:parminder at itforchange.net]
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 <thiago.jardim at itamaraty.gov.br><mailto: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 <gac at gac.icann.org><mailto:gac at gac.icann.org>; ws2-jurisdiction <ws2-jurisdiction at icann.org><mailto: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: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org>] em nome de Greg Shatan [gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>]
Enviado: quinta-feira, 12 de outubro de 2017 23:29
Para: 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>; 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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