[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 16:54:05 UTC 2017

I think both Milton's questions and Farzeneh's email get to a fundamental
ambiguity in both submissions:

It is unclear whether they are expressing a minority viewpoint about each
of the recommendations that are in the Subgroup Report (i.e., they do not
join the consensus that each recommendation needed in the Subgroup in order
to be reported up to the Plenary).

In other words, do they dissent from each recommendation set out in the
Report?

Based on my reading of the submissions, it might be the case that Parminder
would answer yes because in his view the stated recommendations do not go
far enough. That critique of the recommendations seems clear enough.  Some
with that same view would join the consensus (since consensus rarely aligns
perfectly with any single participant's view), while others will choose not
to support the recommendation.  It is not entirely clear which "bucket"
Parminder falls into.  While I assume it is the latter, that needs to be
confirmed rather than merely assumed.

I am unable to glean a position on the recommendations from the submission
of Brazil.

At the least, a minority viewpoint needs to be clear on this level, setting
aside whatever other issues might be raised.

Greg

On Wed, Oct 18, 2017 at 12:22 PM, farzaneh badii <farzaneh.badii at gmail.com>
wrote:

> This was the chance to get our voice heard at ICANN about US sanctions.
> After 19 years of doing nothing about it, now we have solid recommendations
> to overcome OFAC issues. At whose expense are these recommendations being
> opposed to because some want to fight imperialism and windmills. I wish our
> work would not be undermined, we did real work in jurisdiction group.
>
> Of course, there are other issues that need to be discussed, for example,
> the ccTLD issue is something we reported on. It didn't gain traction. But I
> believe it does not mean it will never be discussed.
>
> Undermining the work of this group will block a very effective way to
> facilitate access to domain name system for people in sanctioned countries.
> I hope you consider this when you oppose the recommendations of the
> subgroup.
>
>
>
>
>
>
>
>
>
> Farzaneh
>
> On Wed, Oct 18, 2017 at 12:03 PM, Kavouss Arasteh <
> kavouss.arasteh at gmail.com> wrote:
>
>> Dear All,
>> This type of intergation is not legitimate
>> Regards
>> Kavouss
>>
>> On Wed, Oct 18, 2017 at 5:26 PM, Mueller, Milton L <milton at gatech.edu>
>> wrote:
>>
>>> 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
>>> <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>
>>> <thiago.jardim at itamaraty.gov.br>; accountability-cross-community
>>> @icann.org
>>> *Cc:* acct-staff at icann.org; gac at icann.org; GAC <gac at gac.icann.org>
>>> <gac at gac.icann.org>; ws2-jurisdiction <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:* ws2-jurisdiction-bounces at icann.org [ws2-jurisdiction-bounces at ican
>>> n.org] em nome de Greg Shatan [gregshatanipc at gmail.com]
>>> *Enviado:* quinta-feira, 12 de outubro de 2017 23:29
>>> *Para:* accountability-cross-community at icann.org
>>> *Cc:* 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>
>>> 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>
>>> 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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>>>
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>>>
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>>>
>>>
>>>
>>>
>>>
>>>
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>>>
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>>>
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>>>
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