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

parminder parminder at itforchange.net
Wed Oct 18 17:24:52 UTC 2017



On Wednesday 18 October 2017 08:56 PM, Mueller, Milton L 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:
>

Milton, it is strange that you yourself do not respond to simple and
direct questions, arising from own statements, but insist that others
must do it. I mean the question I asked about your main problem with
pursuing "customised immunity" solution being that it is impossible to
get it from Trump administration...Anyway, I dont want to be seem as
distracting from your questions. I think a debate and a consensus making
process is one when people do answer other people's question (it is a
different matter that in the case of jurisdiction sub group even the
Chair does not answer direct questions from members - I had asked him at
least 3 times to seek ICANN legal advice on whether it is possible to
have immunity for ICANN under US's IOI Act even while protecting ICANN's
incorporation under US non profit law, and application of other needed
US laws, but he never replied.)

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

I think ICANN should be exempt from OFAC as a part of a larger deal,
which is to have customised immunity under US's International Immunities
Act. This makes the issue of an OFAC general licence superfluous. I have
no problem with the report recommending that till the time customised
immunity can be obtained, ICANN should ask for a general OFAC licence.
Or even that, if due to some reasons ICANN is unable to get customised
immunity, it shouls ask for a general OFAC license.

Since your main objection to seeking customised immunity for ICANN was
that Trump administration wont consider it, let me throw in a dampener
here. I see no greater chance of Trump admin providing a general OFAC 
licence to cover ICANN activities than there is for it to provide
customised immunity to ICANN under IOI Act. Both you and I know this to
be a fact. But if with no chance of Trump admin giving a general OFAC
licence to ICANN we can pursue that recommendation, we can as well do so
with regard to customised immunity. It is our job to tell what is the
right thing for ICANN, let political authorities do it when they can.



> 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?
>

Yes, I think they should be so told. But I dont agree for making this or
other recs without making the customised immunity rec....

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

Yes, I agree ICANN should. If I remember right I was the first to quote
in the sub-group's elist the part from ICANN terms and conditions that
said they are under no obligation to seek OFAC license and point to the
inappropriateness of it. But I dont agree for making this or other recs
without making the customised immunity rec....

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

Same answer as above.

Although I have a question for you here. I dont see the group having
made a clear rec to ICANN to give them a real choice of law, like it
would have been if the "menu option" had been exclusively recommended.
The menu option is just one among many options given to ICANN and ICANN
may choose any... One of the options is actually to make clear that
there will only be one set of law governing all contracts- the law of US
gov and that of the state of California...... ICANN may well choose this
option from the set given in the sub groups recs..... what happens
then.... We would have regressed considerably from the current situation
where at least choice of law is not mentioned and left open. The
question to you is: is my interpretation wrong?


>  
>
> If you answer No to all these question you are indeed disagreeing with
> the subgroup recommendations,
>

MY answers are as above, and I am disagreeing with the group's
recommendation.

> 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.
>

Really, I love the status quo!!! That Thatcherite "there is no
alternative" -- you know how activists hate it... 
>
>  
>
> Looking forward to your answers.
>

I provided them. Now, as a return courtesy , will you answer the
question I had asked, and I say it again

"You often speak about intellectual honesty. Let me take you up on it: 
is your problem only about what Trump admin will do with a
"jurisdictional immunity for ICANN"  proposal? Were you really ready for
it before Trump came to power, and when he will not be in power? I hope
you do not run away and actually answer these questions."

Thanks, parminder
>
>  
>
> --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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>
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>
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>
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>
>
>
>
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>
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>
>      
>
>  
>

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