[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
Thu Oct 26 11:24:34 UTC 2017



On Thursday 19 October 2017 02:40 AM, Mueller, Milton L wrote:
> snip
>
>  
>
> 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."
>
> I’ve already answered this question, you just didn’t pay attention to
> the answer. My problem with most forms of immunity, other than IOI,
> that have been proposed is that most formulations of it make ICANN
> immune from all kinds of laws that we don’t want it to be immune from,
> and would undermine its accountability. E.g., antitrust law,
> California laws supporting the empowered community concept, and so on.
>

So the fact that Turmp admin is unlikely to grant immunity is not your
principal problem here. Good to be clear, bec in your earlier email this
was the issue you mentioned with partial immunity. Clearly, you will
still oppose customised immunity even if any other US admin was in place.

You then list your problems with "most forms of immunity, other than
IOI".....

But why do so when all customised immunity discussions are taking with
regard to IOI Act, and all proposals for immunity I have seen are as
under that Act... dont you instead tell your problems with non IOI
immunity..... Tell them about immunity under the US's International
Organisations Immunity Act becuase that is the proposal on the table...

California law supporting ICANN's corporate governance functions
including the new community mechanism will be excluded under such IOI
immunity.....

As for anti-trust law

it is possible to carve out things we want to carve out from such
immunities.

Meanwhile, would you give an example of possible anti-trust issue that
ICANN can get into (I understand .xxx also has some such issues in its
law suit)....

And also remember that US anti-trust machinery works with full regard to
US's geo- economic interests, as the FTC did in rejecting its staff's
report on anti trust problems with Google, on issues similar to those
reg which EU has now found Google guilty.. You want such anti trust
enforcements on ICANN that serve US's geo-eco interests?  So it is  a
question whether US's anti trust, and other regulatory and legal
machineries, are really the way to keep ICANN on a tight leash...But
again, various carve outs are possible....

parminder










>  
>
>  
>
> Dr. Milton L Mueller
>
> Professor, School of Public Policy <http://spp.gatech.edu/>
>
> Georgia Institute of Technology
>
> Internet Governance Project
>
> http://internetgovernance.org/
>
>  
>
>  
>
>  
>
> 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.
>
>
>
>
>     1.      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....
>
>
>     2.      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....
>
>
>     3.      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>
>     <mailto:milton at gatech.edu>; 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.
>
>      
>
>      
>
>      
>
>     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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>
>          
>
>      
>
>  
>

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