[CCWG-ACCT] 2nd reading of jurisdiction sub group report

[parminder]

Greg

It is unfortunate that among the few and very weak arguments that you
put forward today in the f3f meeting about why customised immunity was
never officially discussed in the sub-group you said that this was
because it was offered as remedy without showing the issues that it
addressed.... This, as I said during the meeting, is a shockingly false
statement, and I said that I would provide evidence for it. You came
back and stood by your statement. And so, the evidence as I promised is
below.

You set up a google doc on influence of existing jurisdiction on ICANN
(link to it follows) to collect the issues that needed to be addressed,
right.... One of the first entries made on it was mine, and it was
extensively commented upon (most extensively by yourself).... This was
close to the start of the process, near the middle of 2016. The entry on
various issues I made was as follows.

(cut paste form the doc begins)

     1.

        A US court may find ICANN's actions, involving actual operation
        if its policies –like delegation of a gTLD, and/ or acceptance
        of certain terms of registry operation, to be in derogation of
        US law and instruct it to change its actions.

     2.

        Emergency, including war related, powers of the US state –
        existing, or that may be legislated in the future, like for
        instance that involves country's critical infrastructure – may
        get invoked with respect to ICANN's policies and functions in a
        manner that are detrimental to some other country (or countries).

     3.

        An US executive agency like OFAC may prohibit or limit
        engagement of ICANN with entities in specific countries.

     4.

        FCC which has regulatory jurisdiction over US's communication
        infrastructure may in future find some ICANN functions and/ or
        policies to be such that it would like to apply its regulatory
        powers over them in what it thinks is the interest of the US public.

     5.

        US customs, or such other enforcement agency may want to force
        ICANN to seize a private gTLD of a business that is located
        outside US which these agencies find as contravening US law,
        like its intellectual property laws.

     6.

        A sector regulator in the US, say in the area of health/ pharma,
        transportation, hotels, etc, may find issues with the registry
        agreement that ICANN allows to a registry that takes up key gTLD
        denoting these sectors, like .pharma, .car, .hotel and lays
        exclusion-inclusion and other principles for the gTLD, and it
        may force ICANN to either rescind or change the agreement, and
        conditions under it.

(ENDS)

This entry with many comments is still visible in this doc that you
developed, 
https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit


All these are directly issues that point towards customised immunity as
the remedy -- and lest there be any doubt the connection was explicitly
made in group's email discussions. Many of these issues were again
underlined by a statement made, in Nov 2016 at Hyderabad ICANN, by
nearly all Indian NGOs active in IG area and supported by two largest
global coalitions in this area. Pl see
http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf 
. The statement connects these issues to customised immunity as a
possible remedy, providing full details. This statement was posted on
sub -group's list and discussed. Then during the public comment period
(response to the questionnaire, pl see the corresponding ICANN page)
many inputs once again raised important issues and linked them to
customized immunity as a possible solution....

It is most shocking now at the end of the process to hear from the sub
group's chair that customised immunity was always being proposed 
without showing the issues that it could remedy -- AND THAT WAS THE
REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION.

Greg, you must either disprove what I am saying here, and saying it with
documented evidence, or withdraw your statement that undermines the
large amount of work that so many of us did, and indeed the whole sub
group's working..... We cannot let such false statements to be recorded
as the historical records of this group's work, and the transcript of
today's f2f meeting is supposed to go as a record annexed to the final
report..

Our problem is; there was just too much prejudice, and people, including
prominently the process heads/ chairs, were simply not listening to many
us, they were tuned out even before the deliberative process begun!!
This is not a consultative and participative process, this is something
made to look like one....

Look forward to your response

parminder
















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