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

[Seth Johnson]

Sounds to me as if the question of immunity should have been discussed
by taking up the concerns it was intended to remedy.  And as if the
concerns raised were treated as implicitly uninteresting or even
impertinent.

Concerns should have been enumerated and examined independently,
treated as captured "stakeholder voice" instead of failing to address
the bases of concern or this input.  Maybe confirming those concerns
with those who made the contribution would have been appropriate.

On Fri, Oct 27, 2017 at 8:24 AM, parminder <parminder at itforchange.net> wrote:
> 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)
>
> 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.
>
> 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).
>
> An US executive agency like OFAC may prohibit or limit engagement of ICANN
> with entities in specific countries.
>
> 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.
>
> 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.
>
> 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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