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<p>Greg</p>
<p>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.</p>
<p>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.</p>
<p>(cut paste form the doc begins)<br>
</p>
<blockquote>
<p>
<style type="text/css">p { margin-bottom: 0.25cm; line-height: 120%; }</style>
</p>
<ol>
<li>
<p style="margin-bottom: 0cm; line-height: 100%">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.</p>
</li>
<li>
<p style="margin-bottom: 0cm; line-height: 100%">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).</p>
</li>
<li>
<p style="margin-bottom: 0cm; line-height: 100%">An US
executive agency like OFAC may prohibit or limit engagement
of ICANN with entities in specific countries.</p>
</li>
<li>
<p style="margin-bottom: 0cm; line-height: 100%">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.</p>
</li>
<li>
<p style="margin-bottom: 0cm; line-height: 100%">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.</p>
</li>
<li>
<p style="margin-bottom: 0cm; line-height: 100%">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.</p>
</li>
</ol>
</blockquote>
(ENDS)<br>
<br>
This entry with many comments is still visible in this doc that you
developed,
<a class="moz-txt-link-freetext" href="https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit">https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit</a>
<br>
<br>
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
<a class="moz-txt-link-freetext" href="http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf">http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf</a>
. 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....<br>
<br>
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. <br>
<br>
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..<br>
<br>
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....<br>
<br>
Look forward to your response<br>
<br>
parminder <br>
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<p>sss<br>
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