<html>
<head>
<meta http-equiv="Content-Type" content="text/html; charset=utf-8">
</head>
<body text="#000000" bgcolor="#FFFFFF">
<br>
<div class="moz-cite-prefix">On Saturday 28 October 2017 02:34 AM,
John Laprise wrote:<br>
</div>
<blockquote type="cite"
cite="mid:CAAekxJW=AU0qKkxMBybqb-eCLjUx=_X+WAoAgMYTQnkgTyst3w@mail.gmail.com">
<p dir="ltr">Speaking as a member, I listened but my disagreement
was not motivated by prejudice. I simply found your positions
lacked sufficient merit.</p>
</blockquote>
John, you have a right to hold that opinion, and, who knows, you may
even be right. <br>
<br>
But perhaps you'd note that my below note does not argue the merit
of my position but the demerits of the sub-group chair having
blatantly ignored the calls from a big number of sub group
participants to formally consider the option of customised immunity
for ICANN under an existing US law. After having not allowed a
proper consideration of this option - which was the chief demand of
its proponents -- the sub-chair gave different excuses -- the sub
group report says, we could not consider it because we ran out of
time, in the f2f ICANN meeting it was claimed that this option was
not considered bec it was not connected to any particular issues or
problems that it was meant to address.... Earlier -- just before
J'berg ICANN meeting -- it had been claimed that this option was
being taken off the table because it was unlikely to find traction
(somehow the sub group and ccwg chair seemed to have found this out
even without formal consideration of this option -- which is called
prejudice). Later when many protested about this decision, it was
clarified that only moving ICANN's place of incorporation was off
table -- which was fine with us -- and not customised immunity. This
wash an implied promise that it will be taken up for discussion, but
it never was...<br>
<br>
My purpose in these interventions is to show how inappropriately the
process was conducted, and thus question its illegitimacy, by
ICANN's own professed standards of open participation, adequate
consideration of all views, and so on..... It was clear that some
people were afraid that the very justifiable option of customised
immunity under an existing US Act -- under which some US non profits
already function, without any apparent problem -- will be difficult
to argue against rationally, which is why round-about means were
employed to push it away, instead of open discussions which too
could very well have resulted in rejection of this option by the
group. <br>
<br>
Many people seem to be against the immunity under IOI (International
Organisations Immunities) Act proposal because they thought that
this will make it impossible for ICANN to continue to use California
law for incorporation and for its internal governance processes,
including the new community accountability mechanism. This is simply
not true, because as said there are other NGOs in the US availing of
immunity under US's IOI Act, but still incorporated under non profit
law of a US state, and using it for internal gov processes. In any
case, we repeatedly asked for legal opinion to be taken, an<i><b>d
were ready not to pursue the immunity under IOI Act route</b></i><i><b>
if it meant ICANN cannot use California non profit law for its
internal gov processes</b></i>. Our repeated requests to get
legal opinion were not even acknowledged by the sub-group chair. Is
this fair?<br>
<br>
Other people seem against customised immunity because they say they
indeed want continued US's parental guidance for ICANN -- it was
said that ICANN could go rogue in absence of such jurisdictional
oversight of US.... We said that a carve out for more important
needed US laws could be made in the "customised immunity" option,
but they seem wanted blanket application of all US laws over ICANN
-- that obviously makes a mockery of the aspiration of ICANN to be a
truly global organisation, as stated in the Net Mundial statement,
undertaking a key global governance function.<br>
<br>
Now, first of all, this means that we all admit that ICANN remains
under jurisdictional oversight of the US state, and thus the
unilateral oversight question has only been partly addressed with
NTIA's withdrawal for its direct oversight role. We still need to
address US's jurisdictional oversight over the purportedly global
governance institution of ICANN. <br>
<br>
Second, this is strange argument from those who are otherwise the
most vocal proponents of the ICANN's so-called bottom up model,
where policy and rules are made in a bottom-up manner... It is
almost exactly like the fiasco in the workstream 1 when CCWG decided
that ICANN should become a members-based body, with members drawn
from chartering organisations, but ICANN said sorry, this wont work,
because the chartering organisations are simply not representative
enough of the community (that mythical, utterly elastic thing!)!!!
No one really understood this -- wasnt ICANN's whole legitimacy
based on community based processes of these chartering
organisations?! <br>
<br>
But then it seems that the powers-that-be in the ICANN can use
different arguments of bottom-up, need for jurisdictional oversight,
and so on, as they wish, even when it is often done in contradictory
manners. This is utterly irrational, but such things seem to pass
the muster of the "ICANN community" without any murmurs, and
everyone in the end simply proclaims how great ICANN and its
community participation processes are..... No they are evidently
not, and that is the point. <br>
<br>
Every single multistakeholder meeting that have taken place in India
during the transition period concluded that US's exclusive
jurisdiction over ICANN to be the top issue that needs to be
addressed, and everyone I have talked to finds the customised
immunity under IOI Act as a perfectly rational solution.... But in
ICANN's so called highly participative processes, that option cannot
even get a formal sopce for full consideration... That is the
participative nature of ICANN, so, guys, let us not fool ourselves.
<br>
<br>
If this proposal was formally discussed in the jurisdiction
sub-group and CCWG ( no, not as a 2 hour session of presenting
dissenting opinions after the act), and people had space and time to
exchange views in a structured manner on why proponents find it a
good option, and what were the misgivings of others, and whether
they could be addressed, and so on, we would have had a really open
and fair consideration of the proposal. Whether it could find
consensus in the end or not, we would have built a useful record of
the views around the proposal for future work on it. But that was
not to be. Simply because those who were supposed to neutrally guide
the process were full prejudiced against it, and considered it some
kind of a demon that needed to kept away from the door as diligently
as possible. <br>
<br>
In the process they simply ended up casting long shadows on the
very meaningfulness of ICANN's so called bottom-up processes - -they
work, yes, but within a (fairly low) glass ceiling. And when you
touch that ceiling, everyone knows it quickly that it has been
reached. <br>
<br>
parminder <br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<blockquote type="cite"
cite="mid:CAAekxJW=AU0qKkxMBybqb-eCLjUx=_X+WAoAgMYTQnkgTyst3w@mail.gmail.com">
<div class="gmail_quote">
<div dir="ltr">On Fri, Oct 27, 2017, 4:24 PM parminder <<a
href="mailto:parminder@itforchange.net"
moz-do-not-send="true">parminder@itforchange.net</a>>
wrote:<br>
</div>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div text="#000000" bgcolor="#FFFFFF">
<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> </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="m_-841072311845187665moz-txt-link-freetext"
href="https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit"
target="_blank" moz-do-not-send="true">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="m_-841072311845187665moz-txt-link-freetext"
href="http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf"
target="_blank" moz-do-not-send="true">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>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<p><br>
</p>
<p><br>
</p>
<p>sss<br>
</p>
<p><br>
</p>
<p><br>
</p>
<br>
</div>
_______________________________________________<br>
Accountability-Cross-Community mailing list<br>
<a href="mailto:Accountability-Cross-Community@icann.org"
target="_blank" moz-do-not-send="true">Accountability-Cross-Community@icann.org</a><br>
<a
href="https://mm.icann.org/mailman/listinfo/accountability-cross-community"
rel="noreferrer" target="_blank" moz-do-not-send="true">https://mm.icann.org/mailman/listinfo/accountability-cross-community</a><br>
</blockquote>
</div>
</blockquote>
<br>
</body>
</html>