[Ws2-jurisdiction] Proposed Additional Question

Sun Dec 4 17:35:55 UTC 2016

Greg

And everyone – as I’ve said before, I think this question is speculative and not necessary at all.  I would therefore continue to oppose adding it for the good and sufficient reason that moving ICANN’s corporate headquarters has, repeatedly, been deemed beyond the limited scope of this WG and for the equally good reason that only a small, vocal minority support further consideration of this question.

If, however, we are going to go forward with this question over my objection, I would respectfully suggest some drafting issues.  In particular, unlike your earlier draft questions (whose specificity I liked), this question is indefinite as to the meaning of jurisdiction being used in the phrase “under U.S. jurisdiction and subject to U.S. and California law.”  Most notably, as we have discussed, jurisdiction can mean venue, choice of law, or law of corporate organization.  It can also mean subject matter jurisdiction or personal jurisdiction.  Given that ICANN will continue to have activities occurring in the US even if it were to move to Transdniester (thanks for that one Nigel) it will always be subject to US and California law … just as it will always be subject to EU law, UK law, and Indian law.  I would at least recommend clarifying which of these meanings you intend.

Cheers

Paul

Paul Rosenzweig

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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Saturday, December 3, 2016 11:47 PM
To: ws2-jurisdiction at icann.org
Subject: [Ws2-jurisdiction] Proposed Additional Question

All,

On the list and the most recent Jurisdiction Subgroup call, we have been discussing a proposal to add another question to the questionnaire being prepared by this group. Specifically, we've been discussing

1.  Whether this question should be sent out by the Subgroup; and

2.  The drafting of the question.

On the first point, there was a fairly even split (among the few who responded) on the call.  On the list, there were about twice as many responses opposed to sending the question, at least as originally drafted.

Before revisiting whether to send the question out, we should continue to refine the question, so that it's clear what proposed question we're considering.

I've gone through the email thread discussing this question, and I've pulled out the various formulations of the question.  I've also pulled out the comments that had suggestions regarding the scope and wording of the question.  These appear directly below.  That way, we can all see how the discussion evolved on the list. Taking into account the various formulations and the various comments, as well as the language of Annex 12, I've prepared the following proposed formulation for the Group's review and comment:

Fourth proposed formulation

What do you think are the advantages or problems, if any, relating to ICANN being under U.S. jurisdiction and subject to U.S. and California law, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms? 

Please support your response with appropriate examples, references to specific laws, case studies, other studies, and analysis.  In particular, please indicate if there are current or past instances that highlight such advantages or problems.  Also, in terms of likely future risk, please mention specific ways in which U.S. or California laws safeguard or interfere with, or are likely to be used or interfere with, ICANN's ability to carry out its policies throughout the world.

For any problem identified, please identify other jurisdictions, if any, where that problem would not occur.  For each such jurisdiction, please specify whether those jurisdictions would support the outcomes of CCWG-Accountability Work Stream 1, identify the future risks of those jurisdictions, and discuss the risks associated with changing jurisdictions.  

PLEASE REPLY TO THIS EMAIL WITH YOUR COMMENTS AND FURTHER PROPOSED REVISIONS.  Thank you.

Greg

Original proposed formulation:

What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, if there are existing and past instances that highlight such problems please indicate them.

Comment:

It should, however, be made by specific reference to existing laws that could be used to interfere with ICANN's ability to provide service to customers in other countries.

Comment:

If we were to go in this direction we would also need to add something like "What do you think the problems would be, if any, of changing jurisdiction..."

Second proposed formulation:

What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc. Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.

Comment:

An unbiased question would also ask about advantages and protections, and ways in which the current jurisdictional arrangement supports ICANN's ability to carry out its mission.  I also find the focus on the concept of the "jurisdiction of the US state over ICANN," to be quite puzzling.  The primary focus of this group has been on the effects of "governing law" (whether it results from a legal or physical location of ICANN or from a contractual provision, etc.)  and not on some idea that the US Government is somehow poised to strike and exercise unilateral power over ICANN in some undefined (and possibly non-existent) fashion.

Comment:

I would oppose this as it relates to future risks unless the responders also identified other potential jurisdictions where those future risks would not be realized and assessed the future risks of those potential jurisdictions of transfer.

Third proposed formulation/comment:

What do you think are the problems, if any, with continued jurisdiction of the US state over ICANN, as a US non-profit? Please justify your response with appropriate examples, analysis, etc.
... with appropriate examples, references to specific laws, case and
other studies, analysis, ...
 Especially, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state
I think it might be good to couch this in terms of risk analysis.  Risk
is real and analyzing it is a common activity.
Also in terms of likely risk, please ...
that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.

Comment:

If we are going to allow speculation as to potential future issues that have not arisen and may never arise based on analysis that is grounded only in theory without any connection to practice then the natural question is whether those speculative harms would be ameliorated by changing jurisdiction and also whether changing would give rise to other, different, speculative harms.  If we want to just guess, let's guess not only about the horrors of remaining in the US, but also the horrors of moving.

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