[Ws2-jurisdiction] Proposed Additional Question

Sun Dec 4 21:35:09 UTC 2016

Dear Greg,
I like this fourth formulation the best of the alternatives so far, 
however, there is one part that I see as being problematic:

> 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.

Rather than the focus on "other jurisdictions", the focus should be on 
the concrete alternatives that the survey respondent has in mind, and 
this is pre-judging the issue.

I, for instance, have been proposing the idea of "jurisdictional 
resilience" which isn't about opposing US jurisdiction but rather 
concentration in any one jurisdiction of governmental powers over core 
DNS bodies (ICANN, PTI, and RZM).

Your formulation allows me to express this as a problem, but the 
solution I propose wouldn't be captured by your formulation since my 
solution isn't one involving swapping one jurisdiction for another.

I would suggest forcing people to propose concrete alternatives, but not 
prejudging the form of those alternatives as you inadvertently seem to 
have done.

Also, I for this:
> or are likely to be used or interfere with

I would instead suggest:
"or may potentially be used or interfere with"
since, as Yogi Berra said, it's tough to make predictions, especially 
about the future.  So, instead of a prediction ("likely"), we could 
replace it with a risk potential.

I hope that makes sense, and that we agree on the need for slightly more 
open-ended formulation for the solutions paragraph.

Regards,
Pranesh

Greg Shatan <gregshatanipc at gmail.com> [2016-12-03 23:47:13 -0500]:
> 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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>

-- 
Pranesh Prakash
Policy Director, Centre for Internet and Society
http://cis-india.org | tel:+91 80 40926283
sip:pranesh at ostel.co | xmpp:pranesh at cis-india.org
https://twitter.com/pranesh

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