[Ws2-jurisdiction] Proposed Additional Question

Sun Dec 4 22:33:39 UTC 2016

Dear Grec,
I am sorry to say that this sub group shall not to send out any question
untill and unless is approved by CCWG Plenary.
Regards
Kavouss

2016-12-04 22:35 GMT+01:00 Pranesh Prakash <pranesh at cis-india.org>:

> 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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