[Ws2-jurisdiction] Proposed Additional Question

Sun Dec 4 23:42:48 UTC 2016

+1

While I appreciate Greg's efforts to refine the question, I see no clear reason to open a jurisdictional Pandora's Box that is almost sure to generate a substantial workload to little practical end.

Philip S. Corwin, Founding Principal
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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of matthew shears
Sent: Sunday, December 04, 2016 3:55 PM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Proposed Additional Question

Greg

I tend to agree with Paul and David.

If there is WG agreement that this is a useful question I would ask that we also consider the following small edit:
Remove "What do you think" in the first line - replace with "What are" - I am not a fan of speculation on matters such as this.

Matthew
On 04/12/2016 19:01, McAuley, David wrote:
Hi Greg,

Thank you for your efforts to move this along.

I oppose the question. In my personal opinion this is beyond what our WS2 should be looking at (for reasons I have previously stated) and has the potential for a major distraction for us.

If the group decides to send such a question forward, I tend to agree with Paul about specificity, and would change part of the last sentence of the question from "...identify the future risks of those jurisdictions, ..." to "...identify the risks of those jurisdictions, ...".

Best regards,

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Saturday, December 03, 2016 11:47 PM
To: ws2-jurisdiction at icann.org<mailto: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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Matthew Shears

Global Internet Policy and Human Rights

Center for Democracy & Technology (CDT)

+ 44 771 2472987

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