[Ws2-jurisdiction] FW: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Wed Dec 28 03:04:16 UTC 2016

Milton:

Rest assured that I am quite calm, and clear rather than confused. 

The question of ICANN's California incorporation is tied to that of ICANN becoming an IGO to the extent that some participants in the Jurisdiction subgroup clearly seek to terminate the CA incorporation and make ICANN a creature of "international law"  possessing jurisdictional immunity, and the only entities having substantially similar status are in fact IGOs (I recognize that other participants would prefer alternatively that ICANN relocate from US jurisdiction to some arguably more "neutral" nation).

 As for this statement --"Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government -  the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move." -- really Milton, post-transition, after the US has just surrendered its one unique lever of power over ICANN (ability to deny IANA contract renewal) and is now just one of the GAC's many members, bringing this up seems somewhat disingenuous to me. That the US was a global power and that ICANN remaining a US corporation would require it to adhere to US laws (such as OFAC restrictions) was quite well known prior to the transition, and to raise these purported issues now, when the ink is barely dry on the new RZMA agreement, can have no purpose but to raise questions about ICANN's continued US HQ location.

As for my "bait-and-switch" remark, which Avri took umbrage at as a rhetorical accusation, I feel that it is an accurate characterization of some of what is going on in this subgroup.  The IANA transition plan received acquiescence from the US Congress based upon repeated assurances from both ICANN and from the plan's business, civil society and academic supporters that ICANN would remain a California non-profit corporation and headquartered within the US. More important, the specific accountability structure adopted by the ICANN community is premised upon being enforceable under CA law. Again, as the CCWG-ACCT Co-Chairs recently observed, any alteration of ICANN's jurisdiction would mean dismantling the WS1 accountability framework and replacing it with some unknown and materially different construct.

That adoption of the WS1 accountability framework brought with it a clear commitment to ICANN remaining subject to CA and US law was a fundamental truth hiding in plain sight, and any notion that this subgroup has the authority or ability to undo that foundational decision during its limited tenure is a proposition that I will continue to speak against.

Happy new year,
Philip

Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

Suite 1050

Washington, DC 20004

202-559-8597/Direct

202-559-8750/Fax

202-255-6172/cell

"Luck is the residue of design" -- Branch Rickey

________________________________________
From: ws2-jurisdiction-bounces at icann.org [ws2-jurisdiction-bounces at icann.org] on behalf of Mueller, Milton L [milton at gatech.edu]
Sent: Tuesday, December 27, 2016 1:53 PM
To: ws2-jurisdiction at icann.org
Subject: [Ws2-jurisdiction] FW: [CCWG-ACCT] RES: Jurisdiction Proposed  Questions and Poll Results

This was sent to CCWG but intended for the jurisdiction subgroup

> -----Original Message-----
> At the same time, let us all try to return to a constructive and
> step-by-step approach, building on the progress made so far, in order
> to make progress on our mandate, established by the whole
> multistakeholder community back in Marrakech.

I agree, and I think both Pedro's and Phil's position are based on some confusion of issues. It we calm down a bit and look at this more carefully we can make progress.

Pedro may be confusing the inclusion or exclusion of Question 4 in our initial request with the question of whether we explore issues in US jurisdiction at all.  But excluding Question 4 from our initial request for information is not the same as a refusal to explore the questions it raises. I have proposed _separating_ Q4 from the other 3 questions, not eliminating it entirely. I proposed this not because I want to avoid the questions Q4 poses, but because I want those questions to be developed better and I want to avoid conflating it with the narrower questions about dispute resolution that Q's 1-3 were designed to address. It is a mistake to put those two things together. The information we gather from Q's 1-3 will suffer from their attachment to the potentially more controversial issues raised by Q4. Let me also add that the divisive insistence that this is a matter of US citizens vs non-US citizens needs to be dropped. Avri and myself, e.g., are both US citizens/residents and have serious concerns about possible intrusions of US foreign policy and other nationalistic and governmental concerns into ICANN matters. At the same time we are both staunch supporters of a nongovernmental model in this space and have no inherent objection to California law as ICANN's basis.

Phil Corwin on the other hand is confusing the issue of whether ICANN's corporate HQ is in California with the question of whether ICANN will be an intergovernmental entity. These questions have very little to do with each other. It is of course true that there are still a few people out there who would like for ICANN to become intergovernmental, but they are a tiny minority and the weight of history is totally against them. Put more bluntly, it ain't gonna happen. Supporters of the MS model and opponents of intergovernmentalism have legitimate reasons to investigate the impact of US jurisdiction, because the US is a global power with very specific foreign policy and military interests. US jurisdiction thus may have the potential to create opportunities for one government -  the US - to have an inappropriate level of influence over ICANN's transnational, nonstate actor based governance processes. One can consider those issues without implying that ICANN's corporate HQ needs to move.

So let's stop making the status of Q4 a proxy for a long-settled war over whether ICANN is private or governmental, and let's stop pretending that those who want to separate the issues raised by Q4 from the narrower more focused issues in Q1-3 are trying to avoid legitimate issues.

As for creating a separate CCWG, are you kidding? This is the CCWG subgroup created specifically for jurisdictional issues and we don't make difficult issues easier to resolve by creating additional structures.

Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology

>
> In this vein, and consistent with our conversation in Hyderabad, let
> us continue with the line directed to requesting input from the wider community.
>
> The four questions developed so far will allow us to gather much
> needed input on facts, examples and well-founded opinions on the
> influence of ICANNs jurisdiction, taking into account its multiple
> layers, on its operations and accountability.
>
> If we all are constructive and accept esch others' views as worthy of
> further discussion and study, we will be able to get this important step further.
>
> Hence, let us please stay on the right track and finalize formulations
> of all four questions, and keep up the good spirit of cooperation.
>
> with my best wishes for you all during the festivities
>
> kind regards
>
> Jorge
>
>
> ________________________________
>
> Von: Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br>
> Datum: 24. Dezember 2016 um 15:53:55 MEZ
> An: Greg Shatan <gregshatanipc at gmail.com>, parminder
> <parminder at itforchange.net>, Kavouss Arasteh
> <kavouss.arasteh at gmail.com>
> Cc: accountability-cross-community at icann.org <accountability-cross-
> community at icann.org>
> Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
> Results
>
> Dear CCWG-colleagues,
>
> After reading some comments in this email thread, I must admit to be
> really disappointed.
>
> Some of our colleagues in the CCWG seem to have forgotten - perhaps on
> purpose - that the topic of jurisdiction was allocated to WS2 as a
> result of a postponement, since the majority of this group thought it
> was not appropriate to deal with it in the pre-transition period due
> to time constraints. My government  was not in favor of postponing the
> discussion on jurisdiction, as we consider it was - and remains - a
> fundamental aspect of a new ICANN truly governed by the
> multistakeholder community without any pre-conditions, but in respect
> to the viewpoint of the other colleagues, we agreed to move it to WS2.
>
> Now that time has come to properly deal with this topic, it is quite
> frustrating to notice that some participants  insist on limiting
> and/or procrastinating this debate, including by using the absurd
> argument that any discussion around jurisdiction cannot put into
> question any aspect already decided in WS1, which is embedded in the
> California law. We cannot see good faith in that kind of circular argument.
>  In our view, the  discussion around the inclusion or exclusion of Q.4
> shows quite clearly that some of those who have fiercely objected to
> any jurisdiction debate during WS1 are  maintaining their objection in
> WS2 as well. On that particular topic (Q.4) we concur with the view
> that upon deciding on institutional arrangements we should not only
> consider already occurred cases but also take into account logically
> strong possibilities. The responses to the questionnaire should thus
> help us to deal with all possibilities associate to jurisdiction. In
> case any unsubstantiated opinion will be received, it should be summarily discarded.
> From the various jurisdiction calls it became quite evident that a
> substantial part of the subgroup - mainly non-US - has great interest
> in examining and debating ways through which we can make sure that any
> issue associated to jurisdiction  be addressed in a way compatible
> with the company's international remit of coordinating Internet public
> identifiers. In that context, I would like to highlight my
> government´s understanding that although the proposed questionnaire
> under discussion may provide us with some relevant factual
> information, it does not in any way cover all aspects of interest. We
> would like to refer, for example, to the list of issues compiled by
> Kavouss Arasteh as per his 13 December 2016 e-mail. We would also
> refer to questions that have continuously been asked by Parminder,
> apparently without any satisfactory answer. Those issues and questions
> include, for example, dispute settlement related topics, which
> demonstrates, in our view, that jurisdiction cannot be seen purely
> from businesses´ viewpoint. As someone has stated, we also need to
> look at the relationship between ICANN and third parties and adequately consider non-contracted Parties that might be affected by ICANN´s acts and/or omissions.
> From the perspective of the Brazilian government, the topics raised by
> Kavouss, Parminder and others are issues of particular interest
> which, needless to say, will not be adequately addressed through the
> mere analysis of the answers provided to the questionnaire, whether it includes Q.4 or not.
>  My government has  expressed its interest in pursuing discussion on
> jurisdiction through those angles  many times - both  during the IANA
> transition process and  well before that. Other governments have done
> the same, as well as a sound number of civil society organizations
> around the globe. The "NETmundial Multistakeholder Statement", while
> calling for the internationalization of ICANN, clearly expresses this
> as well. Let me emphasize, by the way, that the NETmundial Statement
> calls for ICANN´s internationalization and not for it to become an
> intergovernmental organization. Those are two different notions that should not be confounded.
>
> If this subgroup fails to deal with the multidimensional issues
> associated to jurisdiction  properly , it may be applauded by some
> segments , but it will not contribute to putting in place a framework
> that will ensure the shared goal of making ICANN a legitimate  entity
> in the eyes of all stakeholders, including governments. To achieve
> that, no issues should be discarded as "non important" or "not yet
> verified". While preserving the essence of what was achieved in WS1,
> innovative thinking, including on the part of persons with legal
> expertise, will be needed. Is it worth to wipe an important debate
> under the carpet just to comfort one or a few stakeholder groups while
> discontenting others? What kind of legitimacy is such a biased and limited exercise likely to have within the international community? .
>
> It is time the subgroup - including the coChairs - make a honest
> assessment of the various viewpoints related to  ICANN's jurisdiction
> and conduct the debate as openly as possible in order to address all
> the concerns and interests behind it.
>
> Kind regards,
>
> Sec. Pedro Ivo Ferraz da Silva
> Division of Information Society
> Ministry of Foreign Affairs - Brazil
> T: +55 61 2030-6609
>
> ________________________________
> De: accountability-cross-community-bounces at icann.org [accountability-
> cross-community-bounces at icann.org] em nome de parminder
> [parminder at itforchange.net]
> Enviado: quinta-feira, 22 de dezembro de 2016 14:01
> Para: Kavouss Arasteh; Greg Shatan
> Cc: accountability-cross-community at icann.org
> Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
> Results
>
>
> Dear Kavouss
>
> You are right, we should first deal with the issue of the questionnaire.
>
> I agree, as do many others, that there is no justification to remove
> the proposed Q 4 from the questionnaire. The question must go out
> along with others.
>
> A question seeking information is only a question seeking information.
> People may chose to not respond to it, or give different responses,
> likely in opposition to one another. That is all very fine, and quite
> expected. But such forceful arguments to not ask for certain kinds of
> information is very disturbing, even alarming. (I have issues with how
> the other questions are framed, but I am fine to let them go out
> because some people want them to be posed.)
>
> Ordinarily, if a good number of participants here wanted a question,
> that should be enough to include it. Here, a majority of those who
> voted on the issue of this particular question wanted the question
> included. That should have conclusively stopped the debate. But no,
> not so. There is persistent effort to censor this question. And this
> in a process that is advertised as open, transparent, collaborative,
> and what not. There is something very basically wrong here.
>
> parminder
>
> On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote:
> Dear John.
> Dear Parminder,
> It is difficult for me to conclude on any solution between the lines
> of your discussion.
> Could any of you kindly give a resume of the  exchanged views.
> We need to look for some compromise solution knowing that some hard
> liners like x and y insist to impose their objections to send Q4.I
> continue to object to all questions until all 4 are agreed Nothing is
> agreed untill everything is agreed this is a  Global multistakholder
> Group discussion and NOT North American Sub-Region multistakholder
> Group dominated by certain individuals Regards Kavouss
>
> 2016-12-22 13:06 GMT+01:00 parminder
> <parminder at itforchange.net<mailto:parminder at itforchange.net>>:
>
>
> On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:
> "To turn ones face away and say, nothing can be done here, to evolve
> our democratic international systems, is to vote for a status quo
> which serves some, but not others."
>
> Rather, it is an acknowledgement of reality.
>
> Apologies for appearing to be flippant, but isnt that what every
> status quo-ist says.
> Rule of law is neither globally strong nor evenly distributed. I can
> imagine a world in which the way forward you describe is plausible
> but, regrettably, it is not the one we live in. Other systems need
> strengthening and in some cases even existence before the way forward
> is open. It's not a vote for the status quo but a recognition of path dependency.
>
> I am not asking for a violent deviation from the path - both options
> that I propose, a new international law and immunity under existing US
> Act carries forward the path-dependency, and completely safeguard the
> existing structures and processes of ICANN, the system I think you
> allude to as requiring strengthening. What I propose in fact further
> strengthens it, to a considerable extent. The ICANN system's current
> jurisdictional oversight by a single country is its biggest weak point
> in terms of international legitimacy. ( A point, unfortunately USians
> here seem not able to see and sympathise with.) Imagine an ICANN with
> immunity from US jurisdiction; how much legitimacy, and thus strength, it adds to the system.
>
>
> Thanks for the back rounder Parminder. It was, along with some
> parallel research, quite helpful.
>
> Thanks John, you are welcome.
>
> The problem remains however that there is no analogous organization to
> ICANN merely in terms of its contractual authority.
>
> Firstly, if we are hoping that a fully-developed, well-rounded
> solution, with everything fully covered by enough exact precedents, to
> this complex but very genuine problem, will simply one day drop in our
> laps, I assure you that this is not going to happen. We have to work
> for it, join the dots, take risks, make innovations, and so on. The
> point is, who is losing and gaining what from the present dispensation, and who is willing to do what is required to do.
>
> Next, I see that organisations like International Fertilizer and
> Development Centre, which we cited as an example of an NPO given
> jurisdictional immunity, also does run many projects worldwide. Any
> such project would require use of a legal status, entering contracts,
> and so on.... We just need to look into it. But if we close our eyes,
> and simply refuse to explore options, we are not going to get
> anywhere. I am not saying this example will be an exact fit for our
> requirement, but we need to see what is possible, and innovate and evolve over it.
>
> I'd also add that many of the benefits of the act are at the
> discretion of the US Secretary of State and can be revoked.
>
> Yes, which is why immunity under US Act is less sustainable option
> than international law based immunity. But still better than the present condition.
> In the recent civil society statement on
> jurisdiction<http://www.itforchange.net/sites/default/files/Jurisdicti
> on%20of %20ICANN.pdf>, we also suggested a method whereby any such
> withdrawal of immunity can be made difficult/ ineffectual (see option
> 3 in the end).
>
> The proposed jurisdictional immunity would also require all
> governments to sign off on such status, given ICANN's reach.
>
> I dont see why so. Only US gov needs to agree.
>
> I know that there is a significant literature on international compacts and law.
> Given the often decades long time frames for the passage and
> acceptance of such law, the Internet as we know it is unlikely to
> exist by the time it comes into force.
>
> These are weak excuses. It can be done in 6 months. But in any case,
> if it satisfies those who want to move towards international
> jurisdiction, what do you lose in allowing to set in motion the
> process, esp if you think it would take forever to do anything. Let
> those who want have it. In the interim, status quo would stay.
>
>
> To your question about why we do not discuss jurisdictional immunity
> under US law: it is because the domestic political reality of the
> situation makes such an eventuality so remote as to be hypothetical.
>
> The same domestic situation makes the continuation of ICANN under US
> jurisdiction even less tenable.
>
> This brings me to a very important point: the job of CCWG, working on
> behalf of the global community, is not to second guess what US gov
> will accept or not (unfortunately, that is what it has mostly done).
> If this was its real task, we as well may let US gov do what it may,
> instead of providing them the cover of legitimacy of the supposed will
> of the so called 'global community' which is what this process does.
> Our job is to recommend what we think in is best global interest, and
> is ordinarily plausible to do. This is what our job is, and we must
> just do that. Let US gov do its job - accept our recs or not. That
> burden is upon them - let s not take up their burden. This aspect of
> the work of the "community" groups involved in the transition process
> has always greatly bothered me. We must have clarity about - on whose
> behalf are we working (i think, for the global community, but you can
> clarify) and what our recs must be based on (I think, on our
> understanding of what is best for the global community, and not what
> we think US gov likes and would agree to, and what not, but again you
> can clarify)
>
>
> The described quest is admirable but IMO is a non-starter. Conditions
> do not exist presently to make it a possible.
>
> We are part of once in decades constitutional process about ICANN's
> structures. If it is not now, it is never.
>
> parminder
>
> Best regards,
>
> John Laprise, Ph.D.
> Consulting Scholar
>
> <http://www.linkedin.com/in/jplaprise/><http://www.linkedin.com/in/jpl
> apri se/>http://www.linkedin.com/in/jplaprise/
>
>
>
> From: parminder
> [<mailto:parminder at itforchange.net>mailto:parminder at itforchange.net]
> Sent: Tuesday, December 20, 2016 2:57 AM
> To: John Laprise <mailto:jlaprise at gmail.com>
> <jlaprise at gmail.com><mailto:jlaprise at gmail.com>; accountability-cross-
> community at icann.org<mailto:accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
> Results
>
> On Monday 19 December 2016 08:14 PM, John Laprise wrote:
>
> Possibilities of jurisdictional immunity? Could you please provide
> examples of organizations that enjoy such.
>
> John
> The most well known case of jurisdictional immunity is of course for
> organisations incorporated under international law. Unlike what has
> been argued here variously, although international law has to be made
> by governments through treaties etc that says nothing about the actual
> governance structure of the concerned organisation, ICANN in this case.
> International law can, to take an extreme case, hand over complete
> governance of a body created/ incorporated under international law to
> you and me... Nothing circumscribes how international law is written
> as long as all countries agree to it. It is entirely possible, and I
> think extremely plausible, that they would agree to write in such law
> the exact governance structure of ICANN as it is at present. Right now
> too, ICANN exists by and under the strength of its law of
> incorporation which is US law. In the scenario I present, it would
> just be international law instead of US law. Yes, there are matters to
> worked out in this regard, but if democracy and self-determination of
> all people, equally, is of any importance at all, we can go through
> the process, including doing the needed innovations as needed. The
> current international system was not handed over to us by God, it was
> evolved by people like us, who responded appropriately to newer and
> newer global challenges, as the one that faces us now. To turn ones
> face away and say, nothing can be done here, to evolve our democratic
> international systems, is to vote for a status quo which serves some,
> but not others. And these are the others that are protesting here, and
> seeking appropriate change. It is a political issue, lets not treat it as a technical issue, of what is argued to be difficult or too "troublesome" to pursue.
>
> Next, even without going the international law route, as has been said
> many times earlier here, US law allows even non profits to be given
> jurisdictional immunity. The concerned law is the United States
> International Organisations Immunities
> Act<https://archive.icann.org/en/psc/annex9.pdf> . And an example of a
> US non-profit being given jurisdiction immunity under it is
> International Fertilizer and Development Center. This has been
> discussed in a report commissioned by ICANN itself which can be found at https://archive.icann.org/en/psc/corell-24aug06.html .
>
> I have been unable to understand why can we not agree to even
> jurisdictional immunity under existing US law, which keeps ICANN in
> the US, preserves its existing structures, and does go considerable
> way to address the concerns about those who are concerned about
> application of US public law on ICANN, and what it may mean for its global governance work.
>
> The argument is advanced that this may affect the operation of the
> newly instituted community accountability mechanism. I dont think this is not true.
> This mechanism is a matter of internal ICANN governance system, which
> is a 'private' arrangement with choice of law available to it. It
> simply has to be put in ICANN bylaws that ICANN governance processes
> will be subject to adjudication by Californian courts as present. That
> should do. Of course the mentioned International Fertilizer and
> Development Centre also must be existing with some governance systems,
> that admit of external adjudication, even as it enjoys the benefit of jurisdictional immunity from US public laws.
> Such immunity always only pertains to the policy and such
> international core activities of the concerned organisation, and
> associated matters. It would not, for instance, extend to actual crime
> being committed by its personnel on its premises. All such matters of
> various distinctions get taken care of when we enter the actual
> processes of such immunities etc. Right now, the issue is only to decide to go down the route, or not.
>
> parminder
>
>
>
> Best regards,
>
> John Laprise, Ph.D.
> Consulting Scholar
>
> http://www.linkedin.com/in/jplaprise/
>
>
>
> From: accountability-cross-community-
> bounces at icann.org<mailto:accountability-cross-community-
> bounces at icann.org> [mailto:accountability-cross-community-
> bounces at icann.org] On Behalf Of parminder
> Sent: Monday, December 19, 2016 7:10 AM
> To:
> accountability-cross-community at icann.org<mailto:accountability-cross-
> community at icann.org>
> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
> Results
>
>
>
>
> On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:
>
> SNIP
>
> John Laprise's wording was much, much better:
>
> "What are the advantages or disadvantages, if any, relating to
> changing ICANN's jurisdiction*, particularly with regard to the actual
> operation of ICANN's policies and accountability mechanisms?"
>
> This formulation does not include possibilities of jurisdictional immunity.
>
> Something like
>
>
>
>
> "What are the advantages or disadvantages, if any, relating to
> changing ICANN's jurisdiction*, or providing possible jurisdictional
> immunity, particularly with regard to the actual operation of ICANN's
> policies and accountability mechanisms?"
>
> would be better.
>
> parminder
>
>
>
>
>
> _______________________________________________
>
> Accountability-Cross-Community mailing list
>
> Accountability-Cross-Community at icann.org<mailto:Accountability-Cross-
> Community at icann.org>
>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
> _______________________________________________ Accountability-Cross-
> Community mailing list Accountability-Cross-
> Community at icann.org<mailto:Accountability-Cross-Community at icann.org>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
> _______________________________________________
> Accountability-Cross-Community mailing list Accountability-Cross-
> Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

-----
No virus found in this message.
Checked by AVG - www.avg.com
Version: 2016.0.7924 / Virus Database: 4739/13633 - Release Date: 12/22/16