[Ws2-jurisdiction] REMINDER: Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]

[McAuley, David]

Thank you Greg for trying to help us navigate this difficult discussion.



If we somehow end up with questions 1-4 then I would support your strawman, except for the preamble where I support the proposed preamble.



In the meantime I am puzzled by where we find ourselves.



The poll regarding the proposed questions had 31 respondents. Questions 1-3 were supported by very wide margin, 29-2. Question 4 was supported by a very narrow margin, 17-14. And what amounted to question 5 (“If Question 4 is not approved, I support sending out a questionnaire containing only Questions 1-3”) was supported by a vote of 19-8 (with 4 not answering), a far greater margin than Q4.



What happened to the notion of sending Q’s 1-3 without Q4 based on the polling results? Question 5 decided Question 4 and the format of the survey already. As suggested by others, we should not waste any more time on this.



I suspect the questionnaire will be the primary focus of our call on Thursday Jan. 5. I will re-read a number of e-mails on the various sides of this issue and comment then.



But anticipation of that call raises a point that I believe is making our task more difficult. Participation rates are low, not just here but across WS2. Given the length and intensity of WS1 that may be understandable, nonetheless we are grappling with issues/questions that seem better suited to a forum other than WS2.



Back in September I wrote on list why I thought ICANN’s location was out of our scope – I stand by that e-mail (http://mm.icann.org/pipermail/ws2-jurisdiction/2016-September/000099.html). The questions we are wrestling with on list now seem far beyond our ability to answer, much less fix.



I am not saying the questions are improper or should never be raised – I am saying that they appear beyond our scope and capability.



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] On Behalf Of Greg Shatan
Sent: Friday, December 30, 2016 2:27 AM
To: ws2-jurisdiction at icann.org
Subject: [EXTERNAL] [Ws2-jurisdiction] REMINDER: Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]



REMINDER to READ this email and RESPOND, at least with regard to the questionnaire (see attachment).  I've slightly revised the email for clarity.



To try and focus this discussion, I'll provide a strawman for how to deal with the alternatives:



Preamble -- Use Alternative 1.

Question 1 -- Use Alternative 1.

Question 2 -- No change

Question 3 -- No change.

Question 4 -- Use Alternative 1.



Thank you for your responses.



---------- Forwarded message ----------
From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Tue, Dec 27, 2016 at 3:28 PM
Subject: Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]
To: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>



All,



I'm sending this to the Jurisdiction subgroup list, since this was initially send to a discussion thread on jurisdiction taking place on the CCWG list.



Please respond here, rather than there.  Thank you.



Greg



---------- Forwarded message ----------
From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Date: Tue, Dec 27, 2016 at 2:56 AM
Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
To: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>



All:



Two quick but important points:



1.  We have strayed from the basic topic in front of us, which is to decide on the formulation of the questions to be sent out.

​​

I have gone through the emails and meeting notes and pulled the alternative formulations and revisions in to a single document, attached to this email.



With regard to question 4, I believe that the best way to move forward is to see if one of the alternatives gets stronger support within the CCWG.  If we can get to a point where there is broad support for the question without significant opposition that may resolve issues relating to whether and when this question will be sent out.



2.  Our overall agreed-upon working method is to first identify, discuss and arrive at a list of

​problems

, and then move on to identifying, discussing and arriving at a list of potential remedies for each

​problem

 on our list.  We are still working on

​problems

.  For a remedy to be up for discussion when we move to discussing remedies, that remedy needs to provide a solution to a

​ problem

.  We can't discuss a potential remedy without having a

​ problem​

it is intended to solve.  If there is a potential "remedy" but it does not solve any of our

​problems​

, we won't discuss it.



We've already put aside one potential "remedy" until we see whether we identify any

​problems​

 it would solve -- the "remedy" of changing ICANN's jurisdiction of incorporation or headquarters location.  "Immunity" is another potential remedy that we need to deal with the same way.  Skipping forward to discussions of remedies is only slowing down our discussion of

​problems

.  I strongly suggest we refocus on

​problems​

, so that we can get to the discussion of remedies.  Once we've agreed on a list of

​problems​

, a discussion of remedies will be more productive.



Our working method of dealing with

​problems​

 first and then remedies may also help us find agreement on a way to deal with question 4.  Questions 1-3 clearly deal with issues.  Perhaps a version of question 4 that is limited to asking for

​problems​

 will get broader support ("Alternative 1" on the attachment may fit this description.)



​Greg​



​The following responses were received on the Accountability list:



Parminder:

Greg/ All

I think the Alternative 1, which you take as likely candidate for broader support, is fine. I list this formulation below:

What are the advantages or disadvantages, if any, relating to ICANN's jurisdiction*, 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.

(* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location within or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.)

ENDS

Lets move on with it. We are spending too much time on framing a question.



​Kavouss Arasteh:

Grec,

Tks again,

As I said I believe ,it is counter productive to discuss many alternative,

I could agree with formulation of Parminder

Regards

Kavouss​



Sam Lanfranco:

Greg,

Thank you for presenting alternatives for reaching agreement on a Roadmap for Moving Forward to identify operational issues embedded in the overall “jurisdiction” issue. It is important to recognize that what is being proposed is the choice of roadmap for moving forward. Where this takes us will flow from the assembly of evidence, the application of analysis, and the resulting array of possible options for addressing jurisdiction base operational issues.

Sam Lanfranco



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