[Ws2-jurisdiction] RES: Agenda and Master List of Proposed Issues for Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30 August 2017

[Thiago Braz Jardim Oliveira]

Dear Greg,
Dear All,

Without prejudice to further comments we may have regarding how the proposed issues have been assembled and are individually portrayed, let me react to the "notes" (you?) entered in respect to the "ccTLD issue".

It says "Subset of potential issue of US Courts generally. There appear to be no examples of this. The ccNSO will have a PDP on developing a dispute resolution system, which could address this as these are excluded from IRP as requested by the ccNSO (similar to ASO)".

To my understanding, the note is one-sided and expresses the views of only a handful of participants, as I explain below. To portray it without the reactions and comments that abounded in the list in response to these views might inappropriately influence the subsequent work of the subgroup on this issue.

For example, one such reaction has been the acknowledgment, even on the part of the staunchest opponents to any change to the status quo, that US organs can possibly interfere with ICANN's ccTLD management, regardless of whether that has already happened. (I invite you to look at what I believe is a fair summary of the issue here: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001496.html). This is without mentioning other reactions and comments challenging (or at least nuancing) such assertion as that "there appears to be no examples of this", as is portrayed in the note.

The same must be said in relation to the note's suggestion that a "PDP on developing a dispute resolution system ... could address this". In fact, Jordan's email, who was the person who mentioned the PDP work by the ccNSO, never really said that the ccNSO PDP "could address" the very issue that US organs can possibly interfere with ICANN's ccTLD management. On the contrary, several participants in the subgroup concurred that a ccNSO PDP would in fact "complement" our work in addressing the issue of US jurisdiction over ccTLDs, and this has not been challenged by anyone. (I invite you to look here: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001441.html ; see also the language I suggested accommodating the all views here: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001496.html, all of which I believe should not go ignored in any explanatory note to the issue that purports to be neutral)

Finally, on the broader "ccTLD issue", contrary to the original proposal and subsequent exchanges in the mailing list, the issue is being portrayed in the table as if the only problem identified against ICANN's ccTLD management lay in action in "US courts", as an expression of US "prescriptive" and "adjudicatory" jurisdiction. Here again the "note" is inaccurate, as it states that the issue is a "subset of potential issue of US Courts generally". If the issue is a subset of anything, it is a subset of US jurisdiction generally, which includes US enforcement jurisdiction, which is territorial and exclusive in character, and may be exercised outside domestic courts, for example through US enforcement and regulatory agencies. (In addition to the links above, I also invite you to look here http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001469.html)

In respect to all other issues more generally, a similar reference to "US enforcement jurisdiction" as part of the issues identified is lacking, despite the exchanges in the mailing list proposing and discussing it.

Thank you for taking the above into account.

Best regards,

Thiago



-----Mensagem original-----
De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Em nome de Greg Shatan
Enviada em: quarta-feira, 30 de agosto de 2017 01:09
Para: ws2-jurisdiction
Assunto: [Ws2-jurisdiction] Agenda and Master List of Proposed Issues for Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30 August 2017

All:

I have attached the agenda and the master list of proposed issues, collated from all of the recent submissions on the list and in the Google Doc.  As a first order of business, we need to confirm that all submissions have been found and added to this list.  Please review this before the meeting if possible.  Thanks!

I look forward to our upcoming meeting.

Greg