[Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will be on Tuesday's Agenda

[Greg Shatan]

All,

This discussion is specifically called for in our revised Work Plan and
Schedule, which was approved by the Subgroup in April.  In Section 4 (Work
Plan and Schedule Going Forward) subsection 4(d) states:

d. Subgroup revisits issue of Scope of the Subgroup

   1.

      Previous discussions on scope should be reviewed prior to discussion
      2.

      Any lists of proposed issues should be reviewed
      1.

         Proposed issues should be acknowledged even if there is no
         consensus
         3.

      New inputs or views should be solicited
      4.

      Ample work should be done on the list
      5.

      This should not be a complete rehash of prior discussions
      6.

      Group should discuss scope and come to a decision on the Scope of the
      Subgroup and the questions to be answered by the Subgroup
      7.

      Agenda for Scope meeting should be circulated approximately 7 days in
      advance to promote maximum participation
      8.

      A deliverable should be prepared reflecting the deliberations and
      outcome

We are up to this point in our Work Plan.

It's also worth a reminder of the Work Plan's approach to "issues":


   1.

   GENERAL APPROACH
   1.

      The Subgroup will identify Issues before it goes on to explore
      Remedies.
      2.

      There must be broad agreement in the Subgroup that a proposed issue
      is in fact an Issue and that the Issue is one that falls within the
      remit of the Subgroup.
      3.

      For each Issue, the group will then look at proposed remedies.
      1.

         The group should not discuss a Remedy until an Issue has been
         identified that requires discussion of that Remedy.
         2.

         The Subgroup needs to consider how a proposed remedy would resolve
         the Issue (or fail to resolve the Issue or even make it worse)..
         3.

         The Subgroup also needs to consider the effects and consequences
         of the Remedy.
         4.

         The Subgroup needs to consider how the Potential Remedy would
         enhance ICANN’s accountability (or have no effect on ICANN’s
accountability
         or even hamper ICANN’s accountability).

  Under 1(b), the group must consider and agree that a proposed issue is
"one that falls within the remit of the Subgroup."  Without a common
understanding of the "remit of the Subgroup," this step cannot be
adequately completed. This is a most practical reason why the mandate and
scope of the Subgroup needs to be clarified.

I agree with Jorge, up to a point, that "we need to stick to the mandate
given to the CCWG ws2 by the chartering organizations."  This is found in
the Charter, in the Final Proposal and in the Transition Bylaw (which were
collected in pertinent part in the document I circulated a couple of weeks
ago).  Unfortunately, we have not yet arrived at a common understanding of
what that mandate is.  Annex 12 cannot be read in isolation from the
Charter, the Final Proposal, the Bylaw, all of which are "higher level"
documents.

It is precisely because we are discussing substantive issues that we need
to clarify our understanding of the mandate we've been given.  The mandate
cannot be ascertained by reference to what the group has taken up in
discussions at any point in time.  Rather, the mandate has to be applied to
proposed issues as stated in 1(b) above.

If we all agreed on the scope dictated by the Charter, Final Proposal and
Bylaw, this would be an easy exercise.  However, we have never quite
resolved this most basic question.  Here is one proposed understanding of
our mandate and scope, proposed by David McAuley back in December:

[W]e have a mandate for a narrow approach. I say that because the source
documents and the larger context in which we are operating, IMO, direct us
there (although the source documents may not be as clear as one would like).

The bylaw basically says look to the Final Report.
On jurisdiction, Annex 12 of the Final Report says much by way of
background, and its language regarding “layers of jurisdiction” is really
just an acknowledgement. The operative paragraph, in my opinion, is
paragraph 30 which begins, “At this point in the CCWG-Accountability’s
work, ...”  I think reference to “this point” is recognition that what came
before, i.e., solidly grounding the accountability measures on California
law, is an important precedent to our work, as it must be.
Paragraph 30 also goes on to say, “Consideration of jurisdiction in Work
Stream 2 will focus on the settlement of dispute jurisdiction …”   The gap
​
analysis and identifying potential alternatives are to take place in that
context.
And there is a larger context in which we operate, with two particular
aspects that appear quite important.
First, we just spent years and millions of dollars basing ICANN
accountability on California law principles. Why would we throw that away?
(It’s worth noting as well that California law has demonstrated over 18
years that it actually has allowed ICANN to operate without undo
disruption.)
And the second aspect is timing/capacity – we are WS2, not the UN. We can
address gaps, if they are found, in dispute-resolution issues stemming from
jurisdiction. We cannot grant ICANN immunity or enact a treaty, nor do we
have the depth, experience, and time to come up with plausibly based
recommendations in such regard.
There are fair questions being raised that are appropriate for other forums
– I personally think we, however, should focus on WS2 as constituted in
Annex 12.

​
If this can serve as a statement of our mandate, or at least the basis for
such statement, that would help us move past this point. However, it's not
up to me to make that judgment.

​What are people's thoughts or other formulations (based on the
"foundational documents")?​

​Greg​



On Mon, Jun 5, 2017 at 10:46 AM, Thiago Braz Jardim Oliveira <
thiago.jardim at itamaraty.gov.br> wrote:

> Dear Greg,
>
> I'm not sure there is a need to come back to discussions we already had on
> the Subgroup's mandate (and in fact I saw no one else proposing this, at
> least not before you included it yourself as an item in our agenda).
>
> An illustration that there is no such a need is that we will be discussing
> substantive issues in our upcoming calls, which the Subgroup agreed to as
> it had no difficulty in seeing them as within our mandate: the impact of
> OFAC sanctions in ICANN's operations, for example, and the ability of US
> courts to interfere with the allocation of ccTLDs (upon a suggestion by
> Tatiana Tropina, which others and I seconded, and which encountered no
> objection from within the Subgroup as I understand).
>
> Jorge's proposed approach is very sensible, I believe is in line with what
> the Subgroup said it'd be doing in our upcoming calls, and I fully support
> it. Perhaps only where "there would be a question of in/out scope"
> "vis-à-vis a given case", as identified and supported by a reasonable
> portion of the Subgroup, should we come back to the mandate discussion for
> specific guidance. But again, the mandate is set out in the foundational
> documents and we all have had an opportunity to read them.
>
> Best,
>
> Thiago
>
>
>
> -----Mensagem original-----
> De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
> es at icann.org] Em nome de ws2-jurisdiction-request at icann.org
> Enviada em: segunda-feira, 5 de junho de 2017 09:00
> Para: ws2-jurisdiction at icann.org
> Assunto: Ws2-jurisdiction Digest, Vol 12, Issue 3
>
> Send Ws2-jurisdiction mailing list submissions to
>         ws2-jurisdiction at icann.org
>
> To subscribe or unsubscribe via the World Wide Web, visit
>         https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> or, via email, send a message with subject or body 'help' to
>         ws2-jurisdiction-request at icann.org
>
> You can reach the person managing the list at
>         ws2-jurisdiction-owner at icann.org
>
> When replying, please edit your Subject line so it is more specific than
> "Re: Contents of Ws2-jurisdiction digest..."
>
>
> Today's Topics:
>
>    1. Mandate and Scope of Jurisdiction Subgroup will   be on
>       Tuesday's Agenda (Greg Shatan)
>    2. Re: Mandate and Scope of Jurisdiction Subgroup will       be on
>       Tuesday's Agenda (Jorge.Cancio at bakom.admin.ch)
>    3. Re: Mandate and Scope of Jurisdiction Subgroup will be on
>       Tuesday's Agenda (Kavouss Arasteh)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Sun, 04 Jun 2017 21:39:25 +0000
> From: Greg Shatan <gregshatanipc at gmail.com>
> To: ws2-jurisdiction <ws2-jurisdiction at icann.org>
> Subject: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup
>         will    be on Tuesday's Agenda
> Message-ID:
>         <CA+aOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKHtqKA at mail.
> gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> All,
>
> I wanted to provide advance notice that we will pick up the discussion of
> the Subgroup's Mandate and Scope on Tuesday's call, with the goal of
> settling the issue over this call and the next. After all, we need to know
> what our mandate is in order to know if we ar fulfilling it. Some notes:
>
> 1. It's not up to the Subgroup to define the Subgroup's mandate and Scope.
> This has been done in the foundational documents -- Charter. WS 1 Report
> and Transition Bylaw. What we need to do is clarify our understanding of
> that mandate and Scope.
>
> 2. As such, the foundational documents need to form both the basis and the
> boundary of any such clarification or proposal for clarification. These
> documents were excerpted in my "straw man" mandate document sent around in
> the last few weeks.
>
> 3. Mandate and Scope (defined in these documents) need to be distinguished
> from potential issues participants might raise. Such issues, by and large,
> are not mentioned in the foundational documents.
>
> 4. The Mandate and Scope will be used to determine if any potential issue
> is "in scope".
>
> 5. Discussions of the issue on the list in advance of the call will be
> most helpful, since the call is only an hour.
>
> 6. While some have said we have gone in circles on this issue, or avoided
> resolving it. The goal here and now is to avoid that fate, whatever the
> outcome might be.
>
> Finally, I request broad participation on this issue, even if you have
> given up on this subject of discussion.
>
> Thank you.
>
> Greg
> -------------- next part --------------
> An HTML attachment was scrubbed...
> URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/
> 20170604/362abea6/attachment-0001.html>
>
> ------------------------------
>
> Message: 2
> Date: Mon, 5 Jun 2017 06:41:06 +0000
> From: <Jorge.Cancio at bakom.admin.ch>
> To: <ws2-jurisdiction at icann.org>, <gregshatanipc at gmail.com>
> Subject: Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction
>         Subgroup will   be on Tuesday's Agenda
> Message-ID:
>         <AB0B03BAA04C59408DBA5398AFB3B5200D29C434 at SB00108A.adb.intra
> .admin.ch>
> Content-Type: text/plain; charset="us-ascii"
>
> Dear Greg,
>
> I have a calendar invite for Thursday (not Tuesday).
>
> In any case, either Tuesday or Thursday I need to apologize because I'll
> be tied in meetings in Tallinn (Eurodig and EU).
>
> As to the mandate and scope: please note my position that we need to stick
> to the mandate given to the CCWG ws2 by the chartering organizations.
>
> The decision whether something is in or out of scope should be based on
> that mandate, should be considered in light of the specific facts of the
> case, and should be decided prima facie by the CCWG plenary...
>
> The Subgroup may reach ex-post i.e. case by case its own understanding
> v-a-v a given case where there would be a question of in/out scope, but I
> don't think we should lose time on developing an ex-ante position of the
> Subgroup in general terms.
>
> kind regards
>
> Jorge
>
>
>
>
> ________________________________
>
> Von: Greg Shatan <gregshatanipc at gmail.com>
> Datum: 4. Juni 2017 um 23:40:05 MESZ
> An: ws2-jurisdiction <ws2-jurisdiction at icann.org>
> Betreff: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup
> will be on Tuesday's Agenda
>
> All,
>
> I wanted to provide advance notice that we will pick up the discussion of
> the Subgroup's Mandate and Scope on Tuesday's call, with the goal of
> settling the issue over this call and the next. After all, we need to know
> what our mandate is in order to know if we ar fulfilling it. Some notes:
>
> 1. It's not up to the Subgroup to define the Subgroup's mandate and Scope.
> This has been done in the foundational documents -- Charter. WS 1 Report
> and Transition Bylaw. What we need to do is clarify our understanding of
> that mandate and Scope.
>
> 2. As such, the foundational documents need to form both the basis and the
> boundary of any such clarification or proposal for clarification. These
> documents were excerpted in my "straw man" mandate document sent around in
> the last few weeks.
>
> 3. Mandate and Scope (defined in these documents) need to be distinguished
> from potential issues participants might raise. Such issues, by and large,
> are not mentioned in the foundational documents.
>
> 4. The Mandate and Scope will be used to determine if any potential issue
> is "in scope".
>
> 5. Discussions of the issue on the list in advance of the call will be
> most helpful, since the call is only an hour.
>
> 6. While some have said we have gone in circles on this issue, or avoided
> resolving it. The goal here and now is to avoid that fate, whatever the
> outcome might be.
>
> Finally, I request broad participation on this issue, even if you have
> given up on this subject of discussion.
>
> Thank you.
>
> Greg
>
>
> ------------------------------
>
> Message: 3
> Date: Mon, 5 Jun 2017 12:46:45 +0200
> From: Kavouss Arasteh <kavouss.arasteh at gmail.com>
> To: "<Jorge.Cancio at bakom.admin.ch>" <Jorge.Cancio at bakom.admin.ch>
> Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org>
> Subject: Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction
>         Subgroup will be on Tuesday's Agenda
> Message-ID:
>         <CACNR4-K83Wk2CgdGLVXcgA9nQQzbCxi4G=50xzXbqU5fxLUWEg at mail.
> gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> Dear Greg,
> In the last call , you undertook to produce a document addressing OFAC.
> This fundamental and crucial .
> Pls kindly refrain to provide your personal views ; which has been always
> respected as the views of individual and not the rapporteur, I am not
> convinced with the views that you and one of CCWG members provided few
> months ago.
> ICANN must be away from any political motivation. Domain name is Natural
> and mankind resources and does not belong to any state and must be used
> neutrally, efficiently, effectively and economivcal without any
> discrimination and any political motivation.
> If that issue is not appropriately addressed we failed to fulfill our
> responsibility .
> Blocking or removing a domain name is not admitted  under any
> circumstances.
> Regards
> Kavouss
>
> 2017-06-05 8:41 GMT+02:00 <Jorge.Cancio at bakom.admin.ch>:
>
> > Dear Greg,
> >
> > I have a calendar invite for Thursday (not Tuesday).
> >
> > In any case, either Tuesday or Thursday I need to apologize because
> > I'll be tied in meetings in Tallinn (Eurodig and EU).
> >
> > As to the mandate and scope: please note my position that we need to
> > stick to the mandate given to the CCWG ws2 by the chartering
> organizations.
> >
> > The decision whether something is in or out of scope should be based
> > on that mandate, should be considered in light of the specific facts
> > of the case, and should be decided prima facie by the CCWG plenary...
> >
> > The Subgroup may reach ex-post i.e. case by case its own understanding
> > v-a-v a given case where there would be a question of in/out scope,
> > but I don't think we should lose time on developing an ex-ante
> > position of the Subgroup in general terms.
> >
> > kind regards
> >
> > Jorge
> >
> >
> >
> >
> > ________________________________
> >
> > Von: Greg Shatan <gregshatanipc at gmail.com>
> > Datum: 4. Juni 2017 um 23:40:05 MESZ
> > An: ws2-jurisdiction <ws2-jurisdiction at icann.org>
> > Betreff: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup
> > will be on Tuesday's Agenda
> >
> > All,
> >
> > I wanted to provide advance notice that we will pick up the discussion
> > of the Subgroup's Mandate and Scope on Tuesday's call, with the goal
> > of settling the issue over this call and the next. After all, we need
> > to know what our mandate is in order to know if we ar fulfilling it.
> Some notes:
> >
> > 1. It's not up to the Subgroup to define the Subgroup's mandate and
> Scope.
> > This has been done in the foundational documents -- Charter. WS 1
> > Report and Transition Bylaw. What we need to do is clarify our
> > understanding of that mandate and Scope.
> >
> > 2. As such, the foundational documents need to form both the basis and
> > the boundary of any such clarification or proposal for clarification.
> > These documents were excerpted in my "straw man" mandate document sent
> > around in the last few weeks.
> >
> > 3. Mandate and Scope (defined in these documents) need to be
> > distinguished from potential issues participants might raise. Such
> > issues, by and large, are not mentioned in the foundational documents.
> >
> > 4. The Mandate and Scope will be used to determine if any potential
> > issue is "in scope".
> >
> > 5. Discussions of the issue on the list in advance of the call will be
> > most helpful, since the call is only an hour.
> >
> > 6. While some have said we have gone in circles on this issue, or
> > avoided resolving it. The goal here and now is to avoid that fate,
> > whatever the outcome might be.
> >
> > Finally, I request broad participation on this issue, even if you have
> > given up on this subject of discussion.
> >
> > Thank you.
> >
> > Greg
> > _______________________________________________
> > Ws2-jurisdiction mailing list
> > Ws2-jurisdiction at icann.org
> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> >
> -------------- next part --------------
> An HTML attachment was scrubbed...
> URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/
> 20170605/975077db/attachment-0001.html>
>
> ------------------------------
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>
>
> End of Ws2-jurisdiction Digest, Vol 12, Issue 3
> ***********************************************
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170607/fd0f472d/attachment-0001.html>