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

Thu Jun 8 13:14:12 UTC 2017

Dear Thiago

Since you and I understand the mandate quite differently, we are not
reopening it.  We are trying to resolve it.  Your view is, in my opinion,
inconsistent with the mandate and foreclosed.  You think otherwise.  

Paul

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
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M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
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-----Original Message-----
From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Thiago Braz Jardim
Oliveira
Sent: Thursday, June 8, 2017 8:48 AM
To: 'ws2-jurisdiction at icann.org' <ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup
will be on Tuesday's Agenda (Paul Rosenzweig)

Dear Paul,

On the contrary, it seems to me that what is preventing us from getting to
the substantive discussions is precisely this drive from this vocal group of
individuals to reopen the mandate debate. A proposal was clearly put forth
by Jorge to keep moving forward and only come back to the mandate debate to
seek guidance for controversial cases. I myself seconded this and other did
too. But this seems to have been completely ignored by the rapporteur, as
much as he seems to be ignoring from time to time the contribution of
others. In fact, I find it quite disturbing that the inclusion in our agenda
of the mandate question has come from the rapporteur when no one else was
calling for it, at least twice, and now at a point in time where we were
about to engage in substantive discussions the subgroup had no problem in
agreeing was for us to examine. Let us get on with the issues we already
identified as part of our mandate, we have pointed to two in our last call.
I'd sure be more tha  n delighted to be reading contributions from yourself
and others that are not simply this mantra that sounds to me like "this
shouldn't be discussed because I don't want and have no interest in
discussing it". Please understand interest as you will.

Best,

Thiago

-----Mensagem original-----
De: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] Em nome de
ws2-jurisdiction-request at icann.org
Enviada em: quarta-feira, 7 de junho de 2017 18:53
Para: ws2-jurisdiction at icann.org
Assunto: Ws2-jurisdiction Digest, Vol 12, Issue 13

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Today's Topics:

   1. Re: Mandate and Scope of Jurisdiction Subgroup	will be on
      Tuesday's Agenda (Paul Rosenzweig)

----------------------------------------------------------------------

Message: 1
Date: Wed, 7 Jun 2017 17:52:48 -0400
From: "Paul Rosenzweig" <paul.rosenzweig at redbranchconsulting.com>
To: "'Greg Shatan'" <gregshatanipc at gmail.com>,
	<ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction
	Subgroup	will be on Tuesday's Agenda
Message-ID: <014501d2dfd8$67c13150$374393f0$@redbranchconsulting.com>
Content-Type: text/plain; charset="utf-8"

I fully support David?s statement of the mandate?s jurisdiction.  It is
depressing indeed that a vocal minority of people continue to seek an
expansion when it is neither required by our mandate nor supported by a
majority of our subgroup.  The continued insistence of some on relitigating
issues over and over again is both delaying important work and, frankly,
providing an excellent example of the way the ?heckler?s veto? works in
multi-stakeholder processes.

I have been silent on this list because there is absolutely nothing new that
has been said in the last 3 months that isn?t exactly what was said before
hand.  Like Nigel, I think we should bury this dead horse instead of beating
it.

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com

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From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Wednesday, June 7, 2017 4:35 PM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup
will be on Tuesday's Agenda

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

i.	Previous discussions on scope should be reviewed prior to discussion
ii.	Any lists of proposed issues should be reviewed

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

iii.	New inputs or views should be solicited
iv.	Ample work should be done on the list
v.	This should not be a complete rehash of prior discussions
vi.	Group should discuss scope and come to a decision on the Scope of
the Subgroup and the questions to be answered by the Subgroup
vii.	Agenda for Scope meeting should be circulated approximately 7 days
in advance to promote maximum participation
viii.	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

a.	The Subgroup will identify Issues before it goes on to explore
Remedies.
b.	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.
c.	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 <mailto: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-?-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-bounces at icann.org>
[mailto:ws2-jurisdiction-bounces at icann.org
<mailto:ws2-jurisdiction-bounces at icann.org> ] Em nome de
ws2-jurisdiction-request at icann.org
<mailto:ws2-jurisdiction-request at icann.org>
Enviada em: segunda-feira, 5 de junho de 2017 09:00
Para: ws2-jurisdiction at icann.org <mailto: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 <mailto: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
<mailto:ws2-jurisdiction-request at icann.org> 

You can reach the person managing the list at
        ws2-jurisdiction-owner at icann.org
<mailto: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
<mailto: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 <mailto:gregshatanipc at gmail.com>
>
To: ws2-jurisdiction <ws2-jurisdiction at icann.org
<mailto: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
<mailto:CA%2BaOHUSKwbzuxXL-F1riN4j8SVjZhVWUsDmEYBLrYaAVKHtqKA at mail.gmail.com
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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
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Message: 2
Date: Mon, 5 Jun 2017 06:41:06 +0000
From: <Jorge.Cancio at bakom.admin.ch <mailto:Jorge.Cancio at bakom.admin.ch> >
To: <ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> >,
<gregshatanipc at gmail.com <mailto: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
<mailto: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 <mailto:gregshatanipc at gmail.com> >
Datum: 4. Juni 2017 um 23:40:05 MESZ
An: ws2-jurisdiction <ws2-jurisdiction at icann.org
<mailto:ws2-jurisdiction at icann.org> >
Betreff: [Ws2-jurisdiction] Mandate and Scope of Jurisdiction Subgroup will
be on Tuesday's Agenda

All,