[Ws2-jurisdiction] RES: Fwd: [CCWG-ACCT] Caption Notes-Recordings-Transcript links for Jurisdiction Meeting #35 - 14 June 2017

Fri Jun 16 00:22:06 UTC 2017

Dear Greg,

The contentious issue I was referring to was the impact of ICANN's place of incorporation on its ability to perform its functions, and I'm glad you allow me to make that clearer, even though I would suppose you'd have understood it from my other interventions.

As for my views on what that issue is, a look at the e-mail I sent on 30 May would give you a sense of it: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-May/001003.html

I have no preconceived views, and was hoping to engage more in that very discussion to fully appreciate the problems, until I guess someone saw the need to ensure the group would not recommend certain solutions before we knew what the problems were.

Best,

Thiago

________________________________
De: Greg Shatan [gregshatanipc at gmail.com]
Enviado: quinta-feira, 15 de junho de 2017 20:53
Para: Thiago Braz Jardim Oliveira
Cc: ws2-jurisdiction
Assunto: Re: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Caption Notes-Recordings-Transcript links for Jurisdiction Meeting #35 - 14 June 2017

Thiago,

You completely misunderstand my position.  As rapporteur, I am expressing no opinion or position either way. Nor am I objecting to your position. My questions were intended to help others in the group understand more about your position.  You stated that what you "would propose, if I may, would be to focus on these contentious issues, on the contentious issue, which is the place of incorporation."  Since your position is not in fact procedural, but rather grounded in advancing the view that ICANN's place of incorporation is a "contentious issue," it seemed fair to help others to understand the root of your concerns.

With regard to where we stand procedurally, please see my response to Seun.

Best regards,

Greg

On Thu, Jun 15, 2017 at 7:22 PM, Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br<mailto:thiago.jardim at itamaraty.gov.br>> wrote:
Dear Greg,

Perhaps you should turn the question around and ask it yourself. Why do you think it's important to NOT have the option for this Subgroup to recommend that ICANN be either relocated or granted immunity? I'm genuinely interested in knowing your answer.

You also asked "What issue within our remit can only be solved by such drastic actions". Well, have we finished identifying the issues? I don't think so. That's what others and I have been saying we should be doing. Foreclosing solutions before we can answer this question does not make sense to me, for some such issue can appear as the Subgroup does the work it should be doing. You even had to admit this, as your objection to my stance led you to ask "what issue requires which solution"...

The distraction from the work we all would like to get done has come precisely from this insistence on ruling out (or ruling in) remedies, for God knows what reason, and this - nothing else - has prevented us from answering your own question "What issue within our remit can only be solved by such drastic actions". Really, what was preventing us from doing this?

But let's not lose sight of where we are now, and perhaps how we got there, to make sure one's views are not portrayed as the group's. To illustrate this, people in the Subgroup from different constituencies are now concerned about this attempted decision to rule out, for example, immunities, which the subgroup has never really examined nor qualified as a "drastic action".

Best,

Thiago

________________________________
De: Greg Shatan [gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>]
Enviado: quinta-feira, 15 de junho de 2017 19:40
Para: Thiago Braz Jardim Oliveira
Cc: ws2-jurisdiction
Assunto: Re: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Caption Notes-Recordings-Transcript links for Jurisdiction Meeting #35 - 14 June 2017

Thiago,

I would take issue with your retelling of recent history.

But let's switch from procedure to substance for a change.  Why do you think it is important to have the option for this Subgroup to recommend that ICANN be re-created in a different jurisdiction, or moved outside the United States, or be granted immunity from legal challenges by third parties?  How would you want to use that power?  What issue within our remit can only be solved by such drastic actions?

Absent a compelling substantive reason to do so, and something beyond "we should keep our options open," dragging out this process further has no particular value, would just seem to distract from the work we would all like to get back to.

I was once told that the worst epitaph a man could have is "He kept his options open."  I think the same can be said for working groups.

Greg

On Thu, Jun 15, 2017 at 6:17 PM, Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br<mailto:thiago.jardim at itamaraty.gov.br>> wrote:
Dear Greg,

I'm afraid I'll have to challenge your suggestion that two full meetings were devoted to considering the terms of the decision supposedly arrived at in the very last minutes of yesterday's call. We moved from debating a proposal of yours to have a question you drafted submitted to the plenary, then past that question to a table where different approaches were gathered, and then to another table. At no point did we really consider the different approaches nor their substance, nor did you as rapporteur ensure that objections or support for the different approaches were tested and noted. Then, it was only in the very last minutes of yesterday's call that the formulation suggested by Thomas first appeared, who seemed to argue it was in line with Avri's suggestion in the previous meeting, and, because of that, that it would have garnered some support. Now, we all saw that the formulation does not reflect what Avri really said, so not even with a stretch of imagination it is accurate to affirm that the decision was arrived at after discussion. The expedite (not to say expedient) manner in which that proposal was presented and assumed to reflect consensus is quite worrying.

In the interest of not having a "minority" statement that would later reveal to be a "majority" statement, I assume the best course of action would be to subject to the scrutiny of the Subgroup what was raised and supposedly decided during the last minutes of yesterday's call, in a transparent way, with clear deadlines for reactions, and only then validate any decision.

Best,

Thiago

________________________________
De: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org>] em nome de Greg Shatan [gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>]
Enviado: quinta-feira, 15 de junho de 2017 18:27
Para: ws2-jurisdiction
Assunto: [Ws2-jurisdiction] Fwd: [CCWG-ACCT] Caption Notes-Recordings-Transcript links for Jurisdiction Meeting #35 - 14 June 2017

Jurisdiction Subgroup Members,

As noted below, after two full meetings devoted to the topic, the Subgroup arrived at a decision (excerpted verbatim from the transcript in the email below).  For convenience, here it is again:

We have concluded that the Jurisdiction sub-group will take California jurisdiction as a base line for all its recommendations, and that the sub-team not pursue recommendations to change ICANN's jurisdiction of incorporation, location of headquarters or seek immunity for ICANN.  With this decision we are recognizing that there is no possibility that there would be consensus for an immunity based concept or a change of place of incorporation.  As such I would establish in the minutes of this call that we focus on the solution that gets most traction.  Recognizing that this does not eliminate, as I think Avri said during last week's call, that we can discuss all issues that might arise during the deliberations.  But that we actually focus on the status quo being California law and place of incorporation. and work on solutions that are founded on this.

Opposition was noted from four participants on the call (including one who left before the end, but had made his position clear.

This decision will now be referred to the Plenary, consistent with CCWG procedures.

With this, I believe that it is imperative that we return to and focus on identifying potential issues, deciding whether these are in fact issues within our remit, discussing those issues and making recommendations for resolving those issues.

Greg

---------- Forwarded message ----------
From: MSSI Secretariat <mssi-secretariat at icann.org<mailto:mssi-secretariat at icann.org>>
Date: Thu, Jun 15, 2017 at 1:46 PM
Subject: [CCWG-ACCT] Caption Notes-Recordings-Transcript links for Jurisdiction Meeting #35 - 14 June 2017
To: CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Cc: "ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>" <ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>

Hello all,

The caption notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #35– 14 June 2017 will be available here:   https://community.icann.org/x/GSDwAw

A copy of the action items and raw caption notes may be found below.

With kind regards,
Brenda Brewer, Projects & Operations Assistant
Multistakeholder Strategy & Strategic Initiatives (MSSI)
Internet Corporation for Assigned Names and Numbers (ICANN)
[cid:image001.png at 01D2E5D5.73E41D50]
Skype:  brenda.brewer.icann
Phone:  1-310-745-1107<tel:(310)%20745-1107>

Raw Captioning Notes
Please note that these are the unofficial transcript. Official transcript will be posted 2-3 days after the call

  *   Word Doc<https://community.icann.org/download/attachments/66068505/Jurisdicton_0614ICANN1300UTC.RTF?version=1&modificationDate=1497462625000&api=v2>
  *   PDF<https://community.icann.org/download/attachments/66068505/Jurisdiction_0614ICANN1300UTC.pdf?version=1&modificationDate=1497462637000&api=v2>

Decisions:

  *   Thomas Rickert for the CCWG-Accountability Co-Chairs, We have concluded that the Jurisdiction sub-group will take Californian jurisdiction as a base line for all its recommendations, and that the sub-team not pursue recommendations to change ICANN's jurisdiction of incorporation, location of headquarters or seek immunity for ICANN.  With this decision we are recognizing that there is no possibility that there would be consensus for an immunity based concept or a change of place of incorporation.  As such I would establish in the minutes of this call that we focus on the solution that gets most traction.  Recognizing that this does not eliminate, as I think Avri said during last week's call, that we can discuss all issues that might arise during the deliberations.  But that we actually focus on the status quo being Californian law and place of incorporation. and work on solutions that are founded on this.

Action Items:

  *   (none)

Requests:

  *   (none)

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