[Ws2-jurisdiction] Question Presented

[Mueller, Milton L]

Sorry if I missed the boat, Greg, but I did review the emails on the list fairly extensively before commenting, and it sure looked like we were having a scope debate rather than a substantive debate. It is possible that the initial framing as a scope debate triggered a lot of responses and emotions that the overall dialogue never got beyond.

One of the problems with framing it as scope is that it lets those who want to argue for a change in the jurisdiction/place of incorporation off the hook. They can make perfectly reasonable and convincing arguments that it is not out of scope, even if they are unable to demonstrate a clearly superior alternative to California law that is compatible with the WS1 accountability mechanisms.

Let’s get out of that rut.

I think the subgroup has done more extensive quality work than people who are watching it day to day realize.


·         We have clarified the set of problems we face with the layer model;

·         We have reviewed most of the relevant court cases (still ongoing);

·         We have identified specific problems with U.S. jurisdiction (OFAC and similar US-imposed sanctions);

·         We have discussed the US Immunities Act, and with one or two exceptions agreed that it would not be a good path to take

·         We have discovered that those who most want to move it out of California cannot name or identify a specific, superior location/jurisdiction, but must instead appeal to “international jurisdiction,” which means a new international treaty and new organizational arrangement that would require re-doing the entire transition process.

Let’s reach consensus on two simple points:

1.       There ARE problems of accountability caused by U.S. jurisdiction, notably around OFAC sanctions

2.       There is no reasonable prospect of improvement to come from uprooting ICANN, completely changing its legal status and moving to an unknown and as yet undeveloped alternative

From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Monday, June 19, 2017 12:44 PM
To: John Laprise <jlaprise at gmail.com>; Mueller, Milton L <milton at gatech.edu>; ws2-jurisdiction <ws2-jurisdiction at icann.org>
Cc: acct-staff at icann.org
Subject: Re: [Ws2-jurisdiction] Question Presented

Milton,

I actually agree with you, up to a point.  The slide you refer to was a strawman and a jumping-off point for discussion.  By the second call, last week, we had moved away from that slide and from discussing the issue in terms of scope.  The CCWG Co-Chairs instead framed the issue around the question "what will get sufficient traction in the group" vs. subjects that will not get sufficient traction, and thus would not lead to a consensus recommendation.

However, I don't think this was an instance of anyone preempting a discussion, much less dishonestly.  As noted, no issues have been foreclosed by the Co-Chair's decision, which is aligned with your point #2 -- the "lack of traction" for recommending changes to ICANN's corporate status. I hope that everyone is interested in substantive debate, and I hope to see plenty of it in this group in the coming weeks.

Best regards,

Greg

On Mon, Jun 19, 2017 at 10:41 AM John Laprise <jlaprise at gmail.com<mailto:jlaprise at gmail.com>> wrote:
+1

Best regards,

John Laprise, Ph.D.
Principal Consultant

http://www.linkedin.com/in/jplaprise/



From: 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>] On Behalf Of Mueller, Milton L
Sent: Monday, June 19, 2017 9:40 AM
To: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>; ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>
Cc: acct-staff at icann.org<mailto:acct-staff at icann.org>
Subject: Re: [Ws2-jurisdiction] Question Presented

Please pardon my late intervention. We were presented with this question:


Question: Is considering or recommending changes to ICANN's status as a not-for-profit California corporation within the scope of the Subgroup?

Two things seem obvious to me:

  1.  The issue IS within the intended scope of the subgroup, and

  1.  There is overwhelming consensus AGAINST recommending changes to ICANN’s status as a nonprofit California public benefit corporation.

It seems to me that most of the debate is confusing issue #1 with issue #2. The entire discussion has not developed any real alternative, much less a clearly superior one, to California jurisdiction. The identified problems with US jurisdiction (mainly OFAC) can be addressed without moving ICANN’s place of incorporation. So let’s stop trying to dishonestly pre-empt resolution of the jurisdiction issue by ruling certain discussions “out of scope.”  Let’s resolve it honestly by developing and acknowledging consensus around the fact that other than the meaningless mirage of “international jurisdiction” there is no better framework within which to work than California law.

The debate about scope, in other words, is a diversion from the substantive issue, and I wish the chairs and the Americans in the subgroup would stop trying to pre-empt substantive debate with scope debate.

I will not be in Johannesburg so I hope people who agree with me can take this perspective into the f2f meeting.

Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology




From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Thursday, June 8, 2017 9:29 AM
To: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>
Cc: acct-staff at icann.org<mailto:acct-staff at icann.org>
Subject: [Ws2-jurisdiction] Question Presented

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