[Ws2-jurisdiction] Question Presented

Mon Jun 19 19:40:44 UTC 2017

Milton,

Once again I more-or-less agree with you in the initial part of the email,
but with exceptions. At some point, the discussion turned away from a
"scope" framing, but not really until the second call.  So the emails prior
to the second call were largely hung up on scope, and those afterwards were
hung up on procedure.

I also agree we have done a lot of good work, but much of it is still in
midstream.  We will need to review the prior draft documents and see what
we can bring into a deliverable.  I think the OFAC discussion is also still
mid-stream and needs some focus and rigor to bring it forward, and see if
we get agreement that it is not merely a "proposed issue" but an "issue."
 (Not something to pick up in this email thread, but definitely to be
picked up.)

On the other points, as rapporteur I express no personal opinion, but I do
believe that the bulk of the group would be in agreement with your
assessment, at least within the remit of this CCWG-Accountability.

Greg

On Mon, Jun 19, 2017 at 3:16 PM, Mueller, Milton L <milton at gatech.edu>
wrote:

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