[Ws2-jurisdiction] Question Presented

Mon Jun 19 20:59:45 UTC 2017

I have been lurking on this list all along, reading every email, and though
I am not sure I have ever said this in the past 15 years knowing Milton, I
agree with him completely.  The scope and substantive discussions have been
intermingled, should be separated, and we should all see the clear
consensus at least on this list that there is no better alternative to the
one devised first by the community in the late '90s, and again by the
community in the past few years.  There really is no real debate on this
list, despite the persistence of a few people on this list.

Of course, this group may not be the ultimately definitive decision-makers,
but to the extent we have input into the process, the result of this group
seems clear to me.  And so we need to report it, and be done with it.
Other in-scope and subsidiary issues were the real purpose of this group,
not the macro issue.  So let's get on with the other things we should be
talking about.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.com

On Mon, Jun 19, 2017 at 12:16 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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>
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