[Ws2-jurisdiction] REVISED DRAFT OF SUBGROUP REPORT
parminder
parminder at itforchange.net
Thu Oct 12 10:04:42 UTC 2017
On Thursday 12 October 2017 12:25 AM, Greg Shatan wrote:
> Parminder,
>
> Welcome back to the Subgroup. If you had been participating in the
> Subgroup or Plenary recently, you would know that the time for
> considering and submitting recommendations for consideration by the
> group has passed some time ago. The deadline for any Subgroup to
> submit a draft report *to the Plenary* that could be part of the CCWG
> Report is*23:59 UTC today*. This has been clearly communicated for
> some months now.
>
> This report is not intended to be a full record of all the group's
> deliberations. Its focus is the recommendations that have reached
> consensus (i.e., broad support, but not necessarily unanimity or lack
> of objection) in the Subgroup. As such, it does not generally reflect
> discussion of items that did not garner broad support.
>
> You can review the Subgroup's emails and meetings to see how we
> arrived at these two recommendations as being the ones to be included
> in the Subgroup's report. This was based on identifying these
> recommendations as ones where the group could find common ground and
> where concrete recommendations could be made. Based on the meetings
> and emails over the last several weeks, I am fairly confident that
> these two recommendations have the consensus support of the Subgroup.
I disagree with (1) not giving an explicit and unreserved rec for ICANN
to seek general license of exception for DNS policy and implementation
activities, and (2) with the observation in the part on choice of law/
venue that this group is in no position to recommend to ICANN to amend
its base RA or RAA agreements.
About the latter, there seems to be clear lack of agreement and common
understanding among us on the very remit of the group. This is a cross
community group and it should be able to give recs that affect any
authority or body in or connected to ICANN... That is the very purpose
of such a group... Of course every thing would be under the authority of
an existing permanent body committee etc, whereby then any community WG
would not be able to make any rec at all... I completely do not
understand it.
Meanwhile, even as, in the choice of law/ venue part, the report says
that "this Subgroup ... cannot .... require ICANN to make amendments to
the RA or the RAA", in the OFAC related sections it holds that "the last
sentence (of RAA agreement) should be amended to require ICANN to apply
for and use best efforts to secure an OFAC license ......". Is this not
a contradiction? Can someone please explain this to me. Thanks.
parminder
> We will confirm on today's call that the Report as a whole has that
> same support.
>
> However, if the Report does not have consensus support of the
> Subgroup, we will have no choice but to not submit the Report.
>
> Best regards,
>
> Greg
>
> On Wed, Oct 11, 2017 at 2:27 PM, parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
> Since there is no response on how and when was it decided to chose
> only OFAC and choice of venue as the issues to give recs on, and
> how the issue of possible immunity from US jurisdiction excluded
> from this exercise, i want to put it on record before today's
> meeting (which I will not be able to attend) that I, and perhaps
> others, would like to put up a draft rec on the immunity issue for
> the group.... It is up to the group to accept it or not.... If it
> is unable to reach consensus it is possible that I, and perhaps
> others, may want to put it as a dissenting view, that will be
> requested to be attached to the group's report. Please let me know
> the process and time line for submitting (1) draft rec on
> customised immunity for ICANN, (2) in case there is no consensus
> on it. to give a dissenting view.
>
> Also, I disagree with the manner that the current report does a
> very partial job of the mandate given to it, cherry picking one or
> two aspects of the mandate and ignoring other, without a due and
> clear process. I also disagree with the manner in which its
> narrative glosses over the major discussions ans dynamics in the
> sub group, especially around the issue of US gov's jurisdiction
> and possibilities of seeking customised immunity under the US IOI
> Act..... It is most astounding how the report manages to
> completely avoid even a mention of the immunity issue which was
> hotly argued and discussed by the sub group, and on which so many
> members had such strong views.
>
> It can hardly be said that there is a consensus on the group's
> outputs as mentioned in the draft report...
>
> parminder
>
>
> On Wednesday 11 October 2017 06:52 PM, parminder wrote:
>>
>>
>>
>> On Wednesday 11 October 2017 03:40 AM, Greg Shatan wrote:
>>> All,
>>>
>>> I have received no comments on the Draft Subgroup Report.
>>
>> Greg, I was able to see it only just now and have the following
>> quick comments before today's meeting. Will give more comments
>> later on
>>
>> At 2 places the report notes that the sub group got into
>> discussing to topic of of "changing ICANN’s headquarters or
>> jurisdiction of incorporation".
>>
>> As I have previously mentioned on this list, I recall no real
>> discussion at any time on actually "changing ICANN's headquarters
>> or jurisdiction of incorporation". What did happen were repeated
>> discussions on possibility of seeking immunity for ICANN under
>> the US's International Organisations Immunity Act... Why dont we
>> mention the actual discussion that took place in the group --
>> however inadequately, despite many members repeated requests for
>> a proper discussion -- then put in what was hardly discussed?
>>
>> Next, the report says that it chose to priortize the two issues
>> of OFAC and choice of jurisdiction in contracts among many
>> possible issues. I just want to be reminded which decision it
>> refers to, and taken when. In any case, I disassociate myself
>> from any such decision. But please do point me to the relevant
>> decision of the sub group.
>>
>> I am also not clear about
>>
>> "The Subgroup understands that it cannot require ICANN to make
>> amendments to the RA or the RAA " (said with regard to choice of
>> jurisdiction recs)..... Why so? Sorry if this has already been
>> discussed, but fell be grateful if the reason is explained to me.
>>
>> I do also note that there is really no recommendation with regard
>> to choice of jurisdiction issue but just a series of musings.
>> This fact that no rec is being made in this regard should be very
>> clearly stated.
>>
>> So, finally the only substantial thing I understand the group to
>> be saying is that it wants ICANN to be more specifically clear
>> that it will try to seek OFAC licence for all otherwise
>> legitimate cases, and that ICANN should explore (only explore)
>> general OFAC licences -- which rec is also made with too much
>> defensiveness.
>>
>> And it wants to say nothing on jurisdictional immunity issue, in
>> fact completely censor the issue out of the report, even in parts
>> which just factually deal with discussions that happened in the
>> group.
>>
>>
>> More later,
>>
>> thanks, parminder
>>
>> PS: Excuse me for the hurried comments, I am at some place right
>> now where I am very constrained in time.
>>
>>
>>
>>>
>>> I have added a summary of the Choice of Law and Choice of Venue
>>> Recommendation to the Executive Summary, based on the current
>>> state of that Recommendation in the Google doc.
>>>
>>> The Draft Report is attached in Word and PDF versions. The
>>> Google doc is (still)
>>> at https://docs.google.com/document/d/135c03wFSIlz1Lqdv6Tte8sw7tMinsQEgy0CoNtRXT4Y/edit?usp=sharing
>>> <https://docs.google.com/document/d/135c03wFSIlz1Lqdv6Tte8sw7tMinsQEgy0CoNtRXT4Y/edit?usp=sharing>
>>>
>>> I will circulate that Recommendation next, in Word and PDF
>>> versions, as it now stands.
>>>
>>> These documents will be discussed on tomorrow's call. An agenda
>>> will be circulated shortly.
>>>
>>> Greg
>>>
>>>
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>>
>>
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