[Ws2-jurisdiction] REVISED DRAFT OF SUBGROUP REPORT

Fri Oct 13 04:38:30 UTC 2017

Parminder,

The schedule and deadlines were communicated repeatedly in the Subgroup and
the Plenary over the course of recent months (not just "months ago").  I'm
sorry it did not come to your attention, but it was not for lack of
information or publicity.  The most substantial discussion of this was at
and around our August 9 meeting where it took up much of our time and was
the subject of two documents circulated several times to the group, but
there many other times as well.  Indeed I believe I mentioned it on nearly
every call after that.

After that, we dealt with the OFAC and Choice of Law and Venue
recommendations, which had developed traction and broad support in the
group. While it would have been timely then to bring up how and whether we
would consider issues and recommendations beyond these two, but not now,
based on the CCWG deadlines.  And the CCWG deadlines were ones we could not
change.

As for the Report, I don't believe it misleads anybody; nobody else has
made that claim, and that was certainly not the intention.  That said, the
subgroup could consider removing the reference to the discussion on moving
ICANN's hq and incorporation, so that it doesn't seem we're calling that
out in particular.  (We certainly don't have time to do a comprehensive
overview of the work and discussions over the last year. I actually tried
and then I stopped because it was too big of a task and not necessary to
the main task of putting forward the recommendations.  To some extent, the
mention of hq/incorporation jurisdiction is a vestige of that attempt.)

As for consensus, there was only one participant in the call who objected
to the report; there was support or non-objection from all other
participants.  Similarly, on the list, there were only a couple of
objections.  This is entirely consistent with consensus as defined in our
Charter.  The report was put to the list at the earliest possible time
under the circumstances, and then revised drafts sent after that,  It was
mentioned on the penultimate call that the draft report would be coming out
between the calls, and I held off until only an hour before the submission
deadline to start finalizing the report and submitted it just minutes
before the deadline, so as much time as possible was offered then as well.

Best regards,

Greg

On Thu, Oct 12, 2017 at 5:51 AM, parminder <parminder at itforchange.net>
wrote:

>
>
> On Thursday 12 October 2017 12:25 AM, Greg Shatan wrote:
>
> Parminder,
>
> Welcome back to the Subgroup.
>
>
> Thanks Greg.
>
> Meanwhile I must explain that I was held by urgent deadlines on some
> projects and some amount of travel whereby my attention to the group's
> working has been less than I would have wanted it to be. I seek no
> concessions for that, just explaining.
>
> I did see that recs on OFAC and choice of venue were being discussed. I
> had no indication these are the only recs that would be discussed, in the
> face of the fact that customised immunity related possible recs were being
> discussed repeatedly by many of us. I thought that it is after these two
> recs were done with that other possible recs will be taken up, when I
> suddenly saw that the full report was claimed to be ready, and then
> delivered. People who wanted t focus on other recs were not given a proper
> chance at all, and indecent haste was employed to close matters.
>
>
> 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.
>
>
> I would request you to point me to the decision of the sub group laying
> timelines for submitting and considering recs. I dont remember seeing them.
> Even if they existed they were not prominent enough for people to know them
> well, after all these were one of the most important timelines for the
> group. But then do point out where and when they were publicised. Thanks.
>
>
> 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.
>
>
> Yes months ago. But closer to the deadline it is the chairs responsibility
> to make them repeatedly clear -- unless the intention is not to remind
> people who may have forgotten them.
>
>
> 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.
>
>
> But it need not mislead people that the group was discussing change of
> ICANN jurisdiction, when it hardly ever discussed it, and not mention the
> fact that "customised immunity for ICANN" was hotly and repeatedly
> discussed -- despite attempts by process keepers to discourage that
> discussion. To me, it just attempts to make the positions of those who
> wanted some recs in this area look very unreasonable, by mentioning that
> discussions involved changing ICANN's jursidiction, rather than seeking
> "customised immunity" for it under the US IOI Act, which looks so much a
> reasonable proposition. Can you please explain why this was done.
>
>
>
> 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.
>
>
> We will confirm on today's call that the Report as a whole has that same
> support.
>
>
> You got at least two disagreements with the report even before the
> meeting. However, you nevertheless chose to send the report to the plenary
> as a consensus report. Can you please explain this.
>
> Also, it was decided that at an earlier time that all decisions in
> tele-meetings will be put to the elist for some time (esp when the tele
> meeting takes place at a time which past midnight for a very big part of
> the population of the world) before these are considered final. You did not
> do this in the present case, neither gave any warning that you wont be ding
> it.
>
> parminder
>
>
>
> 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>
> 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/135c03wFSIlz1Lqdv6Tte8
>> sw7tMinsQEgy0CoNtRXT4Y/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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