[Ws2-jurisdiction] REVISED DRAFT OF SUBGROUP REPORT

Fri Oct 13 04:50:15 UTC 2017

Parminder,

Thank you for providing your position on the two recommendations.  The
point you mentioned were substantially discussed on the calls and on the
list, and the results are reflected in the report.  As for  views on the
scope and reach and supremacy of the CCWG over all other structures and
their specific remits, I think there is a common understanding -- just one
you don't agree with. As always, you are entitled to your opinion, of
course.

Finally, thank you for catching an editing error in the Report.  The
references to the RAA on pages 13-14 should have been references to ICANN's
Terms and Conditions for the Registrar Accreditation Application (the
reference was correct in the Executive Summary).  As such, this is ICANN
the Organization's policy, which is well within our remit to make specific
recommendations about.  I believe that takes care of your final concern.

Best regards,

Greg

On Thu, Oct 12, 2017 at 6:04 AM, parminder <parminder at itforchange.net>
wrote:

>
> 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>
> 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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>
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