[Ws2-jurisdiction] [CCWG-ACCT] Jurisdiction Subgroup. Draft Report. Statement of Brazil. Annex. To be annexed to the draft report. For consideration by the CCWG.

Sun Oct 15 05:56:31 UTC 2017

Thiago,

Thank you for your email.  As an initial matter, I am surprised to see that
the cover note to your minority report (pp. 1-2 of the PDF) is nothing more
than the email that Benedicto sent to the Subgroup list several days ago.
I assume that since it is only a cover note to the minority report, it is
not intended to be considered for inclusion in the Subgroup Report.

Nonetheless, the cover note does raise a number of issues (before we even
get to the Minority Report): First, I assume when you refer to the "Chair,"
you mean the rapporteur of the Subgroup, and not the Chairs of the CCWG.
In either case, you mean me. Second, I strongly disagree with (and I am
quite taken aback by) this statement:

Finally, Brazil objects to the portrayal of the report as a consensus
document, which we understand is due to an incorrect consensus-level
designation made by the Chair

What is the origin of this "understanding"? How did you come to
"understand" this?  If this is your contention (or worse yet, the
contention of the Government of Brazil) then come out and say it, rather
than citing some vague "understanding."

What is the basis for your contention that I made an "incorrect
consensus-level designation"?  That is a very serious allegation to lay
before the Plenary without offering any support for it whatsoever.

Our charter defines "consensus" as "a position where a small minority
disagrees, but most agree."

We had one objection on our last call, which I'm sure you know, since you
were on the call and made that objection. (Of course, if this is
Benedicto's statement, I suppose he can be forgiven in a sense for not
knowing exactly what happened on the call.)  We had one other objection on
the email list. I consider two objections (or three, if we count you and
Benedicto separately) out of 73 participants to be a "small minority."  I
can't see how it would be "understood" to be otherwise.

If the basis is that I didn't phrase the finding of consensus with exactly
the right words, that is picayune proceduralism.  ICANN is not a place
where "magic words" need to be invoked.  It's the substance that matters,
and I stand by the substance of my consensus determination (and I note that
in spite of Benedicto's email to the Subgroup several days ago, no one else
joined this view.)

There is also an inherent illogic in your position.  If the consensus
determination was incorrect, then no Subgroup report should be submitted to
the Plenary, and thus no need and no place for a minority report.  On the
other hand, if the report is properly submitted, then it would be
appropriate to submit a minority report, but your accusation would be
baseless.  At the risk of using an idiomatic phrase, you can't have your
cake and eat it too.

I am also appalled by the grave accusation that "many views and
contributions ... were systematically disregarded or ignored" during the
work of the Subgroup. That is simply not true, and appears to be an attempt
to undermine the legitimacy of the Subgroup and be extension, the CCWG.
Indeed we probably spent an inordinate amount of time hearing out and
considering the views and contributions of various participants (on a
multitude of matters both procedural and substantive).

I have to say that I find it quite inappropriate to bring this all up in a
statement to the full CCWG, without any attempt to resolve the issue within
the Subgroup or seeking the assistance of the Co-Chairs.  It seems
calculated more to score points than to solve problems.

As for the mandate of the Subgroup, this was discussed at great length in
the Subgroup (largely before you joined).  Suffice it to say that there
were many who did not take such an expansive view of the mandate as you put
forth.  There are many other concerns raised by this cover note, but this
email is long enough as is.

With regard to the Minority Report itself, it is critical to note that this
is the first time that I or any member of the Subgroup has seen this
document, though I recognize bits and pieces from some of your
interventions.  I will also note that the second set of Recommendations in
our Subgroup Report benefited greatly from one of our participants pulling
together a first draft from various interventions and submissions.  If this
Minority Report had been submitted to the Subgroup as a draft
recommendation on a timely basis, perhaps that would have helped the
Subgroup in a similar fashion -- though (based on the discussions in the
Subgroup) it would be presumptuous to leave the impression that this would
have resulted in a third recommendation.  In any event, it is quite
unfortunate that this was not done, and the choice was made to submit it to
the Plenary instead.

This Minority Report also seems to misunderstand the status of a Minority
Report.  It is a statement of the viewpoint of those who did not join the
consensus.  It is not something to be submitted for debate and decision by
the Plenary as an ex post facto amendment of the Subgroup Report.  This
would subvert the very structure of Work Stream 2.  A Minority Report is
merely a non-consensus record of the position of one or a small group of
participants.

If there were time to do so, I would suggest redirecting this to the
Subgroup for consideration as a possible recommendation by the Subgroup.
That would at least be procedurally and substantively appropriate, if not
temporally appropriate.  But perhaps there is a reason this is being
submitted here and now, as a "Minority Report" -- but uncontroverted by any
part of the Subgroup Report or by any of the work of the Subgroup.  The
Plenary should understand that these viewpoints, and considerably different
viewpoints with regard to these concepts, were discussed at considerable
length in the Subgroup.  Minority reports typically dissent from
conclusions in the Subgroup Report, thus allowing readers to see both sides
of an issue.  This, of course, does no such thing.  Perhaps there needs to
be a counterpoint prepared, representing the other viewpoint or viewpoints
on these topics.  That would at least be a more fair representation of the
work of the Subgroup as a whole.

I will leave it to our Co-Chairs to decide the next steps with regard to
this submission.

Best regards,

Greg

On Sat, Oct 14, 2017 at 9:13 PM, Thiago Braz Jardim Oliveira <
thiago.jardim at itamaraty.gov.br> wrote:

> Dear all,
>
> On behalf of the Brazilian Government, I hereby submit the "Statement of
> Brazil" and its annex, which are to be annexed to the draft report of the
> jurisdiction subgroup, submitted on 11 October 2017, for consideration by
> the CCWG plenary.
>
> Best regards,
>
> Thiago
>
>
>
> ------------------------------
> *De:* ws2-jurisdiction-bounces at icann.org [ws2-jurisdiction-bounces@
> icann.org] em nome de Greg Shatan [gregshatanipc at gmail.com]
> *Enviado:* quinta-feira, 12 de outubro de 2017 23:29
> *Para:* accountability-cross-community at icann.org
> *Cc:* acct-staff at icann.org; ws2-jurisdiction
> *Assunto:* Re: [Ws2-jurisdiction] Jurisdiction Subgroup Draft Report for
> CCWG-Accountability Plenary Review
>
> All,
>
> One of the Subgroup members pointed out a minor editing error in the
> document.  On pages 13-14, there were several mentions of the RAA, when in
> fact the language quoted and discussed was from the ICANN Terms and
> Conditions for Registrar Accreditation Application.  (The reference was
> correct in the Executive Summary.)  This has now been fixed in the attached.
>
> Greg
>
> On Thu, Oct 12, 2017 at 10:10 PM, Greg Shatan <gregshatanipc at gmail.com>
> wrote:
>
>> All,
>>
>> Some minor formatting errors crept into the Report when it was converted
>> from Word to PDF.  A new PDF of the report is attached. I've checked each
>> page to confirm that the formatting errors were resolved.
>>
>> Thank you to Jorge Cancio for catching this problem!
>>
>> Greg
>>
>> On Wed, Oct 11, 2017 at 7:53 PM, Greg Shatan <gregshatanipc at gmail.com>
>> wrote:
>>
>>> All,
>>>
>>> I am pleased to submit the Draft Report from the Jurisdiction Subgroup
>>> for consideration by the CCWG-Accountability Plenary.
>>>
>>> It is my understanding that a minority viewpoint is expected to be
>>> submitted.  In the interests of time, this will be submitted to the Plenary
>>> separately from the Draft Report.
>>>
>>> *During the preparation of the OFAC Recommendation, the Subgroup
>>> considered an email where a registrar declined to do business with a
>>> potential reseller, based on the registrar’s policy of not doing business
>>> with people with Iranian passports.  The Subgroup also learned that this
>>> registrar, which had been registering domains for a number of Iranian
>>> nationals, refused to continue to do business with them.  The Subgroup has
>>> concluded that, to the extent these instances are related to OFAC, the
>>> concerns raised by these instances are adequately covered in the
>>> Recommendation already without any additional changes.  This is not in any
>>> way a comment on the validity of these particular concerns.  The Subgroup
>>> will consider creating "stress tests" based on these scenarios.*
>>>
>>> I look forward to the Plenary's reading of the Draft Report.
>>>
>>> Best regards,
>>>
>>> Greg Shatan
>>> *Rapporteur*
>>>
>>
>>
>
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>
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