[Ws2-jurisdiction] RES: ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition

Sat Sep 2 19:21:51 UTC 2017

Thiago, I completely disagree with your depiction of my issue proposal, and characterizing it as an "admission" is, at best, disingenuous. You also appear to be implying that my proposal is outside of our remit (because, apparently unlike you, I did not "abide[] by the guideline (proposed by the rapporteur) to identify as specifically as possible what are ICANN's activities that should be immune from US jurisdiction") which I strongly disagree with. I will say that I agree with your statement on this list on 8/21 that "we should be in the business of recommending solutions that satisfy ICANN's "Accountability" goals as defined under the Charter of W2", and I am putting my proposal forward to do exactly that based on the history and realities off ICANN and accountability - not hypotheticals.

Brian

Brian Scarpelli
Senior Policy Counsel
517-507-1446 | bscarpelli at actonline.org
ACT | The App Association

-----Original Message-----
From: Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com] 
Sent: Saturday, September 2, 2017 10:52 AM
To: 'Thiago Braz Jardim Oliveira' <thiago.jardim at itamaraty.gov.br>; Brian Scarpelli <BScarpelli at actonline.org>; ws2-jurisdiction at icann.org
Subject: RE: [Ws2-jurisdiction] RES: ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition

No Thiago ... Brian can speak for himself, but I support the proposal simply as a counterweight to your incessant, obsessive, unreasoning attempts to expand the topic beyond what it supports.

Please do not take Brian's effort as a concession -- it is simply a way of saying you are wrong ... yet again.  Nice try.

Paul

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
O: +1 (202) 547-0660
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VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key:
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-----Original Message-----
From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Thiago Braz Jardim Oliveira
Sent: Friday, September 1, 2017 11:15 AM
To: 'Brian Scarpelli' <BScarpelli at actonline.org>; ws2-jurisdiction at icann.org
Subject: [Ws2-jurisdiction] RES: ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition

Dear Brian,
Dear All,

Thank you for proposing an issue that purports to recognise the positive effects of ICANN's subjection to US jurisdiction.

That you proposed the issue is very significant because, while we may disagree as to whether US jurisdiction impacts positively or negatively ICANN's accountability mechanisms and operations, there is here the admission that US jurisdiction is indeed unique in impacting ICANN's accountability mechanisms and operations, so much that it deserves to be singled out.

On our part, as we have been proposing issues for the subgroup to consider, we have abided by the guideline (proposed by the rapporteur) to identify as specifically as possible what are ICANN's activities that should be immune from US jurisdiction, so that ICANN be no less accountable to other countries than it is to the United States and US stakeholders.

But since in this subgroup we are subject to the same requirements, and also bound by a duty to make best efforts to build consensus, let me follow-up on my previous call on you and others, as I expressed in an e-mail also directed to the rapporteur, which remains unanswered to this day. (here is the email:
http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001339.html)

In an effort to build consensus, it will be critical that the participants who support ICANN's subjection to US jurisdiction identify and explain which of ICANN's activities they believe should necessarily continue to be subject to the normal operation of national laws and tribunals.

This way, we could ensure that all concerns are properly addressed, and also that these concerns do not prevent the subgroup from recommending solutions that will enhance ICANN's accountability towards all stakeholders, as defined in the NETmundial multistakeholder statement, which is expressly relied on in the Charter of W2 to define ICANN's accountability goals.
Currently, ICANN's accountability mechanisms do not meet these goals, for ICANN is more accountable to one certain country and its citizens than it is to others. 

Best regards,

Thiago

-----Mensagem original-----
De: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] Em nome de Brian Scarpelli Enviada em: domingo, 27 de agosto de 2017 21:24
Para: ws2-jurisdiction at icann.org
Assunto: [Ws2-jurisdiction] ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition

(with apologies for sending this to an incorrect email the first time just before the deadline of 12p UTC)

WS2 Jurisdiction Subgroup colleagues - my issue contribution is below. I have also entered this into the WS2 Jurisdiction issue spreadsheet (MailScanner has detected definite fraud in the website at "docs.google.com". Do not trust this website:
https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i60
Mk-7al4/edit#gid=0
<https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6
0Mk-7al4/edit#gid=0> ).

Best regards,

Brian Scarpelli
Senior Policy Counsel
517-507-1446 <tel:517-507-1446>  | bscarpelli at actonline.org <mailto:bscarpelli at actonline.org> ACT | The App Association

________________________________

TITLE: Positive effect of California not-for-profit incorporation and headquarters location on ICANN accountability mechanisms and operations. 

ISSUE: It is within the remit of Work Stream 2's Jurisdiction Subgroup to build on Work Stream 1, to consider the effect of ICANN's current jurisdictional set-up (in particular, California not-for-profit law) on ICANN operation and accountability mechanisms and to find ways to enhance ICANN's accountability to the multistakeholder community. Work Stream 2's Jurisdiction Subgroup has discussed of a wide range of issues (some within the remit of the Subgroup, and others outside), and a number of subgroup members have brought forward scenarios in which jurisdiction(s) may affect ICANN, both positively and negatively. This discussion has been fruitful not only in exploring edge use cases, but more importantly in addressing whether and how the existing legal status of ICANN as a California nonprofit public benefit corporation assists ICANN in operating in an accountable manner.

The mechanisms developed in Work Stream 1 are based on ICANN's status as nonprofit public benefit corporation incorporated in California and subject to US and California state laws. These mechanisms take advantage of specific features of California law, such as the Sole Designator concept. Work Stream
1 also recognized that a key existing accountability mechanism was the fact that ICANN is subject to U.S. federal and laws and state and federal court jurisdiction. Furthermore, ICANN is set up as and operates in the manner of a California non-profit and has done so for nearly 20 years. In the absence of NTIA's stewardship role over the management of the DNS, maintaining these new and existing accountability mechanisms, and ICANN's stability, is of paramount importance.

Changing ICANN's jurisdiction would undermine these new and existing accountability mechanisms, the ability of ICANN to operate in an accountable manner, and ultimately ICANN's stability. Even the ongoing debate over ICANN's headquarters location and place of incorporation has the effect of bringing ICANN's accountability mechanisms into question. At the very least, this debate has the effect of using up significant multistakeholder resources better applied to refining the work of Work Stream and ICANN's overall accountability.

PROPOSED SOLUTION: The Jurisdiction Subgroup should explicitly affirm in its recommendations that:

*	ICANN's current jurisdiction (i.e., California as the state of
incorporation and headquarters location) is a critical and integral part of ICANN's system of accountability and its operations.
*	Subjecting ICANN to the laws of and jurisdiction of courts in the
United States and elsewhere (including but not limited those jurisdictions where ICANN has operations) are fundamental and very important accountability mechanisms, which allow third parties to hold ICANN accountable and ensure that ICANN abides by the rule of law.
*	The accountability mechanisms of Work Stream 1 use and depend on
maintaining ICANN as a corporation headquartered and incorporated in California.
*	Therefore, modifications to the core jurisdictional concepts of
ICANN would be detrimental to ICANN's accountability. In particular, the CCWG's work in Work Stream requires Work Stream 2 to maintain the current jurisdictional concepts so that the new mechanisms can be fully implemented and operate unhindered for a substantial period of time. As such, Work Stream 2 should confirm and ratify that the current jurisdictional make-up of ICANN is a fundamental part of ICANN's accountability mechanisms.

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