[Ws2-jurisdiction] Agenda and Master List of Proposed Issues for Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30 August 2017
Nigel Roberts
nigel at channelisles.net
Sun Sep 3 23:38:40 UTC 2017
Greg
I find it quite strange that this subgroup appears to be discussing what
the ccNSO should be doing (or not).
It's a fundamental of the relationship between ccTLDs (and ICANN) that
ICANN cannot interfere in ccTLD policy or impose policy on ccTLDs.
Subsidiarity applies - that is to say ccTLD policy is developed at local
level by we, the ccTLDs ourselves.
Only in a very small set of, well defined circumstances may ICANN policy
apply to ccTLDs, and then only to those ccTLDs that are members of the
ccNSO, and only whilst they remain a member. This is the susbtance of
the 2003 Montreal Agreement.
It's only a happy co-incidence that Jordan and I are members of this WG
and can engange. I would caution this group to take no actions that
might be construed as presuming upon the delicate balance between ICANN
and ccTLDs.
Imposing sweeping and untested solutions to hypothetical problems on
ccTLDs from outside will not, I suspect, be that well received, and in
particular the suggestion that our forthcoming ccNSO PDP be coupled with
immunity for ICANN.
Nigel Roberts
On 03/09/17 22:13, Greg Shatan wrote:
> Thiago,
>
> As an inital matter, please keep in mind that, as I just sent to
> Jorge: "This is intended to be a census/list of the proposed issues,
> primarily to confirm that we did not miss any proposed issues."
>
> The notes came from staff and from me. With regard to this major topic,
> can you first confirm whether you have withdrawn the proposed issue
> listed as "“In Rem” jurisdiction of US courts over ccTLDs"? I believe
> that was the case, but hope you can confirm that so that I do not have
> to review the email list.
>
> I've clarified in the Google Doc that the note "Subset of potential
> issue of US Courts generally" applies only to the first bullet point (it
> would apply to the first two bullet points if the "in rem" proposed
> issue is not being withdrawn.) With regard to the note that "There
> appear to be no examples of this," I looked at your linked email but did
> not see any examples. I did see your assertion below and in that linked
> email that "US organs can possibly interfere with ICANN's ccTLD
> management, regardless of whether that has already happened." I have
> added this to the note. If you have examples where this has already
> happened this would be helpful to the overall discussion. I've also
> added to the note to reflect your view that a ccNSO PDP should be
> accompanied by immunity.
>
> With regard to your last point, the third bulletpoint proposed issue
> already referenced enforcement by domestic agencies. I've added more of
> your language there to further clarify the point.
>
> I think this takes your comments into account in editing the document.
>
> Best regards,
>
> Greg
>
>
>
>
>
>
> On Wed, Aug 30, 2017 at 12:27 PM, Thiago Braz Jardim Oliveira
> <thiago.jardim at itamaraty.gov.br <mailto:thiago.jardim at itamaraty.gov.br>>
> wrote:
>
> Dear Greg,
> Dear All,
>
> Without prejudice to further comments we may have regarding how the
> proposed issues have been assembled and are individually portrayed,
> let me react to the "notes" (you?) entered in respect to the "ccTLD
> issue".
>
> It says "Subset of potential issue of US Courts generally. There
> appear to be no examples of this. The ccNSO will have a PDP on
> developing a dispute resolution system, which could address this as
> these are excluded from IRP as requested by the ccNSO (similar to ASO)".
>
> To my understanding, the note is one-sided and expresses the views
> of only a handful of participants, as I explain below. To portray it
> without the reactions and comments that abounded in the list in
> response to these views might inappropriately influence the
> subsequent work of the subgroup on this issue.
>
> For example, one such reaction has been the acknowledgment, even on
> the part of the staunchest opponents to any change to the status
> quo, that US organs can possibly interfere with ICANN's ccTLD
> management, regardless of whether that has already happened. (I
> invite you to look at what I believe is a fair summary of the issue
> here:
> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001496.html
> <http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001496.html>).
> This is without mentioning other reactions and comments challenging
> (or at least nuancing) such assertion as that "there appears to be
> no examples of this", as is portrayed in the note.
>
> The same must be said in relation to the note's suggestion that a
> "PDP on developing a dispute resolution system ... could address
> this". In fact, Jordan's email, who was the person who mentioned the
> PDP work by the ccNSO, never really said that the ccNSO PDP "could
> address" the very issue that US organs can possibly interfere with
> ICANN's ccTLD management. On the contrary, several participants in
> the subgroup concurred that a ccNSO PDP would in fact "complement"
> our work in addressing the issue of US jurisdiction over ccTLDs, and
> this has not been challenged by anyone. (I invite you to look here:
> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001441.html
> <http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001441.html>
> ; see also the language I suggested accommodating the all views
> here:
> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001496.html
> <http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001496.html>,
> all of which I believe should not go ignored in any explanatory note
> to the issue that purports to be neutral)
>
> Finally, on the broader "ccTLD issue", contrary to the original
> proposal and subsequent exchanges in the mailing list, the issue is
> being portrayed in the table as if the only problem identified
> against ICANN's ccTLD management lay in action in "US courts", as an
> expression of US "prescriptive" and "adjudicatory" jurisdiction.
> Here again the "note" is inaccurate, as it states that the issue is
> a "subset of potential issue of US Courts generally". If the issue
> is a subset of anything, it is a subset of US jurisdiction
> generally, which includes US enforcement jurisdiction, which is
> territorial and exclusive in character, and may be exercised outside
> domestic courts, for example through US enforcement and regulatory
> agencies. (In addition to the links above, I also invite you to look
> here
> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001469.html
> <http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001469.html>)
>
> In respect to all other issues more generally, a similar reference
> to "US enforcement jurisdiction" as part of the issues identified is
> lacking, despite the exchanges in the mailing list proposing and
> discussing it.
>
> Thank you for taking the above into account.
>
> Best regards,
>
> Thiago
>
>
>
> -----Mensagem original-----
> De: ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>] Em nome de Greg Shatan
> Enviada em: quarta-feira, 30 de agosto de 2017 01:09
> Para: ws2-jurisdiction
> Assunto: [Ws2-jurisdiction] Agenda and Master List of Proposed
> Issues for Upcoming Jurisdiction Subgroup Meeting at 13:00 UTC 30
> August 2017
>
> All:
>
> I have attached the agenda and the master list of proposed issues,
> collated from all of the recent submissions on the list and in the
> Google Doc. As a first order of business, we need to confirm that
> all submissions have been found and added to this list. Please
> review this before the meeting if possible. Thanks!
>
> I look forward to our upcoming meeting.
>
> Greg
>
>
>
>
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