[Ws2-jurisdiction] RES: ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition
Arasteh
kavouss.arasteh at gmail.com
Mon Sep 4 07:11:05 UTC 2017
Greg
Thank you very much for your clear
and fair reply to the concerns raised by Parminder .I appreciate that , contrary
To few distinguished colleagues which unfortunately use some hard and occasionally painted terms, your tone and presenting counter argument is quite soft, friendly, objective and constructive,
I wish to remind ourselves that we need to be prudent when a particular adjective is used to describe the "immunity" as each of the adjective may have its own meaning and scope.
This is a delicate matter and to be dealt with quite cautiously
Regards
Kavouss.
Sent from my iPhone
> On 4 Sep 2017, at 11:22, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> Parminder,
>
> Thank you for your email, which rather surprised me. I have not attempted any "creeping shifts" from the rules of the group. Rather, my intent has been to guard against such shifts (whether creeping or leaping).
>
> I not your concern with my use of the term "general immunity" (which I have now ascertained is a term that appears to be used only by you on our mailing list). I don't see any substantive difference between "blanket immunity" (the term used at ICANN59) and "general immunity." I was using the two terms interchangeably, as I think others were. This is contrasted with "partial," "relative," "limited," "tailored" or "customized" immunity (which Thomas clarified can still be put forth). If you believe that there is a substantive difference in meaning between "general" and "blanket" immunity, and that there is no substantive difference between "general" immunity and "partial", etc. immunity, please explain, and we can see how others regard this view.
>
> As for whether the "activities [that] should be immune" can be expressed as a positive list or a negative list: We have consistently discussed the idea that recommendations should be narrowly tailored to deal with the issue that the group decides we should try to remedy. To me, this naturally points to recommending a form of immunity (if we do so at all) that is tailored to immunize only those activities that the group decides should be immune, which in turn points to a "positive" list. Terms like "partial," "relative," "limited," "tailored" or "customized" immunity also seem to point to a "positive" list. This seems like a logical conclusion to me. Perhaps it is open to a different interpretation, and we could ask the group for their views on that point.
>
> However, our process is now focused on taking our list of proposed issues and deciding on a group of issues that are within our remit and "will result in recommendations that achieve consensus in the Subgroup." So, what's most important now is that recommendations be put forth in a manner that are most likely to lead to consensus, not getting bogged down in discussions of how recommendations should be phrased. If you (or anyone else) think you have a way to propose a recommendation that will achieve that result, that should be a sufficient guideline. The more directly we go through our process, the better off we are.
>
> So, a discussion of whether "general immunity" is or isn't "blanket immunity", or is or isn't "partial", etc. immunity, and whether proposed immunities should be expressed positively or negatively, might be fascinating, it is unlikely to get us to our goal. What really matters is whether any particular recommendation (including any particular recommendation of immunity) is going to achieve consensus. Let's try to get to that discussion as directly as possible.
>
> Greg
>
>
>> On Sun, Sep 3, 2017 at 10:50 AM, parminder <parminder at itforchange.net> wrote:
>>> On Sunday 03 September 2017 12:38 PM, Greg Shatan wrote:
>>> SNIP
>>
>>> This is related to the decision that this group would not further explore "general" immunity as a remedy to any issue, but only limited or qualified immunity. This specificity would cover the activities that should be immune, the laws and elements of "jurisdiction" that would be subject to that immunity (ability to sue and be sued, legislative, regulatory, etc.), and the jurisdiction(s) that would be subject to that immunity. It would be also be helpful to have some consideration of how this immunity would be achieved; while not necessary, it may help the group determine whether such a proposed remedy is practical and feasible.
>>
>> Greg,
>>
>> I really wish you would stop this creeping shifts in what the rules of the group are, as in supposed to have been agreed by it, rules which were in the fist instance created through very questionable means. I must at this stage formally protest at the manner that this group's processes and chairship is being conducted.
>>
>> Nowhere did we agree to what you present above as the decision of the group. We never agreed to *not* exploring "general immunity" . The language used was "blanket immunity". And here you are unilaterally adding very significant qualifications to the concept of immunity which were never discussed or agreed to. These are completely unacceptable. Like the requirement for mentioning clearly a positive list of "what activities should be immune" rather than a negative list of what should not be covered under immunity. (In fact the concept of immunity is normally about negative and not positive lists. Specific cases are generally covered under the concept of "wavier".)
>>
>> On what basis and what authority do you make such interpretations, which you too know completely change the complexion of the game, when the IOI Act is a part of many people's proposals, whether we end up agreeing on it or not? Pl do explain clearly. Thanks.
>>
>> Below is from the chair's report of the f2f meeting at Johannesburg.
>>
>> “Held a session on the Jurisdiction sub-group’s recent discussions regarding the possibility of changing the location of ICANN’s headquarters or creating a blanket immunity for ICANN. In this session it was confirmed that it was unlikely there would be consensus in the CCWG for any recommendation that involved changing ICANN’s headquarters’ location or jurisdiction of incorporation or creating a blanket immunity for ICANN. .” (emphasis added)
>>
>> In fact, on the same day, 27th June, on the CCWG plenary list, I disagreed with the observation here that there were "any recent discussions" on "creating blanket immunity", insisting that no discussion involved blanket immunity but only customised immunity.
>>
>> This "decision" in the f2f meeting formalised the earlier decision by chair of CCWG following an online meeting of the jurisdiction sub-group, which was considered by many to be very controversial. In response to many protests, CCWG chair provided a clarification on 23rd through an email to the sub group elist. Allow me to quote that clarification.
>>
>> The co-chairs established that
>>
>> 1. Relocalization of ICANN to another jurisdiction and
>> 2. Making ICANN an immune organization
>>
>> were suggestions that did not get sufficient traction to be further pursued.
>>
>> I did not speak to the question of partial immunity.
>> (quote ends)
>>
>> Clearly, "partial immunity" was not excluded, which is very different from what you are now claiming the decision was.
>>
>> I responded by saying (25th June) that the chair was now changing what he said earlier and quoted him to have said " there was no possibility that there would be a consensus on an immunity based concept", and took exception to such shifts by the chair.
>>
>> For this I was chastised by Avri (25th), who wrote "
>> "But he corrected his statement after being reminded of the issue of partial or tailored immunity. I am grateful he did so. What is important to me is that it was corrected. There are so many issues, sub issues and nuances, that I do not expect any chair to get it right all the time. What I do expect is for corrections to be made when necessary. And that is what, I believe, happened."
>>
>> (quote ends)
>>
>> This correction and the spirit behind it, and the reprimand about my post facto nitpicking, was enthusiastically agreed to Farzaneh and Paul.....
>>
>> It is evident from all this that the "decision" was to exclude only "blanket immunity" and not any other kinds of possible immunities. Your new interpretations is therefore entirely novel, and very problematic. We cannot keep working like this.
>>
>> parminder
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>>
>>> With regard to Thiago's email of August 19 (which I'll note was addressed to "Dear Greg, Dear All"), I believe that lack of response by the group indicates that the idea expressed there gained no traction with the group. For clarity, I'll put it below, in its entirety:
>>>
>>> Dear Greg,
>>> Dear All,
>>>
>>> Mindful of the constraints of time, and with a view to advancing towards a final report around which consensus might form, may I request that participants who are generally opposed to granting ICANN immunity provide examples of ICANN’s activities that they believe should continue to be subject to the normal operation of national laws?
>>>
>>> I am sure we can benefit from the expertise of many participants in the subgroup, and would recall in this respect an email sent by Mike Rodenbaugh on 21 June 2017, who admittedly is “one who fights ICANN in many legal matters, on behalf of clients from all over the world”. Mike said he would like to “have a chance to refute such thinking [that ICANN should be immune from national courts] with real-world examples that have already happened or all still ongoing.” http://mm.icann.org/pipermail/ws2-jurisdiction/2017-June/001149.html
>>>
>>> Best regards,
>>>
>>> Thiago
>>> This request seem like an attempt to flip the "burden of persuasion" from those who would propose a remedy to those who do not support it, and also seems to run directly counter to the guideline that any proposal of immunity be expressed with specificity. Given these problematic characteristics of the suggestion, and the lack of any support for it on the list, it does not appear that this request should be part of our approach.
>>> While any participant is free to oppose a remedy in a variety of ways (including by suggesting particular circumstances where it should not apply), that does not appear to be an appropriate requirement for responding to suggested remedy. This is particularly true when it comes to the proposal of immunity as a remedy, where our predicate for discussion is that such a proposal needs to be limited and specific.
>>> Of course, the Subgroup as a whole could come to a different decision. However, I would caution us on spending much of the limited time we have discussing process but rather stick to substance and to seeking to persuade the Subgroup that particular proposed issue or proposed remedy has merit.
>>> Since Thiago's suggestion that "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" is basically a restatement of his earlier email (as he notes), there's no need to discuss it separately.
>>> Finally, to be clear, when we discussed the guideline that any proposal of immunity be expressed in a limited and specific way, there was no implication that this was "so that ICANN be no less accountable to other countries than it is to the United States and US stakeholders." (Nor was there an implication that this group has concluded that ICANN is "less accountable to other countries than it is to the United States and US stakeholders.") There appears to be an attempt to bolster this through mentioning that the Charter refers to the Netmundial definition of accountability, and then to argue that this reference means that Netmundial was "expressly relied on in the Charter of W2 to define ICANN's accountability goals, and from there to argue that we need to satisfy elements of Netmundial that do not appear in our charter.
>>> The mention of Netmundial is actually quite narrow, and provides no support for these leaping contentions. Specifically, the Charter reads:
>>>> During discussions around the transition process, the community raised the broader topic of the impact of the change on ICANN's accountability given its historical contractual relationship with the United States and NTIA. Accountability in this context is defined, according to the NETmundial multistakeholder statement, as the existence of mechanisms for independent checks and balances as well as for review and redress.
>>>> [emphasis added]
>>>
>>> I do not see how this limited citation to the Netmundial statement, to define Accountability as "the existence of mechanisms for independent checks and balances as well as for review and redress," supports the idea that the Netmundial statement defines ICANN's accountability goals. I went back to the Charter to see if there was another mention of Netmundial that might provide a coherent basis for this line of thought, but this is the only mention of Netmundial in the charter. As such, it seems the intent is that Netmundial is cited purely for the idea that Accountability is the existence of mechanisms for independent checks and balances as well as for review and redress and not for some broad idea that the jurisdictional roles of all countries with regard to ICANN need to be identical.
>>>
>>> In any event, I think our road to completion relies on concrete discussions of proposed issues (and finding broad support for some or all of these as actual issues for this group to consider resolving) and proposed remedies, leading to broad support for particular issues and remedies. I hope we can focus on that over the next several weeks.
>>>
>>> Best regards,
>>>
>>> Greg
>>>
>>>
>>>
>>>> On Sat, Sep 2, 2017 at 3:21 PM, Brian Scarpelli <BScarpelli at actonline.org> wrote:
>>>> 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
>>>> M: +1 (202) 329-9650
>>>> VOIP: +1 (202) 738-1739
>>>> www.redbranchconsulting.com
>>>> My PGP Key:
>>>> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>>>>
>>>> -----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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