[Ws2-jurisdiction] RES: ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition
parminder
parminder at itforchange.net
Sun Sep 10 11:20:35 UTC 2017
On Wednesday 06 September 2017 11:27 AM, Greg Shatan wrote:
> All,
>
> I've now read Parminder's reply and my detailed responses are below in
> blue.
>
> For those who don't want to slog through the whole thing, I'll try to
> summarize:
>
> After careful review, I observe that "blanket immunity" and "general
> immunity" are often used interchangeably, and that my use of one term
> rather than the other was not, nor was it intended to be, any kind of
> shift. This seems like a semantic quibble, until I realized that only
> one participant in the subgroup has used the term "general immunity"
> to describe their proposal. (It may be that other proposals could be
> characterized that way, but only one actually used that phrase).
>
> After careful review, I observe no general rule that immunity is
> expressed only as a broad immunity with exceptions, rather than a
> specific statement of what the immunity applies to. In other words, I
> observe no general rule regarding the statement of a partial immunity
> in a "positive" or "negative" manner. Based on this, I would clarify
> that any proposals relating to immunity can be stated in either
> fashion. (This does not mean the Subgroup will be equally receptive
> to both styles, just that both styles can be used in proposals.)
Thanks Greg,
That is a big change from what you said earlier, which would suggest
that IOI Act based immunity (even with exceptions etc) is off the table,
but with this email I understand that it is not. Let me know if my
interpretation is wrong.....
parminder
>
> Regardless, all proposals should follow the general concept that
> "recommendations should be narrowly tailored to deal with the issue
> that the group decides we should try to remedy."
>
> My initial reply had the following statement, worth repeating here as
> well as below: /"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."/
>
> The rest of the reply is primarily devoted to clarifying certain
> misunderstandings, countering criticisms (the non-constructive ones),
> and trying to set straight some misconceptions, so not of great
> general interest (but feel free to read it if you will).
>
> Greg
>
> On Mon, Sep 4, 2017 at 11:39 AM, parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
>
> On Monday 04 September 2017 12:22 PM, Greg Shatan 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 i*/s
>> no/* substantive difference between "general" immunity and
>> "partial", etc. immunity, please explain, and we can see how
>> others regard this view.
>
> Greg,
>
> "Blanket immunity" is clearly a stronger term than "general
> immunity" and seems to leave less scope for exceptions and
> customisation.
>
>
> Parminder, some things that are "clear" to you are not in fact
> "clear" to other people or agreed with by other people, including me.
> I'm still not clear what the difference is, other than you perceive
> "blanket immunity" to be "stronger" and that while both have some
> "scope for for exceptions and customisation," blanket immunity "seems
> to leave less scope." I would be curious to know whether other
> members of the subgroup see this distinction. I would also be curious
> to know what the co-chairs have to say, since their statements are key
> elements here. Finally, I will note that I took additional time and
> looked at a number of texts discussing immunity. Repeatedly in those
> texts, I found "blanket immunity" and "general immunity" used
> interchangeably (others did not use one or both of these terms), so it
> does not seem there is a settled vocabulary for discussing immunity.
> In any event, I continue to believe this is a "distinction without a
> difference," but the floor is open for other opinions.
>
>
>
> Your use of the term no "general immunity" was made worse by
> ruling out "exception mechanism" to general immunity. Such general
> immunities that admit exceptions and customisation is the normal
> way the term "immunity" is used. it is rarely used for individual
> or specific laws, for which the term I understand is waiver .
> Immunity therefore is mostly general, with given exceptions.
>
>
> I don't purport to be a scholar of immunity, but in my reading on the
> subject, I have seen immunities expressed both positively and
> negatively, without any particular pattern that would indicate a
> "normal way." Also note that I did not refer to "individual or
> specific laws" -- that is your substitution for statement. What I
> actually said was "the laws and elements of "jurisdiction" that would
> be subject to that immunity (ability to sue and be sued, legislative,
> regulatory, etc.)." That could be dealt with in a number of ways,
> both positively (e.g., antitrust immunity) or negatively (e.g., an
> exception for tort laws). Perhaps you misunderstood what I said,
> though I believe I was clear. In any event, this misunderstanding
> limits the value of the rest of this email.
>
>
>
> Now to turn that concept into a set of law specific waivers is
> what your current communication did, to which I objected, and
> still object. I still call is a creeping shift in the frameworks
> and rules of our mandate and discussion which is very unfortunate
> for the chair to do.
>
>
> As noted above, that's not what I did, so therefore you are objecting
> to something that did not actually happen.
>
>
>> As for whether the "activities [that] should be immune" can be
>> expressed as a positive list or a negative list:
>
>
> Immunity is mostly if not always a general concept, with or
> without exceptions, but there are almost always some exceptions.
> It is always a negative list and not a positive list.
>
>
> As noted above, I have not found that to be the case. In any event,
> my initial reply to you already added flexibility to the method of
> presentation of remedies, including immunity.
>
>
>
>> 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.
>
> This is exactly what I'd call as as creeping shifts, through
> creative use of language.
>
>
> I don't see anything particularly "creative" regarding the above, but
> as noted just before, this is moot. But let's pause here a moment
> and consider the very first concept in the above paragraph -- the root
> concept: *recommendations should be narrowly tailored to deal with the
> issue that the group decides we should try to remedy. *If you think
> this can be done with a list of exceptions, and you think this will be
> broadly persuasive to the Subgroup, give it a shot.
>
>
> First of all there is no law specific immunity, it is called
> waiver, as said earlier (search OFAC and immunity together and you
> will know this)
>
>
> I never referred to "law specific immunity"; you are now arguing
> against a construct you created.
>
>
>
>
> Further, you tell me, how many cases of application of US law even
> have any legal provision of a waiver
>
>
> This is obviously unknowable without many hours of research. You seem
> to imply that these are rare, I don't believe that to be the case.
> Off the top of my head, I can think of various waiver-like processes:
> SEC no-action letters, DOJ business review letters, and
> Hart-Scott-Rodino "FOIA" letters. A few minutes of research reveal
> Section 1115 Medicaid waivers, California Office of Statewide Health
> Planning and Development (OSHPD) waivers of statutes that limit the
> completion of surgical abortion to physicians (to allow nurse
> practitioners, midwives and physician's assistants to perform the
> procedure), DHS waivers under Section 102 of the Real ID Act (applied
> to 37 specified laws), SEC waivers of automatic disqualification
> provisions in various securities laws, Department of Education waivers
> of certain requirements of the Elementary and Secondary Education
> Act in exchange for states agreeing to take on school reforms, and the
> New York State Education Law allowing the State Office of the
> Professions to issue waivers allowing nonprofits and education
> corporations to employ certain licensed professionals. Some of the
> are waivers that are provided in the law themselves, others are
> waivers granted at the discretion of the agency charged with enforcing
> the relevant law(s).
>
>
> (for which term you are wrongly using "immunity").
>
>
> I think we have loosely grouped the OFAC general license with
> "immunity" as a class of remedies. I'm sorry you see that sort of
> short-hand as "wrong" (though I'm not sure where I have done that).
>
>
>
> OFAC has, but it has to be regime specific, for every OFAC order a
> separate waiver has to be sought and I understand renewed
> periodically. There is no waiver for particular organisations or a
> class of activities for all OFAC sanctions and for all times. (
> asked a specific clarification in this regard during our call and
> in default I take this to be the position).
>
>
> Just to make sure I understand how to interpret the above paragraph:
> the statement of the scope of an OFAC "general license," though made
> with great certainty, is not actually a statement of fact; it is one
> potential outcome being treating as fact by "default" without knowing
> if it is correct. I appreciate the parenthetical clarifying that
> this not actually a fact, but it would perhaps be better if such
> parentheticals were unnecessary.
>
>
> For other identified issues, like a US court taking up the right
> to pronounce upon an issue which may be a core global policy one
> for ICANN, there are no issue specific ways to get waiver or
> immunity.
>
>
> From the very general statement made here, it is impossible to tell
> what "issue" is under consideration and what law is being applied (or
> whether this proposed issue. As such, we do not appear to have a
> basis to treat the statement "there are no issue-specific ways to get
> waiver or immunity" as fact (particularly since it would have to be
> true in all instances to be true at all). Perhaps this statement would
> also benefit from a parenthetical like the one above.
>
> I am curious about the procedure that is being referred to in the
> hypothesis that a US court can "take up the right to pronounce upon an
> issue." I am struggling to identify a procedure where a US courts is
> granted a "right to pronounce upon an issue." Generally, US courts
> can only act in cases brought by one party or parties (plaintiff(s))
> against another party or parties (defendant(s)), claiming particular
> "causes of action" (i.e., that particular laws are being violated,
> contracts being breached, etc. by actions of a defendant). Perhaps
> this statement would also benefit from a parenthetical like the one
> above.
>
>
>
> Neither if a US regulator decides that a particular sector gTLD
> has conditions that it finds problematic and seek
> e
> d to force change them. There is no mechanism for seeking waiver
> (much less "immunity")
>
>
> This suffers from the same difficulties noted above.
>
>
> So, by your new interpretation, and use of creative language, what
> you have in fact done is to pronounce a judgement that this group
> will only consider specific waivers from specific laws,
>
>
> As explained above, this is not the case, i.e, it does not accurately
> describe my initial email. It should be noted now (if not before now)
> that the initial email was qualified by my follow up email.
>
>
>
> where they are available (they are no available in extremely few
> cases)
>
>
> As explained above, this is not the case.
>
>
>
> and not immunity, which is always a more general concept, with
> negative list of exceptions.
>
>
> As explained above, this is not the case.
>
>
>
> This is simply not acceptable.
>
>
> Given the explanations above, it appears there is nothing to which
> this applies, so I will just view this as a free-floating criticism,
> without any object attached to it.
>
>
>
>
> Ok, I like to be direct.Are you saying that exploration of
> customised immunity under the International Organisations Immunity
> Act is off the table for this group, in pursuance of this latest
> pronouncement of yours (it is a different matter whether the group
> later agrees on such a remedy or not)? Please give me a clear
> response. I read your pronouncement to say so. If it does not,
> please tell me clearly.
>
>
> If you read my initial reply more carefully, I think you could answer
> this yourself. But since you seem intent to focus on the initial
> email, I'll try to clear this up. Just look below. I'll quote it
> again for your convenience, as a single thought, without your
> interjection: /"/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."/ /
>
> If this isn't clear enough, I'll be more direct.
>
> If you think that you can respond to an agreed-upon issue with a
> proposed remedy using the IOIA that will lead to a broadly supported
> recommendation, give it a shot. Of course, it's not yet known which
> proposals will be agreed upon as issues by this Subgroup, so once
> again we are putting the cart before the horse.
>
> I would hope that whatever you put forth would not easily be seen as
> "blanket immunity" since that would mean reopening a decided issue,
> which we have no time or patience for.
>
>>
>> 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 "*w**ill 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.
>
> Right. So lets not be in a hurry to close out possible solutions
> when at the stage of discussing issues. This is what "you" have
> done in your recent email, and therefore the advice you are giving
> me should actually be directed to you. Once earleir, the same
> thing was done by you and CCWG chair -- in middle of an official
> process of discussing issues first, the chairs jumped in and
> without any rhyme or reason declared some possible solutions as
> being out of scope. This new effort of yours is just a second act
> of the same process.
>
> So, instead of telling me to stick to issues and not get into
> framing language of possible recs, why dont you do that, is my
> question.
>
>
> This is a misreading of this entire section, somehow fashioning
> vituperative disagreement out of relative agreement. I'm not writing
> this just to you, I am writing this to the Subgroup as a whole. I am
> trying to resolve the situation in this paragraph, by allowing some
> additional flexibility in the process so that we can get to the
> substance. I'm bemused that you have somehow found an oppositional
> and accusatory way to respond to this effort to be more
> accommodating. I'll note that Kavouss accurately perceived the intent
> and effect of this and the the rest of the email.
>
>
>> 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.
>
> Neither is uncalled for circumscriptions of what this group can or
> may do, and this is what your email does, and very inappropriately.
>
>
> I'm not sure why you keep referring to my first email, and seemingly
> ignoring the reply to which you are actually responding. If you
> would prefer, I will withdraw the email you are responding to, and
> instead defend my prior email, which I believe was neither "uncalled
> for" or "very inappropriate." That might provide a better target for
> self-righteous indignation, but I hope that is not the goal of anyone
> in this group. In any event I encourage you to carefully read my
> initial reply before using up a quiverful of arrows.
>
>
>> What really matters is whether any particular recommendation
>> (including any particular recommendation of immunity) is going to
>> achieve consensus.
>
> We will see that. But we will reach that stage only if the chair
> does not keep deciding on what can and what cannot be discussed...
>
>
> I don't think it's at all fair to say that I "keep deciding on what
> can and what cannot be discussed." If anything, I've allowed
> off-topic and out-of-schedule discussions go on too long. But in any
> case, you still seem to be ignoring the message of my reply in favor
> of a chance to toss off another zinger.
>
>
> BTW, Id like to remind you and this group that at an early stage,
> in the document on "influence of existing jurisdiction" to the
> issue that I out there "An US executive agency like OFAC may
> prohibit or limit engagement of ICANN with entities in specific
> countries", you, meaning Greg, had put this comment "I don't
> believe this hypothetical is within the scope of this document,
> since it does not relate to governing law or venue issues."
> i
> I dont think the group's chair should so easily be commenting on
> what is in scope and what out of scope. This should be done with
> great responsibility.
>
>
> I really don't see the relevance of this anecdote at this time, other
> than the chance for some parting criticism. I will say that I never
> comment "easily" on matters of scope in this group. However, if we
> need to revisit issues of scope in this critical stage of our work, I
> will not hesitate to suggest that we do so. Acting otherwise would be
> a failure of responsibility. Ultimately it falls to the rapporteur to
> monitor potential issues of scope, and seek to resolve them.
>
> Once again I hope we can get to the discussion of proposed issues and
> potential remedies, as opposed to lengthy discussions of the "shape of
> the table."
>
>
>
> parminder
>
>
>> 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 <mailto: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
>>> <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 <mailto: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 <tel:517-507-1446> |
>>> bscarpelli at actonline.org <mailto:bscarpelli at actonline.org>
>>> ACT | The App Association
>>>
>>> -----Original Message-----
>>> From: Paul Rosenzweig
>>> [mailto:paul.rosenzweig at redbranchconsulting.com
>>> <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
>>> <mailto:thiago.jardim at itamaraty.gov.br>>; Brian
>>> Scarpelli <BScarpelli at actonline.org
>>> <mailto:BScarpelli at actonline.org>>;
>>> ws2-jurisdiction at icann.org
>>> <mailto: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
>>> <mailto:paul.rosenzweig at redbranchconsulting.com>
>>> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>>> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>>> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
>>> www.redbranchconsulting.com
>>> <http://www.redbranchconsulting.com>
>>> My PGP Key:
>>> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>>> <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>
>>> [mailto: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
>>> <mailto:BScarpelli at actonline.org>>;
>>> ws2-jurisdiction at icann.org
>>> <mailto: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
>>> <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>
>>> [mailto: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
>>> <mailto: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 <http://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-1ada9TrC7i60%0AMk-7al4/edit#gid=0>
>>> <https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6
>>> 0Mk-7al4/edit#gid=0
>>> <https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6%0A0Mk-7al4/edit#gid=0>>
>>> ).
>>>
>>>
>>>
>>> Best regards,
>>>
>>>
>>>
>>> Brian Scarpelli
>>> Senior Policy Counsel
>>> 517-507-1446 <tel:517-507-1446> <tel:517-507-1446
>>> <tel:517-507-1446>> | bscarpelli at actonline.org
>>> <mailto:bscarpelli at actonline.org>
>>> <mailto: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.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> Ws2-jurisdiction mailing list
>>> Ws2-jurisdiction at icann.org
>>> <mailto:Ws2-jurisdiction at icann.org>
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>>>
>>> _______________________________________________
>>> Ws2-jurisdiction mailing list
>>> Ws2-jurisdiction at icann.org
>>> <mailto:Ws2-jurisdiction at icann.org>
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> Ws2-jurisdiction mailing list
>>> Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>>
>>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>>
>>
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