[Ws2-jurisdiction] RES: mandate re ccTLD issues

Greg Shatan gregshatanipc at gmail.com
Sun Sep 10 16:23:24 UTC 2017 

All,

One amendment to my email above.  I think it will be more efficient to
address our ccNSO-related questions to the ccNSO participants in this
Subgroup and the CCWG.  They will have the background on both the CCWG
discussions of ccTLD matters and the broader ccTLD context.   If and when
needed, they can turn to ccNSO leadership (noting that Nigel Roberts is a
member of the ccNSO Council).

Greg

On Sun, Sep 10, 2017 at 12:55 AM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> All,
>
> Let's not obscure the substance of the co-chairs' message in Thomas's
> email by getting pulled into a procedural thicket.
>
> The point the email raises -- the "mandate re ccTLD issues" is a
> significant point: "Whether or not ccTLD delegations and redelegations ...
> should be worked on as issues for the jurisdiction sub team."  The
> co-chairs' reminder of how the question was answered regarding the overall
> work of the CCWG is critical.  The remit of this or any subgroup can't be
> broader than that of the CCWG as a whole.
>
> I see that there is some disagreement with these conclusions.  I will take
> up Thomas's suggestion and ask ccNSO leadership for clarification, sending
> them the relevant correspondence and issue statements.   While others are
> free to discuss this in the meantime, I expect that the response from ccNSO
> leadership will bring us information that will help any further discussion
> of this point.
>
> How does this affect our work?
>
> First, we haven't decided that the three ccTLD-related proposals are, in
> fact, issues.  Nor have we decided that these issues are likely to "result
> in recommendations that achieve consensus in the Subgroup" (as per our Path
> Forward), or even that they are within our remit.  If these proposals
> aren't adopted as issues, for whatever reason, then the point raised by the
> co-chairs (among others) is moot for purposes of this Subgroup.
>
> Second, remember our principle that we need to consider issues separately
> from potential remedies.  Don't decide against an issue because you don't
> like the proposed remedies; there may be other possible remedies.  The
> opposite is true as well.  (Of course, if we don't take up a proposed
> issue, opinions about suggested remedies for that issue are beside the
> point.)
>
> Finally, we should keep our on eye the work directly in front of us --
> refining the "OFAC proposal" and working our way through the potential
> issues related to the lack of choice of law clauses in certain ICANN
> contracts.  If we were to spend the next several weeks debating the
> Subgroup's mandate regarding ccTLD issues, we will have no recommendations
> and no report.  (That said, I would be remiss if I let such a debate go on
> for several weeks....)
>
> That doesn't necessarily mean that discussion is closed.  It means we have
> to be goal-oriented, and our goal is to bring our work together into a
> report in the next month or so, with recommendations that this group will
> support.
>
> Best regards,
>
> Greg
>
> P.S.  To be clear, I see no procedural impediment to taking up this
> point.  The procedural objection has been duly noted, as have the responses.
>
> On Thu, Sep 7, 2017 at 1:01 AM, Kavouss Arasteh <kavouss.arasteh at gmail.com
> > wrote:
>
>> Dear Thomas,
>>
>>
>> Thanks
>>
>> 1.In that case you plainly and clearly intervened in the activities and
>> working methods of  sub group which you and your colleagues have  at
>> several occasions claimed that the Co Chairs should not and should
>> refrained to  intervene ,in the capacity of CO -Chairs in the working
>> methods or activities of the sub groups .At several occasions  I asked
>> that the co- chairs need to  provide advice  to them and your answer to
>> me was that " It is not the duty of the co-chair to intervene in the
>> activities / working methods of any sub group  . But did break this Rules
>> two times. As I did mention in my previous message.
>>
>> 2. In regard to the substance of your message, as Milton clearly and
>> rightly mentioned
>>
>> Qoute
>>
>> *"But the jurisdictional issues related to ICANN's incorporation in the
>> U.S. affect, or have the potential to affect, ccTLD delegations. Ergo, it
>> is within our remit, full stop"*
>>
>> *Regards*
>>
>> *Kavouss*
>>
>> On Wed, Sep 6, 2017 at 9:17 PM, Thomas Rickert <thomas at rickert.net>
>> wrote:
>>
>>> Hello Thiago and Milton,
>>> thanks for your comments.
>>>
>>> I will not try to defend the points I made, which are based on our WS1
>>> report and previous discussions we had. You have different views on this
>>> and that is fine.
>>>
>>> The easiest way to shed light on this is to reach out to the ccNSO
>>> leadership and ask for clarification.
>>>
>>> I hope that is an acceptable way forward.
>>>
>>> Best
>>> Thomas
>>>
>>> > Am 06.09.2017 um 21:04 schrieb Mueller, Milton L <milton at gatech.edu>:
>>> >
>>> > I'm sorry, Thomas but your reasoning is not valid. And I can't tell
>>> whether this is just posturing to signal your sensitivity to some ccTLD
>>> operators or whether it is meant to be taken seriously as an impediment to
>>> the group's work.
>>> >
>>> > But the jurisdictional issues related to ICANN's incorporation in the
>>> U.S. affect, or have the potential to affect, ccTLD delegations. Ergo, it
>>> is within our remit, full stop.
>>> >
>>> > In recommending solutions, we may choose to defer to the CCNSO, but
>>> that is a policy choice we make here, not a hard constraint. I certainly do
>>> believe that cc's themselves take most of the responsibility for devising a
>>> solution to any problems we identify, but that doesn't stop us from
>>> identifying problems.
>>> >
>>> >> -----Original Message-----
>>> >> From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
>>> >> bounces at icann.org] On Behalf Of Thiago Braz Jardim Oliveira
>>> >> Sent: Wednesday, September 6, 2017 2:53 PM
>>> >> To: 'Thomas Rickert' <thomas at rickert.net>; ws2-jurisdiction at icann.org
>>> >> Subject: [Ws2-jurisdiction] RES: mandate re ccTLD issues
>>> >>
>>> >> Dear Thomas,
>>> >>
>>> >> Could you please explain why a << recommendation that ICANN obtain
>>> >> immunity from US jurisdiction in respect of its ccTLD management
>>> activities
>>> >>>> "steps over" whatever line there is related to ccNSO's prerogatives?
>>> >>
>>> >> I'm convinced it does not, and I think I have explained the reasons
>>> why (and
>>> >> how) that is so, as well as offered concrete proposals for a
>>> recommendation
>>> >> on this ccTLD issue that respects the prerogatives of the ccNSO (for
>>> example,
>>> >> see here: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-
>>> >> August/001441.html and here: http://mm.icann.org/pipermail/ws2-
>>> >> jurisdiction/2017-August/001496.html ).
>>> >>
>>> >> It would be helpful if you could respond to the e-mails I linked
>>> above.
>>> >>
>>> >> Thank you.
>>> >>
>>> >> Best,
>>> >>
>>> >> Thiago
>>> >>
>>> >>
>>> >>
>>> >> -----Mensagem original-----
>>> >> De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
>>> >> bounces at icann.org] Em nome de Thomas Rickert Enviada em:
>>> quarta-feira, 6
>>> >> de setembro de 2017 04:17
>>> >> Para: ws2-jurisdiction at icann.org
>>> >> Cc: Thomas Rickert
>>> >> Assunto: [Ws2-jurisdiction] mandate re ccTLD issues
>>> >>
>>> >> Dear all,
>>> >>
>>> >> there has been quite some discussion about whether or not ccTLD
>>> delegations
>>> >> and redelegations (Nigel, I know it is technically not a relegation
>>> :-)) should be
>>> >> worked on as issues for the jurisdiction sub team.
>>> >>
>>> >> This is a particularly sensitive issue for different reasons.
>>> >>
>>> >> Not all ccTLD operators are part of the ccNSO and therefore ICANN,
>>> let alone
>>> >> our group,and we cannot establish rules for disputes that affect
>>> those ccTLDs.
>>> >>
>>> >> Further, when we worked on the “judiciary building block“ in our
>>> >> accountability system, we explicitly limited our work to issues not
>>> related to
>>> >> ccTLD (re)delegations. Therefore, we made it part of our
>>> recommendations
>>> >> that the ccNSO would develop a policy for this..
>>> >>
>>> >> ccNSO representatives have made it abundantly clear that we must not
>>> step
>>> >> over this line and try to impose on them. We could check with the
>>> ccNSO
>>> >> leadership, but given the discussions at the time I strongly believe
>>> that the
>>> >> ccNSO’s support for WS1 recommendations was based on this very
>>> >> demarcation in our recommendations.
>>> >>
>>> >> In addition to that, one of our main principles for WS2 is not to
>>> undo work
>>> >> that has been done in WS1. Working on (re)delegation issues for ccTLDs
>>> >> would violate that rule.
>>> >>
>>> >> I hope this helps.
>>> >>
>>> >> Best,
>>> >>
>>> >> Thomas
>>> >>
>>> >> _______________________________________________
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>>> >> Ws2-jurisdiction at icann.org
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>>
>>
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