[Ws2-jurisdiction] Latest Revised Draft of Jurisdiction Subgroup Report

[Jorge.Cancio at bakom.admin.ch]

Dear Greg

I’ll try to join the call. However, to be on the safe side, I’ve included my opinion on the “notes” in the Google Doc (as comments).

Thanks and best regards

Jorge

Von: Ws2-jurisdiction [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von Greg Shatan
Gesendet: Mittwoch, 28. Februar 2018 01:03
An: ws2-jurisdiction <ws2-jurisdiction at icann.org>
Betreff: [Ws2-jurisdiction] Latest Revised Draft of Jurisdiction Subgroup Report

All:
Attached is a further revised version of the Jurisdiction subgroup report, in both Word and PDF.  This draft is also available on Google Docs at https://docs.google.com/document/d/1rdMJyvZdyN9TApT6gx_3NwpdvIL7YKHEUD7tNfLf6hU/edit?usp=sharing
This latest draft reflects changes made over the course of the day, primarily:
NOTE 2: This has been revised so that the Report recommends that the Registry (or Registrar) choose from among the choice of law options on the “menu,” i.e., the choice would not be negotiated with the ICANN.  This is opposite to the way this issue was presented in the immediate prior draft.
NOTE 4: In the “Overview of the Work of the Subgroup,” the following has been added, in response to Thiago’s suggestion:
As a result of these discussions [in Abu Dhabi], the section “Further Discussions of Jurisdiction-Related Concerns” was added the draft Report, suggesting a path forward for these concerns beyond the CCWG-Accountability through a further other multistakeholder process.
NOTE 4.1: Thiago has since clarified that his suggestion is that “Comments by other countries [not just France] in support for the further jurisdiction-related discussions, in particular immunities, should be specifically referenced."
Steve Delbianco, responding to the earlier formulation, stated:  “I do not understand the justification to single-out one comment (that of France) among so many that we received and considered. Pending an explanation of that justification, I would not support a note that calls attention to just one comment.”
Thiago, then replied: “On Note 4, it is a fair point, and I do not wish to push it further. My main point was as I clarified, to add text reflecting the subsequent addition to the report of the “further discussions on jurisdiction-related concerns”, and not so much concerned with singling out any of the comments received. So, again, what appears as Note 4 is distinct and independent from what appears as Note 4.1.  Yet I would only suggest dropping point 4.1 if others believe that the report, as slightly revised in reaction to the public comments received, did respond at least in some fashion to the comments that joined their voices to Brazil’s dissent in asking for further discussions to take place, notably on immunity.  This not being the case, I do believe – as Greg suggested – it would be fair to also explicitly give similar satisfaction to the contrary voices, which however, as I clarified in our previous call, are not really contrary to Brazil’s dissent, which fact should in my view be made explicit in the report as part of the subgroup’s response to the comments received.”

I should clarify that my suggestion (as noted above by Thiago) does not imply that I support that particular outcome.
NOTE 6.1: A “friendly amendment” was made on last week’s call to Stress Test 1 in “Proposed Accountability Measures,” to clarify that any registrar’s ability to “accept domain registration requests from citizens of any country” is still “subject to limitations and obligations due to applicable law and registry restrictions.”
The other points remain unchanged from when this draft was circulated at roughly 06:00 UTC this morning/last night.
I will circulate an Agenda and list of the “NOTES” shortly.
Greg

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