<div dir="ltr"><div class="gmail_default"><font face="verdana, sans-serif">All,</font></div><div class="gmail_default"><font face="verdana, sans-serif"><br></font></div><div class="gmail_default"><font face="verdana, sans-serif">Let me take this opportunity to clear up some apparent misunderstandings.</font></div><div class="gmail_default"><font face="verdana, sans-serif"><br></font></div><div class="gmail_default"><font face="verdana, sans-serif">First, "immunity" is a potential <b>remedy</b>, not an <b>issue</b>. This has been clearly stated at multiple points in the work of this Subgroup. As such, there is clearly no expectation that immunity (or the lack thereof) (or any other remedy) will be discussed when stating a proposed issue. </font></div><div class="gmail_default"><font face="verdana, sans-serif"><br></font></div><div class="gmail_default"><font face="verdana, sans-serif">Of course, we have also asked at this time that proposed issues be accompanied by a proposed remedy or remedies. However, the proposed remedy(ies) can be whatever the proposer thinks is appropriate. There is absolutely no requirement that immunity of any sort be proposed as a remedy in response to any issue. As such it should be clear that there is no </font></div><div class="gmail_default"><font face="verdana, sans-serif"><br></font></div><div class="gmail_default"><font face="verdana, sans-serif">Perhaps what Thiago is recalling is a guideline that, <b>if anyone does choose to propose immunity as a remedy to any issue, that the scope of that immunity needs to be stated as specifically as possible.</b> 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.</font></div><div class="gmail_default"><font face="verdana, sans-serif"><br></font></div><div class="gmail_default"><font face="verdana, sans-serif">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:</font></div><div class="gmail_default"><font face="verdana, sans-serif"><br></font></div><div class="gmail_default"><pre style="white-space:pre-wrap;color:rgb(0,0,0)">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.” <a href="http://mm.icann.org/pipermail/ws2-jurisdiction/2017-June/001149.html">http://mm.icann.org/pipermail/ws2-jurisdiction/2017-June/001149.html</a>
Best regards,
Thiago</pre><pre style="white-space:pre-wrap;color:rgb(0,0,0)"><font face="verdana, sans-serif">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. </font></pre><pre style="white-space:pre-wrap;color:rgb(0,0,0)"><font face="verdana, sans-serif">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. </font></pre><pre style="white-space:pre-wrap;color:rgb(0,0,0)"><font face="verdana, sans-serif">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.<br></font></pre><pre><font face="verdana, sans-serif"><font style="color:rgb(0,0,0);white-space:pre-wrap">Since Thiago's suggestion that "</font><font color="#000000"><span style="white-space:pre-wrap">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.</span></font><span style="color:rgb(0,0,0);white-space:pre-wrap">
</span></font></pre><pre><font face="verdana, sans-serif"><font color="#000000"><span style="white-space:pre-wrap">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 "</span></font></font><font color="#000000" face="verdana, sans-serif"><span style="white-space:pre-wrap">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 "</span></font><font face="verdana, sans-serif">less accountable to other countries than it is to the United States and US stakeholders.")</font><font color="#000000" face="verdana, sans-serif"><span style="white-space:pre-wrap"> 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</span></font><span style="font-family:arial,sans-serif">. </span></pre><pre><font color="#000000" face="verdana, sans-serif"><span style="white-space:pre-wrap">The mention of Netmundial is actually quite narrow, and provides no support for these leaping contentions. Specifically, the Charter reads:</span></font></pre><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">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 <b>the existence of mechanisms for independent checks and balances as well as for review and redress. </b></blockquote><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">[emphasis added]</blockquote><div><br></div><div><font face="verdana, sans-serif">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 </font><b>the existence of mechanisms for independent checks and balances as well as for review and redress</b><font face="verdana, sans-serif"> and not for some broad idea that the jurisdictional roles of all countries with regard to ICANN need to be identical.</font></div><div><font face="verdana, sans-serif"><br></font></div><div><font face="verdana, sans-serif">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.</font></div><div><font face="verdana, sans-serif"><br></font></div><div><font face="verdana, sans-serif">Best regards,</font></div><div><font face="verdana, sans-serif"><br></font></div><div><font face="verdana, sans-serif">Greg</font></div><div><font face="verdana, sans-serif"><br></font></div><div><br></div></div></div><div class="gmail_extra"><br><div class="gmail_quote">On Sat, Sep 2, 2017 at 3:21 PM, Brian Scarpelli <span dir="ltr"><<a href="mailto:BScarpelli@actonline.org" target="_blank">BScarpelli@actonline.org</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">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.<br>
<br>
Brian<br>
<span class=""><br>
<br>
Brian Scarpelli<br>
Senior Policy Counsel<br>
</span><a href="tel:517-507-1446" value="+15175071446">517-507-1446</a> | <a href="mailto:bscarpelli@actonline.org">bscarpelli@actonline.org</a><br>
ACT | The App Association<br>
<div class="HOEnZb"><div class="h5"><br>
-----Original Message-----<br>
From: Paul Rosenzweig [mailto:<a href="mailto:paul.rosenzweig@redbranchconsulting.com">paul.rosenzweig@<wbr>redbranchconsulting.com</a>]<br>
Sent: Saturday, September 2, 2017 10:52 AM<br>
To: 'Thiago Braz Jardim Oliveira' <<a href="mailto:thiago.jardim@itamaraty.gov.br">thiago.jardim@itamaraty.gov.<wbr>br</a>>; Brian Scarpelli <<a href="mailto:BScarpelli@actonline.org">BScarpelli@actonline.org</a>>; <a href="mailto:ws2-jurisdiction@icann.org">ws2-jurisdiction@icann.org</a><br>
Subject: RE: [Ws2-jurisdiction] RES: ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition<br>
<br>
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.<br>
<br>
Please do not take Brian's effort as a concession -- it is simply a way of saying you are wrong ... yet again. Nice try.<br>
<br>
Paul<br>
<br>
Paul Rosenzweig<br>
<a href="mailto:paul.rosenzweig@redbranchconsulting.com">paul.rosenzweig@<wbr>redbranchconsulting.com</a><br>
O: <a href="tel:%2B1%20%28202%29%20547-0660" value="+12025470660">+1 (202) 547-0660</a><br>
M: <a href="tel:%2B1%20%28202%29%20329-9650" value="+12023299650">+1 (202) 329-9650</a><br>
VOIP: <a href="tel:%2B1%20%28202%29%20738-1739" value="+12027381739">+1 (202) 738-1739</a><br>
<a href="http://www.redbranchconsulting.com" rel="noreferrer" target="_blank">www.redbranchconsulting.com</a><br>
My PGP Key:<br>
<a href="https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684" rel="noreferrer" target="_blank">https://keys.mailvelope.com/<wbr>pks/lookup?op=get&search=<wbr>0x9A830097CA066684</a><br>
<br>
-----Original Message-----<br>
From: <a href="mailto:ws2-jurisdiction-bounces@icann.org">ws2-jurisdiction-bounces@<wbr>icann.org</a><br>
[mailto:<a href="mailto:ws2-jurisdiction-bounces@icann.org">ws2-jurisdiction-<wbr>bounces@icann.org</a>] On Behalf Of Thiago Braz Jardim Oliveira<br>
Sent: Friday, September 1, 2017 11:15 AM<br>
To: 'Brian Scarpelli' <<a href="mailto:BScarpelli@actonline.org">BScarpelli@actonline.org</a>>; <a href="mailto:ws2-jurisdiction@icann.org">ws2-jurisdiction@icann.org</a><br>
Subject: [Ws2-jurisdiction] RES: ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition<br>
<br>
Dear Brian,<br>
Dear All,<br>
<br>
Thank you for proposing an issue that purports to recognise the positive effects of ICANN's subjection to US jurisdiction.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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:<br>
<a href="http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001339.html" rel="noreferrer" target="_blank">http://mm.icann.org/pipermail/<wbr>ws2-jurisdiction/2017-August/<wbr>001339.html</a>)<br>
<br>
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.<br>
<br>
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.<br>
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.<br>
<br>
Best regards,<br>
<br>
Thiago<br>
<br>
<br>
<br>
-----Mensagem original-----<br>
De: <a href="mailto:ws2-jurisdiction-bounces@icann.org">ws2-jurisdiction-bounces@<wbr>icann.org</a><br>
[mailto:<a href="mailto:ws2-jurisdiction-bounces@icann.org">ws2-jurisdiction-<wbr>bounces@icann.org</a>] Em nome de Brian Scarpelli Enviada em: domingo, 27 de agosto de 2017 21:24<br>
Para: <a href="mailto:ws2-jurisdiction@icann.org">ws2-jurisdiction@icann.org</a><br>
Assunto: [Ws2-jurisdiction] ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition<br>
<br>
(with apologies for sending this to an incorrect email the first time just before the deadline of 12p UTC)<br>
<br>
<br>
<br>
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 "<a href="http://docs.google.com" rel="noreferrer" target="_blank">docs.google.com</a>". Do not trust this website:<br>
<a href="https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i60
Mk-7al4/edit#gid=0" rel="noreferrer" target="_blank">https://docs.google.com/<wbr>spreadsheets/d/<wbr>1zAMj3Oz8TEqbjauOyqt09Ef-<wbr>1ada9TrC7i60<br>
Mk-7al4/edit#gid=0</a><br>
<<a href="https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6
0Mk-7al4/edit#gid=0" rel="noreferrer" target="_blank">https://docs.google.com/<wbr>spreadsheets/d/<wbr>1zAMj3Oz8TEqbjauOyqt09Ef-<wbr>1ada9TrC7i6<br>
0Mk-7al4/edit#gid=0</a>> ).<br>
<br>
<br>
<br>
Best regards,<br>
<br>
<br>
<br>
Brian Scarpelli<br>
Senior Policy Counsel<br>
<a href="tel:517-507-1446" value="+15175071446">517-507-1446</a> <tel:<a href="tel:517-507-1446" value="+15175071446">517-507-1446</a>> | <a href="mailto:bscarpelli@actonline.org">bscarpelli@actonline.org</a> <mailto:<a href="mailto:bscarpelli@actonline.org">bscarpelli@actonline.<wbr>org</a>> ACT | The App Association<br>
<br>
______________________________<wbr>__<br>
<br>
<br>
<br>
TITLE: Positive effect of California not-for-profit incorporation and headquarters location on ICANN accountability mechanisms and operations.<br>
<br>
<br>
<br>
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.<br>
<br>
<br>
<br>
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<br>
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.<br>
<br>
<br>
<br>
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.<br>
<br>
<br>
<br>
PROPOSED SOLUTION: The Jurisdiction Subgroup should explicitly affirm in its recommendations that:<br>
<br>
* ICANN's current jurisdiction (i.e., California as the state of<br>
incorporation and headquarters location) is a critical and integral part of ICANN's system of accountability and its operations.<br>
* Subjecting ICANN to the laws of and jurisdiction of courts in the<br>
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.<br>
* The accountability mechanisms of Work Stream 1 use and depend on<br>
maintaining ICANN as a corporation headquartered and incorporated in California.<br>
* Therefore, modifications to the core jurisdictional concepts of<br>
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.<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
______________________________<wbr>_________________<br>
Ws2-jurisdiction mailing list<br>
<a href="mailto:Ws2-jurisdiction@icann.org">Ws2-jurisdiction@icann.org</a><br>
<a href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction" rel="noreferrer" target="_blank">https://mm.icann.org/mailman/<wbr>listinfo/ws2-jurisdiction</a><br>
<br>
______________________________<wbr>_________________<br>
Ws2-jurisdiction mailing list<br>
<a href="mailto:Ws2-jurisdiction@icann.org">Ws2-jurisdiction@icann.org</a><br>
<a href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction" rel="noreferrer" target="_blank">https://mm.icann.org/mailman/<wbr>listinfo/ws2-jurisdiction</a><br>
</div></div></blockquote></div><br></div>