<div dir="ltr"><div class="gmail_default" style="font-family:verdana,sans-serif">All,</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">I've now read Parminder's reply and my detailed responses are below in <font color="#0000ff">blue</font>.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">For those who don't want to slog through the whole thing, I'll try to summarize:</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">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).</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">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.)</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Regardless, all proposals should follow the general concept that <font color="#000000">"recommendations should be narrowly tailored to deal with the issue that the group decides we should try to remedy."</font></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#000000"><br></font></div><div class="gmail_default"><font color="#000000" style="font-family:verdana,sans-serif">My initial reply had the following statement, worth repeating here as well as below: </font><font color="#000000" face="verdana, sans-serif"> <i>"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."</i> </font></div><div class="gmail_default"><font color="#000000" face="verdana, sans-serif"><br></font></div><div class="gmail_default"><span style="color:rgb(0,0,0);font-family:verdana,sans-serif">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). </span></div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Greg</div><div class="gmail_extra"><br><div class="gmail_quote">On Mon, Sep 4, 2017 at 11:39 AM, parminder <span dir="ltr"><<a href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">
<div bgcolor="#FFFFFF"><span class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-">
<br>
<div class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-m_-412564839010248809moz-cite-prefix">On Monday 04 September 2017 12:22 PM,
Greg Shatan wrote:<br>
</div>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif">Parminder,</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">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).</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">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 <b><i>is</i></b> a
substantive difference in meaning between "general" and
"blanket" immunity, and that there i<b><i>s no</i></b> substantive
difference between "general" immunity and "partial", etc.
immunity, please explain, and we can see how others regard
this view.</div>
</div>
</blockquote>
<br></span>
Greg, <br>
<br>
"Blanket immunity" is clearly a stronger term than "general
immunity" and seems to leave less scope for exceptions and
customisation.</div></blockquote><div><br></div><div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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.</font></div><br></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF"> 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. </div></blockquote><div><br></div><div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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 "<span style="font-size:12.8px">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.</span></font></div><br></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">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. <br></div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">As noted above, that's not what I did, so therefore you are objecting to something that did not actually happen.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF"><span class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-">
<br><blockquote type="cite"><div dir="ltr"><div style="font-family:verdana,sans-serif">As for whether the
"activities [that] should be immune" can be expressed as a
positive list or a negative list: </div></div></blockquote></span></div></blockquote><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF"><span class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-"><blockquote type="cite"><div dir="ltr"><div style="font-family:verdana,sans-serif"></div>
</div>
</blockquote>
<br></span>
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. <br></div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF"><span class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-">
<br>
<br>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif">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.</div>
</div>
</blockquote>
<br></span>
This is exactly what I'd call as as creeping shifts, through
creative use of language.<br></div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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: <b>recommendations should be narrowly tailored to deal with the issue that the group decides we should try to remedy. </b>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.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">
<br>
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)</div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">I never referred to "law specific immunity"; you are now arguing against a construct you created.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF"> </div></blockquote><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">
<br>
Further, you tell me, how many cases of application of US law even
have any legal provision of a waiver</div></blockquote><div><br></div><div class="gmail_default"><font face="verdana, sans-serif"></font><font color="#0000ff" face="verdana, sans-serif">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).</font></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">(for which term you are wrongly
using "immunity").</div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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). </font></div><div><br></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">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).<br></div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">
<br>
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.
</div></blockquote><div><br></div><div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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 (<span style="font-family:arial,sans-serif">particularly since it would have to be true in all instances to be true at all).</span> Perhaps this statement would also benefit from a parenthetical like the one above. </font></div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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. </font> </div></div><div><br></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF"> Neither if a US regulator decides that a particular sector gTLD has
conditions that it finds problematic and seek<div class="gmail_default" style="font-family:verdana,sans-serif;display:inline">e</div>d to force change them.
There is no mechanism for seeking waiver (much less "immunity") <br></div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">This suffers from the same difficulties noted above.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">
<br>
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, </div></blockquote><div><br></div><div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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.</font></div></div><div><br></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">where they
are available (they are no available in extremely few cases) </div></blockquote><div><br></div><div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">As explained above, this is not the case.</font></div><br></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">and not
immunity, which is always a more general concept, with negative list
of exceptions. </div></blockquote><div><br></div><div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">As explained above, this is not the case.</font></div><br></div><div> <br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">This is simply not acceptable.<br></div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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.</font></div><div><br></div><div> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">
<br>
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.</div></blockquote><div><br></div><div class="gmail_default"><font color="#0000ff" style="font-family:verdana,sans-serif">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: </font><font face="verdana, sans-serif"> <i>"</i></font><span style="font-style:italic;font-family:Verdana,sans-serif;font-size:12.8px">So,</span><span style="font-style:italic;font-family:Verdana,sans-serif;font-size:12.8px"> </span><u style="font-style:italic;font-family:Verdana,sans-serif;font-size:12.8px">what's most important now is that recommendations be put forth in a manner that are most likely to lead to consensus</u><span style="font-style:italic;font-family:Verdana,sans-serif;font-size:12.8px">, not getting bogged down in discussions of how recommendations should be phrased. </span><font face="Verdana, sans-serif" style="font-style:italic"><span style="font-size:12.8px">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. </span></font><font face="Verdana, sans-serif" style="font-style:italic"><span style="font-size:12.8px">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."</span></font><span style="font-family:Verdana,sans-serif;font-size:12.8px"><i> </i></span></div><div class="gmail_default"><span style="font-family:Verdana,sans-serif;font-size:12.8px"><font color="#0000ff"><br></font></span></div><div class="gmail_default"><span style="font-family:Verdana,sans-serif;font-size:12.8px"><font color="#0000ff">If this isn't clear enough, I'll be more direct. </font></span></div><div class="gmail_default"><span style="font-family:Verdana,sans-serif;font-size:12.8px"><font color="#0000ff"><br></font></span></div><div class="gmail_default"><span style="font-family:Verdana,sans-serif;font-size:12.8px"><font color="#0000ff">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. </font></span></div><div class="gmail_default"><span style="font-family:Verdana,sans-serif;font-size:12.8px"><font color="#0000ff"><br></font></span></div><div class="gmail_default"><span style="font-family:Verdana,sans-serif;font-size:12.8px"><font color="#0000ff">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.</font></span></div></div></div><div class="gmail_extra"><div class="gmail_quote"><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF"><span class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-">
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">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 "<b>w</b><span style="font-size:12.8px;font-family:Verdana,sans-serif"><b>ill
result in recommendations that achieve consensus in the
Subgroup</b>." So, <u>what's most important now is that
recommendations be put forth in a manner that are most
likely to lead to consensus</u>, not getting bogged down
in discussions of how recommendations should be phrased. <br>
</span></div>
</div>
</blockquote>
<br></span>
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. <br>
<br>
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. <br></div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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.</font> </div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF"><span class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-">
<br>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif"><span style="font-size:12.8px;font-family:Verdana,sans-serif"> 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.</span></div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">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.</div>
</div>
</blockquote>
<br></span>
Neither is uncalled for circumscriptions of what this group can or
may do, and this is what your email does, and very inappropriately.</div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">
<br><span class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-">
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif"> What really matters
is whether any particular recommendation (including any
particular recommendation of immunity) is going to achieve
consensus. <br>
</div>
</div>
</blockquote>
<br></span>
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...<br></div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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.</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">
<br>
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."<br>
i<br>
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.</div></blockquote><div><br></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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.</font></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff"><br></font></div><div class="gmail_default" style="font-family:verdana,sans-serif"><font color="#0000ff">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."</font></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF"><span class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-HOEnZb"><font color="#888888"><br>
<br>
parminder <br></font></span><div><div class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-h5">
<br>
<br>
<blockquote type="cite">
<div dir="ltr">
<div style="font-family:verdana,sans-serif"> Let's try to get to
that discussion as directly as possible.</div>
<div style="font-family:verdana,sans-serif"><span style="font-size:12.8px;font-family:Verdana,sans-serif"><br>
</span></div>
<div style="font-family:verdana,sans-serif"><span style="font-size:12.8px;font-family:Verdana,sans-serif">Greg</span></div>
<div style="font-family:verdana,sans-serif"> <br>
</div>
<div class="gmail_extra"><br>
<div class="gmail_quote">On Sun, Sep 3, 2017 at 10:50 AM,
parminder <span dir="ltr"><<a href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">
<div bgcolor="#FFFFFF"> On Sunday 03 September 2017 12:38
PM, Greg Shatan wrote:<br>
<blockquote type="cite">
<div dir="ltr"><font face="verdana, sans-serif">SNIP</font></div>
</blockquote>
<span class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-m_-412564839010248809gmail-"> <br>
<blockquote type="cite">
<div dir="ltr"><font face="verdana, sans-serif">
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>
</blockquote>
<br>
</span> Greg, <br>
<br>
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. <br>
<br>
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".)<br>
<br>
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. <br>
<br>
Below is from the chair's report of the f2f meeting at
Johannesburg.<br>
<br>
<blockquote>
<blockquote>
<p style="margin-bottom:0cm;line-height:100%">“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 <b>or creating a
blanket immunity for ICANN</b>. .” (emphasis
added)</p>
<p style="margin-bottom:0cm;line-height:100%"><br>
</p>
</blockquote>
</blockquote>
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. <br>
<br>
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.<br>
<br>
<blockquote>
<blockquote>
<pre>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. </pre>
</blockquote>
</blockquote>
(quote ends)<br>
<br>
Clearly, "partial immunity" was not excluded, which is
very different from what you are now claiming the
decision was. <br>
<br>
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.<br>
<br>
For this I was chastised by Avri (25th), who wrote " <br>
<pre>"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)
</pre>
This correction and the spirit behind it, and the
reprimand about my post facto nitpicking, was
enthusiastically agreed to Farzaneh and Paul.....<br>
<br>
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.<span class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-m_-412564839010248809gmail-HOEnZb"><font color="#888888"><br>
<br>
parminder</font></span>
<div>
<div class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-m_-412564839010248809gmail-h5"><br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
<blockquote type="cite">
<div dir="ltr">
<div><font face="verdana, sans-serif"><br>
</font></div>
<div><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><font face="verdana, sans-serif"><br>
</font></div>
<div>
<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" target="_blank">http://mm.icann.org/pipermail/<wbr>ws2-jurisdiction/2017-June/001<wbr>149.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.
</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 face="verdana, sans-serif" color="#000000"><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 face="verdana, sans-serif" color="#000000"><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 face="verdana, sans-serif" color="#000000"><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:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);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><br>
<br>
Brian Scarpelli<br>
Senior Policy Counsel<br>
</span><a href="tel:517-507-1446" value="+15175071446" target="_blank">517-507-1446</a> |
<a href="mailto:bscarpelli@actonline.org" target="_blank">bscarpelli@actonline.org</a><br>
ACT | The App Association<br>
<div class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-m_-412564839010248809gmail-m_-4701897854441855013HOEnZb">
<div class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-m_-412564839010248809gmail-m_-4701897854441855013h5"><br>
-----Original Message-----<br>
From: Paul Rosenzweig [mailto:<a href="mailto:paul.rosenzweig@redbranchconsulting.com" target="_blank">paul.rosenzweig@redbra<wbr>nchconsulting.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" target="_blank">thiago.jardim@itamaraty.gov.b<wbr>r</a>>;
Brian Scarpelli <<a href="mailto:BScarpelli@actonline.org" target="_blank">BScarpelli@actonline.org</a>>;
<a href="mailto:ws2-jurisdiction@icann.org" target="_blank">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" target="_blank">paul.rosenzweig@redbranchconsu<wbr>lting.com</a><br>
O: <a href="tel:%2B1%20%28202%29%20547-0660" value="+12025470660" target="_blank">+1 (202)
547-0660</a><br>
M: <a href="tel:%2B1%20%28202%29%20329-9650" value="+12023299650" target="_blank">+1 (202)
329-9650</a><br>
VOIP: <a href="tel:%2B1%20%28202%29%20738-1739" value="+12027381739" target="_blank">+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/pk<wbr>s/lookup?op=get&search=0x9A830<wbr>097CA066684</a><br>
<br>
-----Original Message-----<br>
From: <a href="mailto:ws2-jurisdiction-bounces@icann.org" target="_blank">ws2-jurisdiction-bounces@icann<wbr>.org</a><br>
[mailto:<a href="mailto:ws2-jurisdiction-bounces@icann.org" target="_blank">ws2-jurisdiction-bounc<wbr>es@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" target="_blank">BScarpelli@actonline.org</a>>;
<a href="mailto:ws2-jurisdiction@icann.org" target="_blank">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/0<wbr>01339.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" target="_blank">ws2-jurisdiction-bounces@icann<wbr>.org</a><br>
[mailto:<a href="mailto:ws2-jurisdiction-bounces@icann.org" target="_blank">ws2-jurisdiction-bounc<wbr>es@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" target="_blank">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%0AMk-7al4/edit#gid=0" rel="noreferrer" target="_blank">https://docs.google.com/spread<wbr>sheets/d/1zAMj3Oz8TEqbjauOyqt0<wbr>9Ef-1ada9TrC7i60<br>
Mk-7al4/edit#gid=0</a><br>
<<a href="https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6%0A0Mk-7al4/edit#gid=0" rel="noreferrer" target="_blank">https://docs.google.com/sprea<wbr>dsheets/d/1zAMj3Oz8TEqbjauOyqt<wbr>09Ef-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" target="_blank">517-507-1446</a> <tel:<a href="tel:517-507-1446" value="+15175071446" target="_blank">517-507-1446</a><wbr>>
| <a href="mailto:bscarpelli@actonline.org" target="_blank">bscarpelli@actonline.org</a>
<mailto:<a href="mailto:bscarpelli@actonline.org" target="_blank">bscarpelli@actonline.o<wbr>rg</a>>
ACT | The App Association<br>
<br>
______________________________<wbr>__<br>
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<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>
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