<html>
<head>
<meta http-equiv="Content-Type" content="text/html; charset=utf-8">
</head>
<body text="#000000" bgcolor="#FFFFFF">
<br>
<div class="moz-cite-prefix">On Wednesday 06 September 2017 11:27
AM, Greg Shatan wrote:<br>
</div>
<blockquote type="cite"
cite="mid:CA+aOHUSwJBTmpLmV=v+d8iQFjqrHYp-hjFATO6h8NMdcm2EZgw@mail.gmail.com">
<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>
</blockquote>
<br>
Thanks Greg,<br>
<br>
That is a big change from what you said earlier, which would suggest
that IOI Act based immunity (even with exceptions etc) is off the
table, but with this email I understand that it is not. Let me know
if my interpretation is wrong..... <br>
<br>
parminder <br>
<br>
<br>
<br>
<blockquote type="cite"
cite="mid:CA+aOHUSwJBTmpLmV=v+d8iQFjqrHYp-hjFATO6h8NMdcm2EZgw@mail.gmail.com">
<div dir="ltr">
<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
style="font-family:verdana,sans-serif" color="#000000">My
initial reply had the following statement, worth repeating
here as well as below: </font><font face="verdana,
sans-serif" color="#000000"> <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 face="verdana, sans-serif"
color="#000000"><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"
moz-do-not-send="true">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>
</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
face="verdana, sans-serif" color="#0000ff">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
style="font-family:verdana,sans-serif" color="#0000ff">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
style="font-style:italic" face="Verdana, sans-serif"><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
style="font-style:italic" face="Verdana, sans-serif"><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" moz-do-not-send="true">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" moz-do-not-send="true">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"
moz-do-not-send="true">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"
moz-do-not-send="true">517-507-1446</a> |
<a
href="mailto:bscarpelli@actonline.org"
target="_blank"
moz-do-not-send="true">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"
moz-do-not-send="true">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"
moz-do-not-send="true">thiago.jardim@itamaraty.gov.b<wbr>r</a>>;
Brian Scarpelli <<a
href="mailto:BScarpelli@actonline.org"
target="_blank"
moz-do-not-send="true">BScarpelli@actonline.org</a>>;
<a
href="mailto:ws2-jurisdiction@icann.org"
target="_blank"
moz-do-not-send="true">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"
moz-do-not-send="true">paul.rosenzweig@redbranchconsu<wbr>lting.com</a><br>
O: <a
href="tel:%2B1%20%28202%29%20547-0660"
value="+12025470660"
target="_blank"
moz-do-not-send="true">+1
(202) 547-0660</a><br>
M: <a
href="tel:%2B1%20%28202%29%20329-9650"
value="+12023299650"
target="_blank"
moz-do-not-send="true">+1
(202) 329-9650</a><br>
VOIP: <a
href="tel:%2B1%20%28202%29%20738-1739"
value="+12027381739"
target="_blank"
moz-do-not-send="true">+1
(202) 738-1739</a><br>
<a
href="http://www.redbranchconsulting.com"
rel="noreferrer"
target="_blank"
moz-do-not-send="true">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"
moz-do-not-send="true">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"
moz-do-not-send="true">ws2-jurisdiction-bounces@icann<wbr>.org</a><br>
[mailto:<a
href="mailto:ws2-jurisdiction-bounces@icann.org"
target="_blank"
moz-do-not-send="true">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"
moz-do-not-send="true">BScarpelli@actonline.org</a>>;
<a
href="mailto:ws2-jurisdiction@icann.org"
target="_blank"
moz-do-not-send="true">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"
moz-do-not-send="true">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"
moz-do-not-send="true">ws2-jurisdiction-bounces@icann<wbr>.org</a><br>
[mailto:<a
href="mailto:ws2-jurisdiction-bounces@icann.org"
target="_blank"
moz-do-not-send="true">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"
moz-do-not-send="true">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"
moz-do-not-send="true">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"
moz-do-not-send="true">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"
moz-do-not-send="true">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"
moz-do-not-send="true">517-507-1446</a> <tel:<a
href="tel:517-507-1446" value="+15175071446" target="_blank"
moz-do-not-send="true">517-507-1446</a><wbr>>
| <a
href="mailto:bscarpelli@actonline.org"
target="_blank"
moz-do-not-send="true">bscarpelli@actonline.org</a>
<mailto:<a
href="mailto:bscarpelli@actonline.org"
target="_blank"
moz-do-not-send="true">bscarpelli@actonline.o<wbr>rg</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"
target="_blank"
moz-do-not-send="true">Ws2-jurisdiction@icann.org</a><br>
<a
href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction"
rel="noreferrer"
target="_blank"
moz-do-not-send="true">https://mm.icann.org/mailman/l<wbr>istinfo/ws2-jurisdiction</a><br>
<br>
______________________________<wbr>_________________<br>
Ws2-jurisdiction mailing
list<br>
<a
href="mailto:Ws2-jurisdiction@icann.org"
target="_blank"
moz-do-not-send="true">Ws2-jurisdiction@icann.org</a><br>
<a
href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction"
rel="noreferrer"
target="_blank"
moz-do-not-send="true">https://mm.icann.org/mailman/l<wbr>istinfo/ws2-jurisdiction</a><br>
</div>
</div>
</blockquote>
</div>
<br>
</div>
<br>
<fieldset
class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-m_-412564839010248809gmail-m_-4701897854441855013mimeAttachmentHeader"></fieldset>
<br>
<pre>______________________________<wbr>_________________
Ws2-jurisdiction mailing list
<a class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-m_-412564839010248809gmail-m_-4701897854441855013moz-txt-link-abbreviated" href="mailto:Ws2-jurisdiction@icann.org" target="_blank" moz-do-not-send="true">Ws2-jurisdiction@icann.org</a>
<a class="gmail-m_8471973525149883484m_-3352054632933401670gmail-m_-5279685702233723419gmail-m_-412564839010248809gmail-m_-4701897854441855013moz-txt-link-freetext" href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction" target="_blank" moz-do-not-send="true">https://mm.icann.org/mailman/l<wbr>istinfo/ws2-jurisdiction</a>
</pre>
</blockquote>
<br>
</div>
</div>
</div>
<br>
______________________________<wbr>_________________<br>
Ws2-jurisdiction mailing list<br>
<a
href="mailto:Ws2-jurisdiction@icann.org"
target="_blank" moz-do-not-send="true">Ws2-jurisdiction@icann.org</a><br>
<a
href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction"
rel="noreferrer" target="_blank"
moz-do-not-send="true">https://mm.icann.org/mailman/l<wbr>istinfo/ws2-jurisdiction</a><br>
<br>
</blockquote>
</div>
<br>
</div>
</div>
</blockquote>
<br>
</div>
</div>
</div>
</blockquote>
</div>
<br>
</div>
</div>
</blockquote>
<br>
</body>
</html>