[CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

[Sam Lanfranco]

I may be an isolated outlier here with regard to how to approach the 
core issue of jurisdiction within this CCWG, but I will state my view in 
as few words as possible. Jurisdiction will remain a major issue whether 
this CCWG includes, or excludes, jurisdiction as a question on its 
questionnaire, and whether or not it tries to address the issue of 
jurisdiction within this CCWG’s deliberations.

In many ways ICANN is a new form hybrid organization, with its 
multistakeholder policy making process, and with its global DNS policy 
remit. The jurisdiction issues run both wide and deep, and are not 
issues of simply finding the right “residence” for ICANN. They are about 
how do we (all stakeholders including governments) figure out how to 
handle the jurisdiction related issues posed by ICANN’s multistakeholder 
policy making structures, and its global DNS policy remit. What lessons 
can we drawn on from experience, and what needs to be cut from whole 
cloth (i.e., innovated)?

While I have no objections to jurisdiction being addressed inside this 
Accountability CCWG, I do not see this CCWG as an adequate venue for 
such an important issue. The work required to address it properly means 
that such a dialogue should take place in a venue (CCWG, whatever) 
devoted specifically to the jurisdiction issue. This CCWG could start 
the process by recognizing that, stating that the issue warrants its own 
CCWG (or whatever), and pressing for rapid movement in that direction. I 
could elaborate on each of the above points but I hope that the message 
is pretty clear. The rationale for such an approach almost self-evident.

Sam Lanfranco, NPOC/csih


On 12/24/2016 9:53 AM, Pedro Ivo Ferraz da Silva wrote:
> Dear CCWG-colleagues,
>
> After reading some comments in this email thread, I must admit to be 
> really disappointed.
>
>
> Some of our colleagues in the CCWG seem to have forgotten - perhaps on 
> purpose - that the topic of jurisdiction was allocated to WS2 as a 
> result of a postponement, since the majority of this group thought it 
> was not appropriate to deal with it in the pre-transition period due 
> to time constraints. My government  was not in favor of postponing the 
> discussion on jurisdiction, as we consider it was – and remains – a 
> fundamental aspect of a new ICANN truly governed by the 
> multistakeholder community without any pre-conditions,  but in respect 
> to the viewpoint of the other colleagues, we agreed to move it to WS2.
>
> Now that time has come to properly deal with this topic, it is quite 
> frustrating to notice that some participants  insist on limiting 
> and/or procrastinating this debate, including by using the absurd 
> argument that any discussion around jurisdiction cannot put into 
> question any aspect already decided in WS1, which is embedded in the 
> California law. We cannot see good faith in that kind of circular 
> argument.
>
> In our view, the discussion around the inclusion or exclusion of Q.4 
> shows quite clearly that some of those who have fiercely objected to 
> any jurisdiction debate during WS1 are maintaining their objection in 
> WS2 as well. On that particular topic (Q.4) we concur with the view 
> that upon deciding on institutional arrangements we should not only 
> consider already occurred cases but also take into account logically 
> strong possibilities. The responses to the questionnaire should thus 
> help us to deal with all possibilities associate to jurisdiction. In 
> case any unsubstantiated opinion will be received, it should be 
> summarily discarded.
>
> From the various jurisdiction calls it became quite evident that a 
> substantial part of the subgroup - mainly non-US - has great interest 
> in examining and debating ways through which we can make sure that any 
> issue associated to jurisdiction  be addressed in a way compatible 
>  with the company's international remit of coordinating Internet 
> public identifiers. In that context, I would like to highlight my 
> government´s understanding that although the proposed questionnaire 
> under discussion may provide us with some relevant factual 
> information, it does not in any way cover all aspects of interest. We 
> would like to refer, for example, to the list of issues compiled by 
> Kavouss Arasteh as per his 13 December 2016 e-mail. We would also 
> refer to questions that have continuously been asked by Parminder, 
> apparently without any satisfactory answer. Those issues and questions 
> include, for example, dispute settlement related topics, which 
> demonstrates, in our view, that jurisdiction cannot be seen purely 
> from businesses´ viewpoint. As someone has stated, we also need to 
> look at the relationship between ICANN and third parties and 
> adequately consider non-contracted Parties that might be affected by 
> ICANN´s acts and/or omissions.
>
> From the perspective of the Brazilian government, the topics raised by 
> Kavouss, Parminder and others are issues of particular interest 
>  which, needless to say, will not be adequately addressed through the 
> mere analysis of the answers provided to the questionnaire, whether it 
> includes Q.4 or not.
>
>  My government has  expressed its interest in pursuing discussion on 
> jurisdiction through those angles  many times – both  during the IANA 
> transition process and  well before that. Other governments have done 
> the same, as well as a sound number of civil society organizations 
> around the globe. The "NETmundial Multistakeholder Statement", while 
> calling for the internationalization of ICANN, clearly expresses this 
> as well. Let me emphasize, by the way, that the NETmundial Statement 
> calls for ICANN´s internationalization and not for it to become an 
> intergovernmental organization. Those are two different notions that 
> should not be confounded.
>
> If this subgroup fails to deal with the multidimensional issues 
> associated to jurisdiction  properly , it may be applauded by some 
> segments , but it will not contribute to putting in place a framework 
> that will ensure the shared goal of making ICANN a legitimate  entity 
> in the eyes of all stakeholders, including governments. To achieve 
> that, no issues should be discarded as "non important" or "not yet 
> verified". While preserving the essence of what was achieved in WS1, 
> innovative thinking, including on the part of persons with legal 
> expertise, will be needed. Is it worth to wipe an important debate 
> under the carpet just to comfort one or a few stakeholder groups while 
> discontenting others? What kind of legitimacy is such a biased and 
> limited exercise likely to have within the international community? .
>
> It is time the subgroup - including the coChairs - make a honest 
> assessment of the various viewpoints related to ICANN's jurisdiction 
> and conduct the debate as openly as possible in order to address all 
> the concerns and interests behind it.
>
> Kind regards,
>
> Sec. Pedro Ivo Ferraz da Silva
> Division of Information Society
> Ministry of Foreign Affairs - Brazil
> T: +55 61 2030-6609
> ------------------------------------------------------------------------
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