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

Sat Dec 24 18:24:54 UTC 2016

Marilyn

It didn't matter in WS1 when bylaws were written using legal 
terms-of-art without understanding what they means, and then WS2 
sub-groups set up to determine what the true construction of the terms 
already adopted were . .

But I agree with your last sentence.

>
>
> I support Sam's suggestion. Such a sub group or new group could then
> advise into the CCWG.
>
>
> BUT, really global legal expertise matters here.
>
>
> M
>
>
>  ter
> ------------------------------------------------------------------------
> *From:* accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org> on behalf of Sam
> Lanfranco <sam at lanfranco.net>
> *Sent:* Saturday, December 24, 2016 10:35 AM
> *To:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
> Results
>
> 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
>> ------------------------------------------------------------------------
>           <rest deleted>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>