[Ws2-jurisdiction] Proposed Additional Question

[Greg Shatan]

All,

On the list and the most recent Jurisdiction Subgroup call, we have been
discussing a proposal to add another question to the questionnaire being
prepared by this group. Specifically, we've been discussing

1.  Whether this question should be sent out by the Subgroup; and

2.  The drafting of the question.

On the first point, there was a fairly even split (among the few who
responded) on the call.  On the list, there were about twice as many
responses opposed to sending the question, at least as originally drafted.

Before revisiting whether to send the question out, we should continue to
refine the question, so that it's clear what proposed question we're
considering.

I've gone through the email thread discussing this question, and I've
pulled out the various formulations of the question.  I've also pulled out
the comments that had suggestions regarding the scope and wording of the
question.  These appear directly below.  That way, we can all see how the
discussion evolved on the list. Taking into account the various
formulations and the various comments, as well as the language of Annex 12,
I've prepared the following proposed formulation for the Group's review and
comment:


*Fourth proposed formulation*

What do you think are the advantages or problems, if any, relating to ICANN
being under U.S. jurisdiction and subject to U.S. and California law,
particularly with regard to the actual operation of ICANN’s policies and
accountability mechanisms?

Please support your response with appropriate examples, references to
specific laws, case studies, other studies, and analysis.  In particular,
please indicate if there are current or past instances that highlight such
advantages or problems.  Also, in terms of likely future risk, please
mention specific ways in which U.S. or California laws safeguard or
interfere with, or are likely to be used or interfere with, ICANN's ability
to carry out its policies throughout the world.

For any problem identified, please identify other jurisdictions, if any,
where that problem would not occur.  For each such jurisdiction, please
specify whether those jurisdictions would support the outcomes of
CCWG-Accountability Work Stream 1, identify the future risks of those
jurisdictions, and discuss the risks associated with changing
jurisdictions.


PLEASE REPLY TO THIS EMAIL WITH YOUR COMMENTS AND FURTHER PROPOSED
REVISIONS.  Thank you.

Greg

*Original proposed formulation*:

What do you think are the problems, if any, with continued jurisdiction of
the US state over ICANN, as a US non-profit? Please justify your response
with appropriate examples, analysis, etc. Especially, if there are existing
and past instances that highlight such problems please indicate them.

*Comment:*

*It should, however, be made by specific reference to existing laws that
could be used to interfere with ICANN's ability to provide service to
customers in other countries.*

*Comment:*

*If we were to go in this direction we would also need to add something
like "What do you think the problems would be, if any, of changing
jurisdiction..."*

*Second proposed formulation*:

What do you think are the problems, if any, with continued jurisdiction of
the US state over ICANN, as a US non-profit? Please justify your response
with appropriate examples, analysis, etc. Especially, please indicate if
there are existing and past instances that highlight such problems. Also,
in terms of future likelihood, please mention specific institutions/ laws
etc of the US state that could be used to interfere with ICANN's ability to
provide global governance services to all people of the world, including in
non US countries.

*Comment:*

*An unbiased question would also ask about advantages and protections, and
ways in which the current jurisdictional arrangement supports ICANN's
ability to carry out its mission.  I also find the focus on the concept of
the "jurisdiction of the US state over ICANN," to be quite puzzling.  The
primary focus of this group has been on the effects of "governing law"
(whether it results from a legal or physical location of ICANN or from a
contractual provision, etc.)  and not on some idea that the US Government
is somehow poised to strike and exercise unilateral power over ICANN in
some undefined (and possibly non-existent) fashion.*

*Comment:*

*I would oppose this as it relates to future risks unless the responders
also identified other potential jurisdictions where those future risks
would not be realized and assessed the future risks of those potential
jurisdictions of transfer.*

Third proposed formulation/comment:

What do you think are the problems, if any, with continued jurisdiction of
the US state over ICANN, as a US non-profit? Please justify your response
with appropriate examples, analysis, etc.


*... with appropriate examples, references to specific laws, case and other
studies, analysis, ... * Especially, please indicate if there are existing
and past instances that highlight such problems. Also, in terms of future
likelihood, please mention specific institutions/ laws etc of the US state



*I think it might be good to couch this in terms of risk analysis.  Risk is
real and analyzing it is a common activity. Also in terms of likely risk,
please ... *that could be used to interfere with ICANN's ability to provide
global governance services to all people of the world, including in non US
countries.

*Comment:*

*If we are going to allow speculation as to potential future issues that
have not arisen and may never arise based on analysis that is grounded only
in theory without any connection to practice then the natural question is
whether those speculative harms would be ameliorated by changing
jurisdiction and also whether changing would give rise to other, different,
speculative harms.  If we want to just guess, let's guess not only about
the horrors of remaining in the US, but also the horrors of moving.*
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