[Ws2-jurisdiction] Proposed Additional Question

[Greg Shatan]

Thank you all for your comments so far.

To be clear, the discussion on what the question should be is not an
indicator of a decision (or even a tendency) to send out the question.  The
idea is to separate the issue of "what is the question" from "should we
send out the question," then to develop the question.

Once the question is relatively "stable," then we can make the most
informed decision about whether to send the question out.  Deciding whether
to send the question out before deciding what the question is could be seen
as putting the cart before the horse.

In any event, developing the question gives us the best opportunity to see
whether or not there is a question of this type that would get broad
support as a question to be sent out.

Greg

On Sun, Dec 4, 2016 at 2:01 PM, McAuley, David <dmcauley at verisign.com>
wrote:

> Hi Greg,
>
>
>
> Thank you for your efforts to move this along.
>
>
>
> I oppose the question. In my personal opinion this is beyond what our WS2
> should be looking at (for reasons I have previously stated) and has the
> potential for a major distraction for us.
>
>
>
> If the group decides to send such a question forward, I tend to agree with
> Paul about specificity, and would change part of the last sentence of the
> question from “…identify the future risks of those jurisdictions, …” to
> “…identify the risks of those jurisdictions, …”.
>
>
>
> Best regards,
>
>
>
> David
>
>
>
> David McAuley
>
> International Policy Manager
>
> Verisign Inc.
>
> 703-948-4154 <(703)%20948-4154>
>
>
>
> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org] *On Behalf Of *Greg Shatan
> *Sent:* Saturday, December 03, 2016 11:47 PM
> *To:* ws2-jurisdiction at icann.org
> *Subject:* [Ws2-jurisdiction] Proposed Additional Question
>
>
>
> 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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>
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