[Ws2-jurisdiction] Proposed Additional Question

[matthew shears]

Greg

I tend to agree with Paul and David.

If there is WG agreement that this is a useful question I would ask that 
we also consider the following small edit:

Remove "What do you think" in the first line - replace with "What are" - 
I am not a fan of speculation on matters such as this.

Matthew

On 04/12/2016 19:01, McAuley, David 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
>
> *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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-- 
------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987

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