[Ws2-jurisdiction] Proposed Additional Question

Mon Dec 5 07:47:36 UTC 2016

Dear Grec,
The questions sent by SO/AC Accountability WERE
1, Approved by CCWG in Hyderabad
2. It was sent after that to SO/AC which are internal constituencies of
ICANN and not public as such
Regards
Kavouss

2016-12-05 0:43 GMT+01:00 Greg Shatan <gregshatanipc at gmail.com>:

> Kavouss,
>
> No reason to be sorry.  I will check with our Co-Chairs regarding the
> appropriate procedures.
>
> I do note that the SO/AC Accountability Subgroup sent out a questionnaire
> to SO/ACs on November 7.  Prior to that, their draft questionnaire had a
> first and second reading at two CCWG plenary sessions (the second reading
> was at the F2F in Hyderabad).
>
> Greg
>
> On Sun, Dec 4, 2016 at 5:39 PM, Paul Rosenzweig <paul.rosenzweig@
> redbranchconsulting.com> wrote:
>
>> What is you basis for that Kavouss?
>>
>> --
>> Paul
>> Sent from myMail app for Android
>> Sunday, 04 December 2016, 05:33PM -05:00 from Kavouss Arasteh
>> kavouss.arasteh at gmail.com:
>>
>>
>> Dear Grec,
>> I am sorry to say that this sub group shall not to send out any question
>> untill and unless is approved by CCWG Plenary.
>> Regards
>> Kavouss
>>
>> 2016-12-04 22:35 GMT+01:00 Pranesh Prakash <pranesh at cis-india.org
>> <https://e-aj.my.com/compose/?mailto=mailto%3apranesh@cis%2dindia.org>>:
>>
>> Dear Greg,
>> I like this fourth formulation the best of the alternatives so far,
>> however, there is one part that I see as being problematic:
>>
>> 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.
>>
>>
>> Rather than the focus on "other jurisdictions", the focus should be on
>> the concrete alternatives that the survey respondent has in mind, and this
>> is pre-judging the issue.
>>
>> I, for instance, have been proposing the idea of "jurisdictional
>> resilience" which isn't about opposing US jurisdiction but rather
>> concentration in any one jurisdiction of governmental powers over core DNS
>> bodies (ICANN, PTI, and RZM).
>>
>> Your formulation allows me to express this as a problem, but the solution
>> I propose wouldn't be captured by your formulation since my solution isn't
>> one involving swapping one jurisdiction for another.
>>
>> I would suggest forcing people to propose concrete alternatives, but not
>> prejudging the form of those alternatives as you inadvertently seem to have
>> done.
>>
>> Also, I for this:
>>
>> or are likely to be used or interfere with
>>
>>
>> I would instead suggest:
>> "or may potentially be used or interfere with"
>> since, as Yogi Berra said, it's tough to make predictions, especially
>> about the future.  So, instead of a prediction ("likely"), we could replace
>> it with a risk potential.
>>
>> I hope that makes sense, and that we agree on the need for slightly more
>> open-ended formulation for the solutions paragraph.
>>
>> Regards,
>> Pranesh
>>
>> Greg Shatan <gregshatanipc at gmail.com
>> <https://e-aj.my.com/compose/?mailto=mailto%3agregshatanipc@gmail.com>>
>> [2016-12-03 23:47:13 -0500]:
>>
>> 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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>>
>>
>> --
>> Pranesh Prakash
>> Policy Director, Centre for Internet and Society
>> http://cis-india.org | tel:+91 80 40926283
>> sip:pranesh at ostel.co
>> <https://e-aj.my.com/compose/?mailto=mailto%3asip%253Apranesh@ostel.co>
>> | xmpp:pranesh at cis-india.org
>> <https://e-aj.my.com/compose/?mailto=mailto%3axmpp%253Apranesh@cis%2dindia.org>
>> https://twitter.com/pranesh
>>
>>
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>
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