[Ws2-jurisdiction] Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]

Wed Dec 28 04:29:53 UTC 2016

I agree that problems is a better term.  I was using "issues" in the
lawyerly sense, which does mean a real, demonstrable problem, and not
merely a hypothetical assertion.

Greg

On Tue, Dec 27, 2016 at 9:19 PM Phil Corwin <psc at vlaw-dc.com> wrote:

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> I support alternative 1 of question 4.
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> Rather than issues, I believe we should be focus on on demonstrable
> problems. Issues can just consists of debating points absent real world
> evidence of something broken or substantially sub-optimal requiring a
> remedy.
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> *Philip S. Corwin, Founding Principal*
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> *Virtualaw LLC*
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> *1155 F Street, NW*
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> *Suite 1050*
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> *Washington, DC 20004*
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> *202-559-8597/Direct*
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> *202-559-8750/Fax*
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> *202-255-6172/cell*
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> *"Luck is the residue of design" -- Branch Rickey*
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> ------------------------------
>
>
> *From:* ws2-jurisdiction-bounces at icann.org [
> ws2-jurisdiction-bounces at icann.org] on behalf of Greg Shatan [
> gregshatanipc at gmail.com]
>
>
> *Sent:* Tuesday, December 27, 2016 3:28 PM
>
>
> *To:* ws2-jurisdiction at icann.org
>
>
> *Subject:* [Ws2-jurisdiction] Focus, Working Method and Revisions to
> Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed
> Questions and Poll Results]
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> All,
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> I'm sending this to the Jurisdiction subgroup list, since this was
> initially send to a discussion thread on jurisdiction taking place on the
> CCWG list.
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>
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> *Please respond here, rather than there.  Thank you.*
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> Greg
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> The following responses were received on the Accountability list:
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> *Parminder*:
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> Greg/ All
>
>
> I think the Alternative 1, which you take as likely candidate for broader
> support, is fine. I list this formulation below:
>
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>
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> What are the advantages or disadvantages, if any, relating to ICANN's
> jurisdiction*, 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.
>
>
>
>
> (* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being
> subject to U.S. and California law as a result of its incorporation and
> location in California, (b) ICANN being subject to the laws of any other
> country as
>
> a result of its location within or contacts with that country, or (c) any
> “choice of law” or venue provisions in agreements with ICANN.)
>
>
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>
> ENDS
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> Lets move on with it. We are spending too much time on framing a question.
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> *Kavouss Arasteh: *
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> Grec,
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> Tks again,
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> As I said I believe ,it is counter productive to discuss many alternative,
>
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> I could agree with formulation of Parminder
>
>
> Regards
>
>
> Kavouss
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> *Sam Lanfranco:*
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> Greg,
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> Thank you for presenting alternatives for reaching agreement on a
>
> * Roadmap for Moving Forward to identify operational issues embedded in
> the overall “jurisdiction” issue*. It is important to recognize that what
> is being proposed is the choice of roadmap for moving forward. Where this
> takes us will flow
>
> from the assembly of evidence, the application of analysis, and the
> resulting array of possible options for addressing jurisdiction base
> operational issues.
>
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> Sam Lanfranco
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>
>
> ---------- Forwarded message ----------
>
>
> From: *Greg Shatan* <gregshatanipc at gmail.com>
>
>
> Date: Tue, Dec 27, 2016 at 2:56 AM
>
>
> Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
> Results
>
>
> To: "accountability-cross-community at icann.org" <
> accountability-cross-community at icann.org>
>
>
>
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> All:
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> Two quick but important points:
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> 1.  We have strayed from the basic topic in front of us, which is to
> decide on the formulation of the questions to be sent out.  I have gone
> through the emails and meeting notes and pulled the alternative formulations
>
> and revisions in to a single document, attached to this email.
>
>
>
>
>
>
>
> With regard to question 4, I believe that the best way to move forward is
> to see if one of the alternatives gets stronger support within the CCWG.
> If we can get to a point where there is broad support for the question
>
> without significant opposition that may resolve issues relating to whether
> and when this question will be sent out.
>
>
>
>
>
>
>
> 2.  Our overall agreed-upon working method is to first identify, discuss
> and arrive at a list of issues that raise concerns, and then move on to
> identifying, discussing and arriving at a list of potential remedies
>
> for each issue on our list.  We are still working on issues.  For a remedy
> to be up for discussion when we move to discussing remedies, that remedy
> needs to provide a solution to an  issue.  We can't discuss a potential
> remedy without having an issue it is
>
> intended to solve.  If there is a potential "remedy" but it does not solve
> any of our issues, we won't discuss it.
>
>
>
>
>
>
>
> We've already put aside one potential "remedy" until we see whether we
> identify any issues it would solve -- the "remedy" of changing ICANN's
> jurisdiction of incorporation or headquarters location.  "Immunity" is
>
> another potential remedy that we need to deal with the same way.  Skipping
> forward to discussions of remedies is only slowing down our discussion of
> issues.  I strongly suggest we refocus on issues, so that we can get to the
> discussion of remedies.  Once we've
>
> agreed on a list of issues, a discussion of remedies will be more
> productive.
>
>
>
>
>
>
>
> Our working method of dealing with issues first and then remedies may also
> help us find agreement on a way to deal with question 4.  Questions 1-3
> clearly deal with issues.  Perhaps a version of question 4 that is
>
> limited to asking for issues will get broader support ("Alternative 1" on
> the attachment may fit this description.)
>
>
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> Greg
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> On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji
>
> <seun.ojedeji at gmail.com> wrote:
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>
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> Hello,
>
>
>
>
>
>
> I also don't see the logic in sending two questionnaires. There may be
> some logic in treating the responses to questions 1 to 3 separate from
> question 4, but we are not yet at that stage. It will be better the
> question is not added at all than
>
> to send it as a separate questionnaire.
>
>
>
>
>
> Overall I am indifferent about adding or not adding but since there is
> seemingly a lot of support to add, I don't see the significant harm it will
> cause by doing that[1]. Based on the response of the Co-Chairs to my
> question, I would suggest that it's better
>
> to let all the 4 questions be presented and let's see what issues emerge
> from their responses. Then we can start to do a few round trips to legal
> and hopefully remind ourselves the possible consequences of addressing
> certain issues in a particular way. Some
>
> of which has already been echoed during WS1.
>
>
>
>
>
>
>
> Regards
>
>
> 1. Nevermind that it could generate some political news/headlines but am
> sure this group is already used to that by now ;-)
>
>
> Sent from my LG G4
>
>
> Kindly excuse brevity and typos
>
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> On 26 Dec 2016 19:19, "avri doria" <avri at acm.org> wrote:
>
>
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>
> Hi,
>
>
>
>
>
> Where we differ is on the idea of separating the questions into 2
>
>
> questionnaires.
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> I think it is going to be hard enough to get people to pay attention to
>
>
> one questionnaire, asking them to do two is daunting. A fourth question
>
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> will not test their patience in the same way another questionnaire would.
>
>
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> So with Kavouss I say:
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> > Allow all 4 questions go out and then wait what will happens  .
>
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> avri
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>
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> On 26-Dec-16 11:42, Mueller, Milton L wrote:
>
>
> >> -----Original Message-----
>
>
> >> At the same time, let us all try to return to a constructive and
> step-by-step
>
>
> >> approach, building on the progress made so far, in order to make
> progress on
>
>
> >> our mandate, established by the whole multistakeholder community back in
>
>
> >> Marrakech.
>
>
> > I agree, and I think both Pedro's and Phil's position are based on some
> confusion of issues. It we calm down a bit and look at this more carefully
> we can make progress.
>
>
> >
>
>
> > Pedro may be confusing the inclusion or exclusion of Question 4 in our
> initial request with the question of whether we explore issues in US
> jurisdiction at all.  But excluding Question 4 from our initial request for
> information is not the same as a refusal
>
> to explore the questions it raises. I have proposed _separating_ Q4 from
> the other 3 questions, not eliminating it entirely. I proposed this not
> because I want to avoid the questions Q4 poses, but because I want those
> questions to be developed better and I
>
> want to avoid conflating it with the narrower questions about dispute
> resolution that Q's 1-3 were designed to address. It is a mistake to put
> those two things together. The information we gather from Q's 1-3 will
> suffer from their attachment to the potentially
>
> more controversial issues raised by Q4. Let me also add that the divisive
> insistence that this is a matter of US citizens vs non-US citizens needs to
> be dropped. Avri and myself, e.g., are both US citizens/residents and have
> serious concerns about possible
>
> intrusions of US foreign policy and other nationalistic and governmental
> concerns into ICANN matters. At the same time we are both staunch
> supporters of a nongovernmental model in this space and have no inherent
> objection to California law as ICANN's basis.
>
>
> >
>
>
> > Phil Corwin on the other hand is confusing the issue of whether ICANN's
> corporate HQ is in California with the question of whether ICANN will be an
> intergovernmental entity. These questions have very little to do with each
> other. It is of course true that
>
> there are still a few people out there who would like for ICANN to become
> intergovernmental, but they are a tiny minority and the weight of history
> is totally against them. Put more bluntly, it ain't gonna happen.
> Supporters of the MS model and opponents of
>
> intergovernmentalism have legitimate reasons to investigate the impact of
> US jurisdiction, because the US is a global power with very specific
> foreign policy and military interests. US jurisdiction thus may have the
> potential to create opportunities for one
>
> government -  the US - to have an inappropriate level of influence over
> ICANN's transnational, nonstate actor based governance processes. One can
> consider those issues without implying that ICANN's corporate HQ needs to
> move.
>
>
> >
>
>
> > So let's stop making the status of Q4 a proxy for a long-settled war
> over whether ICANN is private or governmental, and let's stop pretending
> that those who want to separate the issues raised by Q4 from the narrower
> more focused issues in Q1-3 are trying
>
> to avoid legitimate issues.
>
>
> >
>
>
> > As for creating a separate CCWG, are you kidding? This is the CCWG
> subgroup created specifically for jurisdictional issues and we don't make
> difficult issues easier to resolve by creating additional structures.
>
>
> >
>
>
> > Dr. Milton L. Mueller
>
>
> > Professor, School of Public Policy
>
>
> > Georgia Institute of Technology
>
>
> >
>
>
> >
>
>
> >
>
>
> >> In this vein, and consistent with our conversation in Hyderabad, let us
>
>
> >> continue with the line directed to requesting input from the wider
> community.
>
>
> >>
>
>
> >> The four questions developed so far will allow us to gather much needed
> input
>
>
> >> on facts, examples and well-founded opinions on the influence of ICANNs
>
>
> >> jurisdiction, taking into account its multiple layers, on its
> operations and
>
>
> >> accountability.
>
>
> >>
>
>
> >> If we all are constructive and accept esch others' views as worthy of
> further
>
>
> >> discussion and study, we will be able to get this important step
> further.
>
>
> >>
>
>
> >> Hence, let us please stay on the right track and finalize formulations
> of all four
>
>
> >> questions, and keep up the good spirit of cooperation.
>
>
> >>
>
>
> >> with my best wishes for you all during the festivities
>
>
> >>
>
>
> >> kind regards
>
>
> >>
>
>
> >> Jorge
>
>
> >>
>
>
> >>
>
>
> >> ________________________________
>
>
> >>
>
>
> >> Von: Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br>
>
>
> >> Datum: 24. Dezember 2016 um 15:53:55 MEZ
>
>
> >> An: Greg Shatan <gregshatanipc at gmail.com>, parminder
>
>
> >> <parminder at itforchange.net>, Kavouss Arasteh
>
>
> >> <kavouss.arasteh at gmail.com>
>
>
> >> Cc:
>
> accountability-cross-community at icann.org <accountability-cross-
>
>
> >> community at icann.org>
>
>
> >> Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
> Results
>
>
> >>
>
>
> >> 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 <+55%2061%202030-6609>
>
>
> >>
>
>
> >> ________________________________
>
>
> >> De:
>
> accountability-cross-community-bounces at icann.org [accountability-
>
>
> >> cross-community-bounces at icann.org] em nome de parminder
>
>
> >> [parminder at itforchange.net]
>
>
> >> Enviado: quinta-feira, 22 de dezembro de 2016 14:01
>
>
> >> Para: Kavouss Arasteh; Greg Shatan
>
>
> >> Cc:
>
> accountability-cross-community at icann.org
>
>
> >> Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
> Results
>
>
> >>
>
>
> >>
>
>
> >> Dear Kavouss
>
>
> >>
>
>
> >> You are right, we should first deal with the issue of the questionnaire.
>
>
> >>
>
>
> >> I agree, as do many others, that there is no justification to remove the
>
>
> >> proposed Q 4 from the questionnaire. The question must go out along with
>
>
> >> others.
>
>
> >>
>
>
> >> A question seeking information is only a question seeking information.
> People
>
>
> >> may chose to not respond to it, or give different responses, likely in
>
>
> >> opposition to one another. That is all very fine, and quite expected.
> But such
>
>
> >> forceful arguments to not ask for certain kinds of information is very
>
>
> >> disturbing, even alarming. (I have issues with how the other questions
> are
>
>
> >> framed, but I am fine to let them go out because some people want them
> to
>
>
> >> be posed.)
>
>
> >>
>
>
> >> Ordinarily, if a good number of participants here wanted a question,
> that
>
>
> >> should be enough to include it. Here, a majority of those who voted on
> the
>
>
> >> issue of this particular question wanted the question included. That
> should
>
>
> >> have conclusively stopped the debate. But no, not so. There is
> persistent effort
>
>
> >> to censor this question. And this in a process that is advertised as
> open,
>
>
> >> transparent, collaborative, and what not. There is something very
> basically
>
>
> >> wrong here.
>
>
> >>
>
>
> >> parminder
>
>
> >>
>
>
> >> On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote:
>
>
> >> Dear John.
>
>
> >> Dear Parminder,
>
>
> >> It is difficult for me to conclude on any solution between the lines of
> your
>
>
> >> discussion.
>
>
> >> Could any of you kindly give a resume of the  exchanged views.
>
>
> >> We need to look for some compromise solution knowing that some hard
>
>
> >> liners like x and y insist to impose their objections to send Q4.I
> continue to
>
>
> >> object to all questions until all 4 are agreed Nothing is agreed untill
> everything
>
>
> >> is agreed this is a  Global multistakholder Group discussion and NOT
> North
>
>
> >> American Sub-Region multistakholder Group dominated by certain
> individuals
>
>
> >> Regards Kavouss
>
>
> >>
>
>
> >> 2016-12-22 13:06 GMT+01:00 parminder
>
>
> >> <parminder at itforchange.net<mailto:parminder at itforchange.net>>:
>
>
> >>
>
>
> >>
>
>
> >> On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:
>
>
> >> "To turn ones face away and say, nothing can be done here, to evolve our
>
>
> >> democratic international systems, is to vote for a status quo which
> serves
>
>
> >> some, but not others."
>
>
> >>
>
>
> >> Rather, it is an acknowledgement of reality.
>
>
> >>
>
>
> >> Apologies for appearing to be flippant, but isnt that what every status
> quo-ist
>
>
> >> says.
>
>
> >> Rule of law is neither globally strong nor evenly distributed. I can
> imagine a
>
>
> >> world in which the way forward you describe is plausible but,
> regrettably, it is
>
>
> >> not the one we live in. Other systems need strengthening and in some
> cases
>
>
> >> even existence before the way forward is open. It's not a vote for the
> status
>
>
> >> quo but a recognition of path dependency.
>
>
> >>
>
>
> >> I am not asking for a violent deviation from the path - both options
> that I
>
>
> >> propose, a new international law and immunity under existing US Act
> carries
>
>
> >> forward the path-dependency, and completely safeguard the existing
>
>
> >> structures and processes of ICANN, the system I think you allude to as
>
>
> >> requiring strengthening. What I propose in fact further strengthens it,
> to a
>
>
> >> considerable extent. The ICANN system's current jurisdictional
> oversight by a
>
>
> >> single country is its biggest weak point in terms of international
> legitimacy. ( A
>
>
> >> point, unfortunately USians here seem not able to see and sympathise
> with.)
>
>
> >> Imagine an ICANN with immunity from US jurisdiction; how much
> legitimacy,
>
>
> >> and thus strength, it adds to the system.
>
>
> >>
>
>
> >>
>
>
> >> Thanks for the back rounder Parminder. It was, along with some parallel
>
>
> >> research, quite helpful.
>
>
> >>
>
>
> >> Thanks John, you are welcome.
>
>
> >>
>
>
> >> The problem remains however that there is no analogous organization to
>
>
> >> ICANN merely in terms of its contractual authority.
>
>
> >>
>
>
> >> Firstly, if we are hoping that a fully-developed, well-rounded
> solution, with
>
>
> >> everything fully covered by enough exact precedents, to this complex
> but very
>
>
> >> genuine problem, will simply one day drop in our laps, I assure you
> that this is
>
>
> >> not going to happen. We have to work for it, join the dots, take risks,
> make
>
>
> >> innovations, and so on. The point is, who is losing and gaining what
> from the
>
>
> >> present dispensation, and who is willing to do what is required to do.
>
>
> >>
>
>
> >> Next, I see that organisations like International Fertilizer and
> Development
>
>
> >> Centre, which we cited as an example of an NPO given jurisdictional
>
>
> >> immunity, also does run many projects worldwide. Any such project would
>
>
> >> require use of a legal status, entering contracts, and so on.... We
> just need to
>
>
> >> look into it. But if we close our eyes, and simply refuse to explore
> options, we
>
>
> >> are not going to get anywhere. I am not saying this example will be an
> exact fit
>
>
> >> for our requirement, but we need to see what is possible, and innovate
> and
>
>
> >> evolve over it.
>
>
> >>
>
>
> >> I'd also add that many of the benefits of the act are at the discretion
> of the US
>
>
> >> Secretary of State and can be revoked.
>
>
> >>
>
>
> >> Yes, which is why immunity under US Act is less sustainable option than
>
>
> >> international law based immunity. But still better than the present
> condition.
>
>
> >> In the recent civil society statement on
>
>
> >> jurisdiction<
> http://www.itforchange.net/sites/default/files/Jurisdiction%20of
>
>
> >> %20ICANN.pdf>, we also suggested a method whereby any such withdrawal of
>
>
> >> immunity can be made difficult/ ineffectual (see option 3 in the end).
>
>
> >>
>
>
> >> The proposed jurisdictional immunity would also require all governments
> to
>
>
> >> sign off on such status, given ICANN's reach.
>
>
> >>
>
>
> >> I dont see why so. Only US gov needs to agree.
>
>
> >>
>
>
> >> I know that there is a significant literature on international compacts
> and law.
>
>
> >> Given the often decades long time frames for the passage and acceptance
> of
>
>
> >> such law, the Internet as we know it is unlikely to exist by the time
> it comes
>
>
> >> into force.
>
>
> >>
>
>
> >> These are weak excuses. It can be done in 6 months. But in any case, if
> it
>
>
> >> satisfies those who want to move towards international jurisdiction,
> what do
>
>
> >> you lose in allowing to set in motion the process, esp if you think it
> would take
>
>
> >> forever to do anything. Let those who want have it. In the interim,
> status quo
>
>
> >> would stay.
>
>
> >>
>
>
> >>
>
>
> >> To your question about why we do not discuss jurisdictional immunity
> under
>
>
> >> US law: it is because the domestic political reality of the situation
> makes such
>
>
> >> an eventuality so remote as to be hypothetical.
>
>
> >>
>
>
> >> The same domestic situation makes the continuation of ICANN under US
>
>
> >> jurisdiction even less tenable.
>
>
> >>
>
>
> >> This brings me to a very important point: the job of CCWG, working on
> behalf
>
>
> >> of the global community, is not to second guess what US gov will accept
> or
>
>
> >> not (unfortunately, that is what it has mostly done). If this was its
> real task, we
>
>
> >> as well may let US gov do what it may, instead of providing them the
> cover of
>
>
> >> legitimacy of the supposed will of the so called 'global community'
> which is
>
>
> >> what this process does. Our job is to recommend what we think in is best
>
>
> >> global interest, and is ordinarily plausible to do. This is what our
> job is, and we
>
>
> >> must just do that. Let US gov do its job - accept our recs or not. That
> burden is
>
>
> >> upon them - let s not take up their burden. This aspect of the work of
> the
>
>
> >> "community" groups involved in the transition process has always greatly
>
>
> >> bothered me. We must have clarity about - on whose behalf are we
> working (i
>
>
> >> think, for the global community, but you can clarify) and what our recs
> must
>
>
> >> be based on (I think, on our understanding of what is best for the
> global
>
>
> >> community, and not what we think US gov likes and would agree to, and
> what
>
>
> >> not, but again you can clarify)
>
>
> >>
>
>
> >>
>
>
> >> The described quest is admirable but IMO is a non-starter. Conditions
> do not
>
>
> >> exist presently to make it a possible.
>
>
> >>
>
>
> >> We are part of once in decades constitutional process about ICANN's
>
>
> >> structures. If it is not now, it is never.
>
>
> >>
>
>
> >> parminder
>
>
> >>
>
>
> >> Best regards,
>
>
> >>
>
>
> >> John Laprise, Ph.D.
>
>
> >> Consulting Scholar
>
>
> >>
>
>
> >> <http://www.linkedin.com/in/jplaprise/><
> http://www.linkedin.com/in/jplapri
>
>
> >> se/>http://www.linkedin.com/in/jplaprise/
>
>
> >>
>
>
> >>
>
>
> >>
>
>
> >> From: parminder
>
>
> >> [<mailto:parminder at itforchange.net>mailto:parminder at itforchange.net]
>
>
> >> Sent: Tuesday, December 20, 2016 2:57 AM
>
>
> >> To: John Laprise <mailto:jlaprise at gmail.com>
>
>
> >> <jlaprise at gmail.com><mailto:jlaprise at gmail.com>; accountability-cross-
>
>
> >> community at icann.org<mailto:accountability-cross-community at icann.org>
>
>
> >> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
> Results
>
>
> >>
>
>
> >> On Monday 19 December 2016 08:14 PM, John Laprise wrote:
>
>
> >>
>
>
> >> Possibilities of jurisdictional immunity? Could you please provide
> examples of
>
>
> >> organizations that enjoy such.
>
>
> >>
>
>
> >> John
>
>
> >> The most well known case of jurisdictional immunity is of course for
>
>
> >> organisations incorporated under international law. Unlike what has been
>
>
> >> argued here variously, although international law has to be made by
>
>
> >> governments through treaties etc that says nothing about the actual
>
>
> >> governance structure of the concerned organisation, ICANN in this case.
>
>
> >> International law can, to take an extreme case, hand over complete
>
>
> >> governance of a body created/ incorporated under international law to
> you
>
>
> >> and me... Nothing circumscribes how international law is written as
> long as all
>
>
> >> countries agree to it. It is entirely possible, and I think extremely
> plausible,
>
>
> >> that they would agree to write in such law the exact governance
> structure of
>
>
> >> ICANN as it is at present. Right now too, ICANN exists by and under the
>
>
> >> strength of its law of incorporation which is US law. In the scenario I
> present,
>
>
> >> it would just be international law instead of US law. Yes, there are
> matters to
>
>
> >> worked out in this regard, but if democracy and self-determination of
> all
>
>
> >> people, equally, is of any importance at all, we can go through the
> process,
>
>
> >> including doing the needed innovations as needed. The current
> international
>
>
> >> system was not handed over to us by God, it was evolved by people like
> us,
>
>
> >> who responded appropriately to newer and newer global challenges, as the
>
>
> >> one that faces us now. To turn ones face away and say, nothing can be
> done
>
>
> >> here, to evolve our democratic international systems, is to vote for a
> status
>
>
> >> quo which serves some, but not others. And these are the others that are
>
>
> >> protesting here, and seeking appropriate change. It is a political
> issue, lets not
>
>
> >> treat it as a technical issue, of what is argued to be difficult or too
>
>
> >> "troublesome" to pursue.
>
>
> >>
>
>
> >> Next, even without going the international law route, as has been said
> many
>
>
> >> times earlier here, US law allows even non profits to be given
> jurisdictional
>
>
> >> immunity. The concerned law is the United States International
> Organisations
>
>
> >> Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an
>
>
> >> example of a US non-profit being given jurisdiction immunity under it is
>
>
> >> International Fertilizer and Development Center. This has been
> discussed in a
>
>
> >> report commissioned by ICANN itself which can be found at
>
>
> >>
>
> https://archive.icann.org/en/psc/corell-24aug06.html .
>
>
> >>
>
>
> >> I have been unable to understand why can we not agree to even
> jurisdictional
>
>
> >> immunity under existing US law, which keeps ICANN in the US, preserves
> its
>
>
> >> existing structures, and does go considerable way to address the
> concerns
>
>
> >> about those who are concerned about application of US public law on
> ICANN,
>
>
> >> and what it may mean for its global governance work.
>
>
> >>
>
>
> >> The argument is advanced that this may affect the operation of the newly
>
>
> >> instituted community accountability mechanism. I dont think this is not
> true.
>
>
> >> This mechanism is a matter of internal ICANN governance system, which
> is a
>
>
> >> 'private' arrangement with choice of law available to it. It simply has
> to be put
>
>
> >> in ICANN bylaws that ICANN governance processes will be subject to
>
>
> >> adjudication by Californian courts as present. That should do. Of
> course the
>
>
> >> mentioned International Fertilizer and Development Centre also must be
>
>
> >> existing with some governance systems, that admit of external
> adjudication,
>
>
> >> even as it enjoys the benefit of jurisdictional immunity from US public
> laws.
>
>
> >> Such immunity always only pertains to the policy and such international
> core
>
>
> >> activities of the concerned organisation, and associated matters. It
> would not,
>
>
> >> for instance, extend to actual crime being committed by its personnel
> on its
>
>
> >> premises. All such matters of various distinctions get taken care of
> when we
>
>
> >> enter the actual processes of such immunities etc. Right now, the issue
> is only
>
>
> >> to decide to go down the route, or not.
>
>
> >>
>
>
> >> parminder
>
>
> >>
>
>
> >>
>
>
> >>
>
>
> >> Best regards,
>
>
> >>
>
>
> >> John Laprise, Ph.D.
>
>
> >> Consulting Scholar
>
>
> >>
>
>
> >>
>
> http://www.linkedin.com/in/jplaprise/
>
>
> >>
>
>
> >>
>
>
> >>
>
>
> >> From: accountability-cross-community-
>
>
> >> bounces at icann.org<mailto:accountability-cross-community-
>
>
> >> bounces at icann.org> [mailto:accountability-cross-community-
>
>
> >> bounces at icann.org] On Behalf Of parminder
>
>
> >> Sent: Monday, December 19, 2016 7:10 AM
>
>
> >> To:
>
> accountability-cross-community at icann.org<mailto:accountability-cross-
>
>
> >> community at icann.org>
>
>
> >> Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
> Results
>
>
> >>
>
>
> >>
>
>
> >>
>
>
> >>
>
>
> >> On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:
>
>
> >>
>
>
> >> SNIP
>
>
> >>
>
>
> >> John Laprise's wording was much, much better:
>
>
> >>
>
>
> >> "What are the advantages or disadvantages, if any, relating to changing
>
>
> >> ICANN's jurisdiction*, particularly with regard to the actual operation
> of
>
>
> >> ICANN's policies and accountability mechanisms?"
>
>
> >>
>
>
> >> This formulation does not include possibilities of jurisdictional
> immunity.
>
>
> >>
>
>
> >> Something like
>
>
> >>
>
>
> >>
>
>
> >>
>
>
> >>
>
>
> >> "What are the advantages or disadvantages, if any, relating to changing
>
>
> >> ICANN's jurisdiction*, or providing possible jurisdictional immunity,
>
>
> >> particularly with regard to the actual operation of ICANN's policies and
>
>
> >> accountability mechanisms?"
>
>
> >>
>
>
> >> would be better.
>
>
> >>
>
>
> >> parminder
>
>
> >>
>
>
> >>
>
>
> >>
>
>
> >>
>
>
> >>
>
>
> >> _______________________________________________
>
>
> >>
>
>
> >> Accountability-Cross-Community mailing list
>
>
> >>
>
>
> >> Accountability-Cross-Community at icann.org<mailto:Accountability-Cross-
>
>
> >> Community at icann.org>
>
>
> >>
>
>
> >>
>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
> >>
>
>
> >>
>
>
> >> _______________________________________________ Accountability-Cross-
>
>
> >> Community mailing list Accountability-Cross-
>
>
> >> Community at icann.org<mailto:Accountability-Cross-Community at icann.org>
>
>
> >>
>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
> >> _______________________________________________
>
>
> >> Accountability-Cross-Community mailing list Accountability-Cross-
>
>
> >> Community at icann.org
>
>
> >>
>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
> > _______________________________________________
>
>
> > Accountability-Cross-Community mailing list
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> >
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