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

Wed Dec 28 08:56:26 UTC 2016

Grec,
Let us go ahead with the matter as soon as possible
Kavouss

2016-12-28 5:29 GMT+01:00 Greg Shatan <gregshatanipc at gmail.com>:

> 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:
>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> I support alternative 1 of question 4.
>>
>>
>>
>>
>>
>>
>> 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.
>>
>>
>>
>>
>>
>>
>>
>> *Philip S. Corwin, Founding Principal*
>>
>>
>> *Virtualaw LLC*
>>
>>
>> *1155 F Street, NW*
>>
>>
>> *Suite 1050*
>>
>>
>> *Washington, DC 20004*
>>
>>
>> *202-559-8597 <(202)%20559-8597>/Direct*
>>
>>
>> *202-559-8750 <(202)%20559-8750>/Fax*
>>
>>
>> *202-255-6172 <(202)%20255-6172>/cell*
>>
>>
>>
>>
>>
>> *"Luck is the residue of design" -- Branch Rickey*
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> ------------------------------
>>
>>
>> *From:* ws2-jurisdiction-bounces at icann.org [ws2-jurisdiction-bounces@
>> 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]
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> All,
>>
>>
>>
>>
>>
>>
>>
>> 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.
>>
>>
>>
>>
>>
>>
>>
>> *Please respond here, rather than there.  Thank you.*
>>
>>
>>
>>
>>
>>
>>
>> Greg
>>
>>
>>
>>
>>
>>
>>
>> The following responses were received on the Accountability list:
>>
>>
>>
>>
>>
>>
>>
>> *Parminder*:
>>
>>
>> Greg/ All
>>
>>
>> I think the Alternative 1, which you take as likely candidate for broader
>> support, is fine. I list this formulation below:
>>
>>
>>
>>
>>
>>
>>
>>
>> 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.)
>>
>>
>>
>>
>>
>>
>>
>>
>> ENDS
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> Lets move on with it. We are spending too much time on framing a question.
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> *Kavouss Arasteh: *
>>
>>
>> Grec,
>>
>>
>> Tks again,
>>
>>
>> As I said I believe ,it is counter productive to discuss many alternative,
>>
>>
>> I could agree with formulation of Parminder
>>
>>
>> Regards
>>
>>
>> Kavouss
>>
>>
>>
>>
>>
>>
>>
>> *Sam Lanfranco:*
>>
>>
>> Greg,
>>
>>
>>
>>
>>
>> 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.
>>
>>
>>
>>
>>
>> Sam Lanfranco
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> ---------- 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>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> All:
>>
>>
>>
>>
>>
>>
>>
>> Two quick but important points:
>>
>>
>>
>>
>>
>>
>>
>> 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.)
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> Greg
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji
>>
>> <seun.ojedeji at gmail.com> wrote:
>>
>>
>>
>>
>> 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
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> On 26 Dec 2016 19:19, "avri doria" <avri at acm.org> wrote:
>>
>>
>>
>>
>> Hi,
>>
>>
>>
>>
>>
>> Where we differ is on the idea of separating the questions into 2
>>
>>
>> questionnaires.
>>
>>
>>
>>
>>
>> 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
>>
>>
>> will not test their patience in the same way another questionnaire would.
>>
>>
>>
>>
>>
>> So with Kavouss I say:
>>
>>
>>
>>
>>
>> > Allow all 4 questions go out and then wait what will happens  .
>>
>>
>>
>>
>>
>> avri
>>
>>
>>
>>
>>
>>
>>
>>
>> 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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>> >
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
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>>
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