[Ws2-jurisdiction] [CCWG-ACCT] Fwd: ICANN's US jurisdiction

Mon Nov 21 15:52:32 UTC 2016

Parminder,

I agree that we should concentrate on assessing the jurisdictional questions of the status quo and possible problems, also for worst-cases.

Incorporation of ICANN: I am studying it in detail, also in dialogue with experts in the Austrian Foreign Ministry. ICANN status is special that cannot be fulfilled by other jurisdictions so far. ICANN needs a strong seat state supporting its special role (difficult to match the USA) and also a legal system willing to interfere in ICANN's policies if accountability requirements are not met. I do not see a seat state willing to do that. It would easily destroy its reputation as a supporter but also guarantor of the autonomy of the organization (a highly relevant concern of any international organization). Thus, it is good to study it - from an academic point of view - but also accept that it is highly impractical at the moment. As long as the present system works, we should keep it - with a b-plan if the present arrangement does not work.

Best, Erich Schweighofer

Von: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von parminder
Gesendet: Montag, 21. November 2016 13:12
An: ws2-jurisdiction at icann.org
Betreff: Re: [Ws2-jurisdiction] [CCWG-ACCT] Fwd: ICANN's US jurisdiction

All

I myself remain very concerned about the lack of progress by this group. However, this wont be addressed by pushing back formulations that have been made on at least one of the more important issues on the table. Why do not those who consider other issues as important come out with clear statement of problem, possible options to solve them, and the possible decision points for the group, as some Indian groups supported by two of the largest global networks of civil society organisations working in the IG area has done for the area of 'public law jurisdiction' or jurisdiction of incorporation? Do that rather than lament why one set of actors are bring a particular set of concerns and likely resolutions to the table.

I see three key areas that this group must deal with

1. Issue of incorporation of ICANN, or application of US public law on ICANN, and its implication on ICANN policy work

2. Issue of applicable jurisdictions on private law related to ICANN's internal working (that would also cover accountability mechanisms) and various contracts that it enters into

3. Issue of application of public law of other countries on ICANN where ICANN may have presence

4. pl add if any

Why does not anyone, or a group here, formulate the issue, the real concerns involved, possible options to pursue with regard to recommendations that this group can make. That would help us make progress.

We can agree to simultaneously move discussion forward on all the three above - in three separate threads. Some may quickly be agreed to, others may lead to longer discussions. That is the nature of the beast... But lets keep moving.

parminder

On Tuesday 15 November 2016 08:00 PM, policy at paulmcgrady.com<mailto:policy at paulmcgrady.com> wrote:
Pedro,

Nothing has been discarded beforehand.  Parminder's idea of moving ICANN out of California (thus deconstructing WS1 Accountability mechanisms which are built upon on California law and thus nullifying ICANN's CEO's testimony to the US Senate saying it wouldn't happen) has been given an enormous amount of attention already.  In fact, it has been given so much attention that we really haven't moved very far along on the real work of this group, namely, looking at how ICANN's jurisdiction effects the contractual framework that binds ICANN, registries, registrars, and registrants together.  Not being desirous to endlessly discuss a subject to the detriment of all the other subjects we need to get to is not the same thing as discarding something beforehand.  Thanks!

Best,
Paul

-------- Original Message --------
Subject: Re: [Ws2-jurisdiction] [CCWG-ACCT] Fwd: ICANN's US jurisdiction
From: Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br<mailto:pedro.ivo at itamaraty.gov.br>>
Date: Tue, November 15, 2016 4:37 am
To: "ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>" <ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>
Dear Parminder,

Thank you very much for this contribution. I believe it raises important points about the debate around jurisdiction and should therefore be taken to the discussions in the WS2 subgroup.
Contrary to what has been stated by other colleagues, I believe the paper you forwarded brings in new and interesting ideas that are worth evaluating, although I would have concerns with some of them.

Anyway, my understanding is that we are currently in a problem assessment phase, where no possible recommendations/alternatives should be discarded beforehand.

Regards,

Pedro

Enviado do meu smartphone Samsung Galaxy.

-------- Mensagem original --------
De: "Mueller, Milton L" <milton at gatech.edu<mailto:milton at gatech.edu>>
Data: 13/11/16 17:59 (GMT-03:00)
Para: policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>, parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>, CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Assunto: Re: [CCWG-ACCT] Fwd: ICANN's US jurisdiction

While I don't support the statement as a whole, I think your dismissal is too indiscriminate.

I, too, would completely reject Parminder's discredited argument that setting rules for a TLD named "pharmacy" will result in the global imposition of rules for the entire pharmaceutical sector (or book, or beauty parlors, etc.). This absurdly exaggerates the influence of TLD registries. Even if it were not based on a false assumption, the idea that because ICANN is incorporated in the US the rules its policy processes and registry operators adopt for these TLDs are somehow controlled by the US government is simply false.
I also think that option #1 (incorporating ICANN under international law instead of California) was soundly rejected in WS1 and in fact is not a feasible or even coherently formulated option.

Option #2, on the other hand, has some merit and certain aspects of it are worth considering. I see no fallacy in the statement, "With three different jurisdictions over these complementary functions, the possibility of any single one being ... able to interfere in ICANN's global governance role will be minimized." I think this could be considered a prudent political risk mitigation strategy. We are not going to change ICANN's place of incorporation, and it is unlikely that we will change PTI's place of incorporation so soon after we have stood up the new corporation. But it is not impractical to consider jurisdictional diversity the next time the RZM contract is renewed. (Note that I am characterizing an alternate jurisdiction as a 'consideration' and not as a 'requirement.' And longer term, as PTI matures they might also take into consideration the possibility of another jurisdiction. The value of this is debatable, given that PTI is a subsidiary of ICANN, but the possibility of separation was deliberately built into the design of the new arrangements. So in any separation process, jurisdictional diversity might be taken into account.

--MM

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 policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>
Sent: Friday, November 11, 2016 9:14 AM
To: parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>; CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] Fwd: ICANN's US jurisdiction

Thanks Parminder.

The attachment you shared seems to be a compilation of some of the really terrible ideas which have shown up on this List from time to time. Since these terrible ideas have already been addressed and addressed and addressed on this List, I'm not sure that re-addressing them again at this time would prove useful.  However, I didn't want anyone to think that silence (to the latest round of trying to push for the unraveling of WS1) was somehow assent.  It isn't.  We just really have to get on with the real work of this group and stop constantly reopening and re-addressing all of these fringe ideas.

Best,
Paul

-------- Original Message --------
Subject: [CCWG-ACCT] Fwd: ICANN's US jurisdiction
From: parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>
Date: Tue, November 08, 2016 7:01 pm
To: CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
All
I thought this may be relevant to those on this list. Regard, parminder

-------- Forwarded Message --------
Subject:

ICANN's US jurisdiction

Date:

Wed, 9 Nov 2016 07:23:40 +0530

From:

parminder <parminder at itforchange.net><mailto:parminder at itforchange.net>

To:

governance at lists.igcaucus.org<mailto:governance at lists.igcaucus.org> <governance at lists.igcaucus.org><mailto:governance at lists.igcaucus.org>, BestBitsList <bestbits at lists.bestbits.net><mailto:bestbits at lists.bestbits.net>, Forum at Justnetcoalition. Org <forum at justnetcoalition.org><mailto:forum at justnetcoalition.org>

All

As you know, the issue of jurisdiction of ICANN is under consideration at ICANN's community process (in the accountability track where there is a sub group discussing this issue). ICANN is currently meeting in Hyderabad, India, from 3rd to 9th November.

Today, on the last day of ICANN's Hyderabad meeting, the enclosed statement was issued by key Indian civil society organisations engaged with Internet governance issues, supported by two key global networks involved in this area. The statement expresses the urgent need for transiting ICANN from being under the jurisdiction of one country, presenting the rationale of why this is important to do. It also lists some possible options of doing so, towards beginning a serious action-oriented deliberation on this very important matter. Unlike what is often understood, the jurisdiction issue is not just a matter of sovereign prestige and self respect of the states but concerns vital matters impacting people's rights. This is especially so as the society gets more and more digitised in all areas.

We welcome comments and feedback.

The statement has been issued by the following Indian civil society organisations.
Centre for Internet and Society<http://cis-india.org/>, Bangalore
IT for Change<http://www.itforchange.net/>, Bangalore
Free Software Movement of India<https://en.wikipedia.org/wiki/Free_Software_Movement_of_India>, Hyderabad
Society for Knowledge Commons<http://www.knowledgecommons.in/>, New Delhi
Digital Empowerment Foundation<http://defindia.org/>, New Delhi
Delhi Science Forum<http://www.delhiscienceforum.net/>, New Delhi
Software Freedom Law Center India, New Delhi
Third World Network - India<https://twnetwork.org/>, New Delhi

It is supported by the following global networks:
Association For Progressive Communications<https://www.apc.org/>
Just Net Coalition
<http://justnetcoalition.org/>

<http://justnetcoalition.org/>We will soon expand this effort to enlist more global support.
Best, Parminder

<http://justnetcoalition.org/>

<http://justnetcoalition.org/>

<http://justnetcoalition.org/>

<http://justnetcoalition.org/>
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