[Ws2-jurisdiction] first draft of fact solicitation questions

Thu Nov 24 04:49:56 UTC 2016

Chairs/ All

First, I want to be made absolutely clear about the objective of this
exercise, and the purposes that it will be used for. All information is
good, but then I hope we do not later 'decide' that we will now work
only on the basis of the 'clear objective information' that has been
made available to us. There is a saying in development sector 'first we
begin to measure what is important, but soon begin to consider only that
important which can and has been measured'. People often fall into this
trap, but here i think we may even be setting the trap for ourselves.

Did we take an 'objective view' of 'actual tabulatable instances of
existing or past problems' when we developed the community
accountability mechanism? US jurisdiction is also an oversight
mechanism, like direct NTIA role was. We never sought a list of actual
problems that have already occurred vis a vis NTIA's role, in deciding
to replace it. We just knew that it is not quite ok - on principle, and
perhaps taking from various analogies. Exactly in the same way,
application of US jurisdiction on a key global infrastructure is not ok.

As to why it is not ok, you were recently made aware of a statement made
by practically all civil society organisations in India (with one
seventh of world's population) involved in IG, supported by two of the
largest global civil society networks in this area. The statement
explained, with the brevity that a statement allows, some key issues
with continued US jurisdiction over ICANN, including taking account of
past/ existing events . But people here have called those views, to
quote, as "fringe views". Very well! And perhaps now I have to
understand that these views are not considered important becuase they do
not refer to specific personal problems that any person or party have
itself brought forward. They are third party views, generalisations, and
so on...

I see the effort here as a part of the larger ideology under which
ICANNunfortunatelyoperates, which only recognises individuals, and see
social systems as being a network of empowered individuals in
contractual relationships with each other, and being entirely
responsible to stand up for themselves. As Thatcher said, there is no
society.... And so each is to and for ones own. Neither are their any
larger issues of public interest, which do not specifically pertain to
one person or the other. Nor, is there any kind of political
representativity, whereby if you cannot come to the table, even when
expressly called, as through this proposed questionnaire, then you are
not to be considered.  

This is why the views of a big organised part of public opinion, as
expressed in the said civil society statement, are taken as 'fringe
views' and we want to depend on personal testimonies of personal impact
of individuals who have the readiness and capability to stand up for
themselves and speak.

Are we really thinking that as soon as this questionnaire goes out, to
the limited channels that are already quite engaged with this process,
we will have an avalanche of specific problems that we seek an account
of. All or most of the key cases where domain name policies or
implementation have had to grapple with jurisdictional issues are
already well known. You may at the best unearth one or two more cases,
quite like the known ones, but about even that I am doubtful.

So, basically we are setting ourselves up for not getting any or much
response, which perhaps will help us 'decide' that people really are not
bothered about the 'jurisdiction' issue and there arent really any
problems about current jurisdictional configurations..... I find it
difficult to go with exercise. But I am open to be explained the
objected and expected outcome of this exercise, as being different from
what I am surmising.

thanks,

parminder

On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
> These seem well-stated, except perhaps they should not be looking only
> for personal experience, but broaden the request to seek any
> experience the responder is aware of?  So I suggest something like:
>
> 1.       Are you aware of any instance in which anyone's business,
> privacy, or ability to use or purchase DNS-related services, has been
> affected by ICANN's jurisdiction in any way?
>
> If the answer is Yes, please describe specific cases or incidents,
> including the date, the parties involved, and links to any relevant
> documents.
>
> 2.       Are you aware of any instance in which ICANN's jurisdiction
> affected any dispute resolution process or litigation related to
> domain names?
>
> If the answer is Yes, please describe specific cases or incidents,
> including the date, the parties involved, and links to any relevant
> documents.
>
>
>
>
> Mike Rodenbaugh
> RODENBAUGH LAW
> tel/fax:  +1.415.738.8087
> http://rodenbaugh.com 
>
> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L <milton at gatech.edu
> <mailto:milton at gatech.edu>> wrote:
>
>     CW and I have agreed on the following draft:
>
>      
>
>      
>
>     *Request for stakeholder input on jurisdiction issues***
>
>      
>
>     The Jurisdiction subgroup of the CCWG Accountability is asking for
>     the community to provide factual input on the following questions:
>
>      
>
>     1.       Has your business, your privacy or your ability to use or
>     purchase DNS-related services, been affected by ICANN's
>     jurisdiction in any way?
>
>     If the answer is Yes, please describe specific cases or incidents,
>     including the date, the parties involved, and links to any
>     relevant documents.
>
>      
>
>     2.       Has ICANN's jurisdiction affected any dispute resolution
>     process or litigation related to domain names you have been
>     involved in?
>
>     If the answer is Yes, please describe specific cases or incidents,
>     including the date, the parties involved, and links to any
>     relevant documents.
>
>      
>
>      
>
>      
>
>     Dr. Milton L. Mueller
>
>     Professor, School of Public Policy
>
>     Georgia Institute of Technology
>
>      
>
>      
>
>
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>
>
>
>
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