[Ws2-jurisdiction] first draft of fact solicitation questions
avri doria
avri at acm.org
Mon Nov 28 17:34:14 UTC 2016
Hi,
I find the decision to limit the kinds of facts you will accept somewhat
arbitrary.
Existing laws are also facts.
avri
-1
On 27-Nov-16 21:12, Greg Shatan wrote:
> All,
>
> This discussion has ranged well beyond the current stage of our work
> and potentially beyond the scope of this subgroup; we need to refocus.
>
> After we "froze" the working documents prior to Hyderabad, the
> rapporteurs decided to allow the mailing list to "run free" for a
> while, without regard to our work plan, the active work we're engaged
> in, or the scope and remit of this subgroup. However, neither this
> subgroup or this mailing list is intended to be a general discussion
> of anything related to "ICANN" and "jurisdiction." This is a working
> (sub)group and this email list needs to be devoted to the work before
> the group.
>
> As a general reminder, the overall working method we arrived at was
> first to look for _issues_; after that was done, we would move on to
> look (if issues were identified and agreed) at potential _remedies_.
>
> To be more specific, our plan is to first identify the "influences" of
> the "multiple layers" of ICANN's jurisdiction(s). These influences
> may be positive (e.g., advantages), neutral or negative (e.g.,
> issues). As agreed by the subgroup, we are currently discussing and
> trying to answer the following question /"What is the influence of
> ICANN’s existing jurisdiction(s) relating to resolution of disputes
> (i.e., choice of law and venue) on the actual operation of ICANN’s
> policies and accountability mechanisms?/"
>
> We have been discussing possible influences, but these have been
> "hypotheticals" -- proposed by members of this subgroup. However,
> we've noticed that we are short on information about actual
> occurrences. As a result, at our last meeting we decided to make a
> factual inquiry to seek actual experiences that people and entities
> have had where ICANN's current jurisdictional set-up came into play.
> That is where we currently stand.
>
> After we identify and agree on issues and concerns (both hypothetical
> and actual), our work will turn to identifying and analyzing potential
> remedies for the listed issues/concerns, including any potential
> consequences or risks associated with those remedies. As discussed,
> the remedies need to be directly related to, and solutions for, the
> identified issues/concerns. We are not up to the remedies stage in our
> work, and we won't be until we identify and coming to consensus on
> specific issues. Any discussion of remedies now is premature, and to
> the extent it displaces discussion of influences and issues, it's
> actually delaying our work.
>
> Immunity falls into the category of potential "remedies." As such, it
> is premature to discuss it at this stage in our work. If and when we
> identify issues/concerns, we can look at potential remedies. If
> appropriate (i.e., if it appears to be a remedy to an identified
> issue), we can discuss "immunity" at that time. However, now is not
> the time for that discussion, and we need to put that discussion aside
> and focus on the work that is actually in front of us.
>
> Similarly, I believe that we need to keep our fact solicitation
> focused as well. We are looking for actual experiences to supplement
> the apparently limited experiences of those in the group. When it
> comes to questions of opinion or speculation, that is properly the
> work of this subgroup, and should be part of our deliberative
> process. We will get further input from the CCWG plenary and then
> through public comment.
>
> Let's follow our work plan and focus on the task in front of us.
> That's how we will get through the work. Thank you.
>
> Greg Shatan
> co-rapporteur
>
> On Sun, Nov 27, 2016 at 1:43 AM, parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
>
>
> On Saturday 26 November 2016 10:07 PM, Mueller, Milton L wrote:
> >
> > I don't object to "efforts to look for immunity from laws that
> affect ICANN's ability to serve clients internationally." I just
> don't think modifying the current questions is the right way to go
> about that. You are mixing up two distinct efforts. One is an
> attempt to gather facts and cases about real, existing issues. The
> other is an attempt to erect new safeguards to guard against
> possible but hypothetical problems. The hypotheticals can be
> discussed and developed within the jurisdiction subgroup, there is
> no need to circulate questions about them.
> >
> > If you mix those two things up you will undermine and possibly
> destroy the value of the first, and possibly both, because it will
> not be clear what we are asking people. So, please, keep our
> questions focused and clear, and pursue other agendas in other ways.
>
> Let both kinds of agendas be pursued in the say way, or equal
> opportunity be given to both .... We can have a questionnaire in two
> parts, and in any case, the nature of the question will make very
> clear
> what is being sought by which question.
>
> p
>
>
> >
> > --MM
> >
> >> I do not think that this immunity can be gained in the WS2
> timeframe, but I do
> >> believe that WS2 could initiate yet another CCWG effort to work
> on that, if the
> >> consensus of the group were to do so.
> >>
> >> But first we need more of the background information, the
> so-called facts. We
> >> have to remember that with NTIA oversight, the application of
> some laws may
> >> have been different than it might be going forward. We need to
> understand
> >> whether that is the case or not, and whether there are laws
> that could now be
> >> applied to ICANN's activities that were not applied before.
> >>
> >> avri
> >>
> >>
> >>
> >> On 26-Nov-16 05:08, parminder wrote:
> >>>
> >>>
> >>> On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
> >>>> Sorry, Parminder, I see this as a request for opinions, not
> facts.
> >>>> The whole point of this exercise is to gain specific factual
> cases
> >>>> that show actual issues, not to provide people with an excuse to
> >>>> complain about what the "think are the problems." I would reject
> >>>> adding such a question to the list
> >>>>
> >>> Milton, you probably mean, you are against adding such a
> question :).
> >>> I dont see you have any authority to reject anything any more
> than I
> >>> have to reject your original formulation.
> >>>
> >>> Was not the community accountability mechanism instituted just
> on the
> >>> basis of "what people think are the problems"? I saw no efforts to
> >>> gather facts with surveys 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 absence of a community accountability mechanism ?
> >>>
> >>> If any such known 'facts' exist I am unaware of them and will
> like to
> >>> know.
> >>>
> >>> In case of the question of ICANN's jurisdiction of incorporation
> >>> analytical facts are rather more evident, as raised in the civil
> >>> society statement.
> >>>
> >>> The process we employ can lead towards certain kind of
> outcomes rather
> >>> than others. And I see this particular process being aimed at
> >>> foreclosing the jurisdiction of incorporation question. This
> is fact
> >>> the "application of public laws question" because immunity
> from such
> >>> application can be obtained even without changing ICANN's place of
> >>> jurisdiction.
> >>>
> >>> Meaning ICANN can stay incorporated as US non profit in
> California,
> >>> and it exempted from application form various public laws as
> per the
> >>> US immunity act that I cited. I also said that, as far as I can
> >>> understand, it is possible to keep the private disputes
> arising from
> >>> ICANN's organisational system, including those about
> enforcement of
> >>> community powers, to be subject to US/ Californian law,
> strictly only
> >>> for such dispute resolution as per ICANN bylaws. We need to
> hear from
> >>> this group why this is not possible or not preferred...
> >>>
> >>> parminder
> >>>
> >>>
> >>>>
> >>>> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> >>>> [mailto:ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *parminder
> >>>> *Sent:* Wednesday, November 23, 2016 11:54 PM
> >>>> *To:* ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>
> >>>> *Subject:* Re: [Ws2-jurisdiction] first draft of fact
> solicitation
> >>>> questions
> >>>>
> >>>>
> >>>>
> >>>> I will like to add a general question to the below:
> >>>>
> >>>> What do you think are the problems, if any, with continued
> >>>> jurisdiction of the US state over ICANN, as a US non-profit?
> Please
> >>>> justify your response with appropriate examples, analysis, etc.
> >>>> Especially, if there are existing and past instances that
> highlight
> >>>> such problems please indicate them.
> >>>>
> >>>> 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 <tel:%2B1.415.738.8087>
> >>>>
> >>>> http://rodenbaugh.com
> >>>>
> >>>>
> >>>>
> >>>> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
> >>>> <milton at gatech.edu <mailto:milton at gatech.edu>
> <mailto: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
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>> _______________________________________________
> >>>> Ws2-jurisdiction mailing list
> >>>> Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>
> <mailto:Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>>
> >>>>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>> _______________________________________________
> >>>>
> >>>> Ws2-jurisdiction mailing list
> >>>>
> >>>> Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>
> <mailto:Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>>
> >>>>
> >>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
> >>>>
> >>>>
> >>>>
> >>>
> >>>
> >>> _______________________________________________
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> >>
> >>
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