[Ws2-jurisdiction] first draft of fact solicitation questions
parminder
parminder at itforchange.net
Tue Nov 29 03:03:27 UTC 2016
Greg
I fully disagree that the reason for the group not making progress is
that people have been inappropriately focussing on and discussing the
problems with the application of US public law on ICANN, and possible
remedies. In fact that has been the only *substantive* discussion, and
to that extent, some progress, in this group. Let me explain what I mean.
I had suggested three key areas of work, and for us to simultaneously
work on them. I had described these as follows
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
This is not much different form how you describe or detail the
jurisdiction issue (the subject matter of this subgroup) in your latest
email. To quote;
*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 or contacts with that country, or (c)
any “choice of law” or venue provisions in agreements with ICANN.*
So, here we agree on the three sub divisions of the jurisdiction issue.
Now, the fact is that while there has at least been a framing of the
problems, with some precise instances/ examples, that we are trying to
solve, for the issue of "US public law application on ICANN" (your (a)),
I have seen no one here provide that for your (b) and (c). This is the
reason that I asked that lets also so something in these areas.
I have not seen the framing of statement of problem, and its elaboration
with real examples/ instances, for (b) and (c). I am not saying that
therefore there that there is no problem here. But please, those who
consider these two be the most important areas of our work, do provide
us with the nature of problem, its instances, and possible things we can
and should do about them... That will make us move forward in these areas.
After-all, for this group to do something, there has to be real
problems, and, equally, /*some real possibilities to do something about
them*/. A lot of work has been done here in the last many days of
framing and detailing the problem with "application of US public law on
ICANN" (your (a)), and even laying out some directions in which remedies
may lie. (Of course there is not much value in discussing a problem to
which there is no possible remedy, and to that extent remedy related
discussions will always come in.)
But those who feel there is nothing to do about your (a) but it is (b)
and (c) that are the real issues have not at all come forward to frame
these issues - in terms of their actuals, and possible directions of
remedies. They seem to have spent all their time to arguing that any
kind of problems with (a) do not exist! I do not think this is fruitful
way for us to go forward.
/*Let this group first frame the problems that exist in (b) and (c),
with actual details/ examples, with at least some inkling about the kind
of resolutions that can be had. Fortunately, this has been done to a
good extent regarding (a).*/
After we have undertaken that kind of exercise, if required we can
approach the wider community/ public about more clear and specific
knowledge that may exist outside the group.
Having not done such preliminary work to expound and exemplify, with
possible actions, categories (b) and (c), this whole exercise to unearth
the precise person that has had a precise experience with regard to the
DNS system, to me, seems aimed at nothing other than to collect a nil
report with regard to (a), and then show in this new way, again, that
there indeed is no problem in this area. Therefore, the group really is
still only moving around issues under (a), whether in asserting them or
denying them. It is because of being caught in this negative situation
that we are not making progress.
If we indeed at this stage are for collecting information about the
nature of the jurisdiction issue in its three way categorisation, lets
be open to collecting information, and compiling it, rather than focus
on limiting the exercise. After all, what are we afraid of? It is not
that hundreds of responses will come to our questionnaire that we will
simply not be able to deal with! I can safely put the outer limit at 25,
and that is pretty generous. We can just ignore what we find not of
relevance.
But before going out of the group, I will like this group to make some
clear enunciation of the categories (b) and (c), with problem statement,
actual issues, and likely directions of resolution. And while doing
that, lets not try and stop progress in one area where some progress is
being made, which is Greg's (a) above. We need to get out of a negative
mindset that this group seem to have got struck into.
parminder
On Monday 28 November 2016 07:42 AM, 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>
> >>>>
> >>>>
> >>>>
> >>>
> >>>
> >>> _______________________________________________
> >>> Ws2-jurisdiction mailing list
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> >>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
> >>
> >>
> >> ---
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