[Ws2-jurisdiction] first draft of fact solicitation questions
parminder
parminder at itforchange.net
Tue Nov 29 09:49:13 UTC 2016
Greg
I am extremely bothered at what you repeatedly state as allowing some
kind of temporary freedom to this group in which, it would appear,
unruly people have discussed things that were not supposed to be
discussed. Apart from putting this on record, I do not at this stage
want to draw out the implications of such statements from one of the
chairs of an open working group.
I also again reviewed the post Hyderabad discussions on this list, and I
found them quite rich and useful. I do not see how the chair has a right
to call this as a fallow time for the group. I dont see how a rich
discussion on the influence that US incorporation of ICANN has on its
policy and operational activities can be considered an unproductive and
undesirable discussion. It seems that this group has to march narrowly
to the drums, the tune of which I cannot fully make out. It is beginning
to feel more than a bit stifling.
Next, you seem to be offended even if I take, or propose, your own three
way definition of "ICANN jurisdiction", as the statement of issues that
this WG could consider, whose express purpose is to consider the "ICANN
jurisdiction" issue. Something seems very amiss here. And you call this
as pursuing my agenda. I think I was being extremely fair to all three
dimensions of ICANN jurisdiction - as you yourself put it. And you
ignore that many comments in this discussion that have supported both
(1) the US public laws application - or jurisdiction of incorporation -
being a key issue and (2) changing the proposed question of external
inquiry to include problems that arise from existing US laws/
institutions, owing to the latter's very nature, which is no less a
factual thing than anything else . Apart from that fact I think an
ordinary member having an express agenda here is rather less problematic
that one of the chairs who mostly has been 'the' chair.
It is strange that you say that your three way description of what
"ICANN jurisdiction" means is a statement of facts and not of issues. I
did not understand the meaning of this statement. Are we not to proceed
from the facts of what ICANN Jurisdiction means to frame the issues or
lines of our inquiry? What could be a better way to proceed than this?
Especially with our so pronounced stress on facts.
Does this group's work now stand on the single pointed agenda of finding
personal experiences of people negatively affected by current state of
US jurisdiction? Lets say, even if we agree to send out such a
questionnaire, (1) would we really be holding our breath that the
responses would give us all we need to proceed further, and (2) if 2 -3
weeks are given for comments, are we declaring a holiday in the interim.
Bring the whole task of this group to this one, IMHO very
inappropriately made, questionnaire is indeed very problematic.
Meanwhile, let me again state that, like many others, I completely
disagree with the current form of the questionnaire. I would think that
the job of chairs is to try to build consensus around what can go out in
the name of the group then just giving one sided views on this issue.
parminder
On Tuesday 29 November 2016 12:43 PM, Greg Shatan wrote:
> Please see responses inline below.
>
> On Mon, Nov 28, 2016 at 10:03 PM, parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
> 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
>
> Parminder,
>
> These three items may be your agenda, but they are not the agenda of
> this group. Perhaps you think "progress" was made because you engaged
> in a discussion of your agenda on this mailing list while the
> documents we are working on were "frozen" and the list was allowed to
> operate unmoderated. But that is not progress for this group.
>
> 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.
>
> No. The statement you quote above is a statement of fact, not a
> statement of issues.
>
>
>
> 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.
>
> No. We are not "trying to solve, for the issue of "US public law
> application on ICANN." Again, this is your agenda, not the agenda of
> this group. Again, (a) above is merely a statement of fact; it is not
> a statement of the work of this group.
>
>
> 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.)
>
> Again, your statement of your agenda is not "my (a)" and frankly, I
> think it is an unfortunate attempt to twist my words.
>
>
> 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.
>
> This is a mischaracterization of the work of this group. I see no
> need to respond further.
>
> /*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).*/
>
> This is not the agenda of the group. Thank you for the suggestion,
> but we already have work underway, which does relate to choice of law
> and venue, but not in the way you frame it. We're going to stick to
> the plan of the group.
>
> 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.
>
> I think you misunderstand the nature of the experience-gathering
> effort, perhaps because you do not understand the concerns that
> stakeholders have about governing law and venue. You also ignore the
> considerable amount of discussion regarding these issues; perhaps this
> took place while you were disengaged from the work of this group. I
> suggest you go back and review email traffic and meeting transcripts
> before the last 3 weeks.
>
>
> 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.
>
> We are not "collecting information about the nature of the
> jurisdiction issue in its three way categorisation." We are seeking
> to collect actual experiences that people and entities have had where
> "ICANN's jurisdiction" has come into play, based on the discussion on
> the prior call of this group and the questions drafted in conformance
> with the plan on that call. I've suggested some revisions to those
> questions. Other than co-opting the definition of "ICANN's
> jurisdiction" from that suggestion in order to argue in favor of your
> agenda, you have not responded to those edits.
>
>
> 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.
>
> i do not perceive any "negative mindset" in this group, unless you
> are referring to disagreement with your agenda, which is not going to
> replace the ongoing work of the subgroup. I'll just point out one
> more time that the statement that ICANN is "subject to U.S. and
> California law as a result of its incorporation and location" is a
> fact statement and not a problem statement or a statement of this
> group's agenda, and that the unmoderated discussion on this list that
> ranged off the path of our work is not what we are working on. I'm
> sorry if allowing a little freedom on the list to detour from the work
> of the group, during an otherwise fallow time for the work of the
> group, has been misconstrued as putting that discussion on our
> agenda. Hopefully that misunderstanding has now been put to rest.
>
> Greg
>
> 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>>
>> >>>>
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>> >>>>
>> >>>>
>> >>>>
>> >>>>
>> >>>>
>> >>>>
>> >>>> _______________________________________________
>> >>>>
>> >>>> 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>>
>> >>>>
>> >>>>
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>> >>>>
>> >>>>
>> >>>
>> >>>
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