[Ws2-jurisdiction] first draft of fact solicitation questions
parminder
parminder at itforchange.net
Tue Nov 29 09:59:36 UTC 2016
The last email contained statements of my general discomfiture.
More to a specific point:
On Tuesday 29 November 2016 12:43 PM, Greg Shatan wrote:
> SNIP
> 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.
I read the above to say that the issues arising from ICANN being
"subject to US and California law as a result of its incorporation and
location" , or any kind of discussion on this, is not on the agenda of
the group.
(And that it was the inappropriate use by a few of some leeway and
freedoms allowed by moderators of this group that allowed this agenda to
be sneaked it, something which is to be remedied right away.)
I am confounded. I thought we were pursing all kinds of influences that
ICANN's jurisdiction has on its polices and operations, but at this
stage not necessarily looking to remedies ( it is a different matter
that discussions on two things can never logically be fully separated.)
Co-chairs, would you please make it fully clear what is and is not on
the agenda of this group.
parminder
>
> 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
>> >>>>
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>> <mailto:Ws2-jurisdiction at icann.org>
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>> >>>>
>> >>>
>> >>>
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