[Ws2-jurisdiction] RES: RES: first draft of fact solicitation questions

Tue Nov 29 12:15:11 UTC 2016

Greg,

We can discuss this more thoroughly in the upcoming subgroup call, but let me just briefly indicate that you are not taking into account the question proposal  submitted by Parminder and that received the support of at least two other participants of this subgroup. I understand the wording of the question can be enhanced in order to incorporate comments made by some colleagues (including you), but by no means should it be left out, for the reasons I have indicated below.

Thanks and regards,

Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609

Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609

De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Em nome de Greg Shatan
Enviada em: segunda-feira, 28 de novembro de 2016 21:07
Para: ws2-jurisdiction at icann.org
Assunto: Re: [Ws2-jurisdiction] RES: first draft of fact solicitation questions

Bringing this thread back to its original purpose -- reviewing and revising the first draft of the experience-based questions.

Having reviewed the comments in this thread which focused on the questions, I propose the following revisions.  First, I've added "situations" along with "cases" and "incidents" to make it clear that we are looking for all types of experiences, not just disputes or adversarial situations (and certainly not only court cases, as one participant incorrectly surmised).  Second, to avoid bias in the questions toward seeking out problems, I've added a short sentence noting that 'effects' can be positive or negative.  Third, in response to suggestions that we also look for accounts of actual experiences beyond those responding, I've added a third question asking for reports of other experiences.  Finally, I've added a footnote to clarify what is meant by "ICANN's jurisdiction," which is based on the "Multiple Layers of Jurisdiction" document.  Please reply with any further comments you may have on these revised questions.

Greg

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, situations or incidents, including the date, the parties involved, and links to any relevant documents.  Please note that “effects” may be positive or negative.

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, situations or incidents, including the date, the parties involved, and links to any relevant documents.    Please note that “effects” may be positive or negative.

3.       Do you have copies of and/or links to any reports of experiences of other parties that would be responsive to the questions above?

If the answer is yes, please provide these copies and/or links.
_____________________________
*  For these questions, “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.

On Mon, Nov 28, 2016 at 5:30 PM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
To assist those who have misplaced the link to the Google Drive document we are supposed to be working on:

The document is entitled "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?"

https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit?usp=sharing

We are also continuing to work on the "Multiple Layers of Jurisdiction" document (which hasn't been touched since October 30): https://docs.google.com/document/d/1oE9xDIAJhr4Nx7vNO_mWotSXuUtTgJMRs6U92yTgOH4/edit?usp=sharing

On Mon, Nov 28, 2016 at 5:07 PM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
Pedro,

At no point has anyone ever suggested that we should "only make recommendations based on problems/issues identified in the past."   That is a fallacy, and had no bearing on what type of solicitation we are going to make.  Therefore, it's inappropriate to cite that mistaken idea as support for any proposition.

It has always been our plan to look at "perceived risks and threats" -- and also at perceived advantages and protections -- "that the current jurisdictional arrangement entails."  That is what we have been doing.  The lack of fact-based experiences coming from within the group led to the suggestion that we quickly solicit such experiences from outside the group.  That's all that was intended in this exercise.

I do not see this question as being in any way "evidence based" merely because it asks for "evidence."  In any event, what we are trying to achieve is an "experience-based" inquiry, not merely an "evidence based" inquiry.  I also note that the question exhibits a high degree of bias -- it only asks about "problems" and "interference".  An unbiased question would also ask about advantages and protections, and ways in which the current jurisdictional arrangement supports ICANN's ability to carry out its mission.  i also find the focus on the concept of the "jurisdiction of the US state over ICANN," to be quite puzzling.  The primary focus of this group has been on the effects of "governing law" (whether it results from a legal or physical location of ICANN or from a contractual provision, etc.)  and not on some idea that the US Government is somehow poised to strike and exercise unilateral power over ICANN in some undefined (and possibly non-existent) fashion.

If some version of this question is asked at all (after resolving the serious issues in its construction), it should be asked of members of this group.  Opinions and analysis are the heart of any working group's work.  This work should not be "crowdsourced."

Meanwhile, I note that the Google Drive document we are actually supposed to be working on has not been touched since November 14 (other than some minor edits I made on November 21).  That's two weeks in which our work could have advanced, but did not.  As noted before, we need to refocus on our work in progress if we are going to make progress.

Greg

On Mon, Nov 28, 2016 at 4:07 PM, Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br<mailto:pedro.ivo at itamaraty.gov.br>> wrote:
Dear subgroup colleagues,

I would like to support Parminder's rewritten question below. I believe it perfectly complies with the general requirement of a evidence based approach and it complements the two original questions since it introduces the element of future likelihood.
Our group should not only make recommendations based on problems/issues identified in the past, but also on perceived risks and threats that the current jurisdictional arrangement entails.

I also support Mike Rodenbaugh's suggestion to broaden the scope of the questions. I think we should welcome the input of any stakeholder that may have facts and genuine (well-founded) issues to present.

Finally, in order to eliminate the possibility of confusion, I would support dividing the document in two sessions: 1. Fact solicitation/ 2. Perceived risks

Regards,

Secretário Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação (DI)
Ministério das Relações Exteriores - Brasil
T: + 55 61 2030-6609<tel:%2B%2055%2061%202030-6609>

Secretary Pedro Ivo Ferraz da Silva
Division of Information Society (DI)
Ministry of External Relations - Brazil
T: + 55 61 2030-6609<tel:%2B%2055%2061%202030-6609>

De: 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>] Em nome de parminder
Enviada em: domingo, 27 de novembro de 2016 04:34
Para: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Assunto: Re: [Ws2-jurisdiction] first draft of fact solicitation questions

On Saturday 26 November 2016 08:23 PM, avri doria wrote:

Hi,

I am among those who would like to see a question included along the

lines Parminder suggests. It should, however, be made by specific

reference to existing laws that could be used to interfere with ICANN's

ability to provide service to customers in other countries.

I think that Avri's proposal would be a good way to go about it, as long as we do not the circumscribe the inquiry too much. I would prefer a general question, plus a specific component, like

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, please indicate if there are existing and past instances that highlight such problems. Also, in terms of future likelihood, please mention specific institutions/ laws etc of the US state that could be used to interfere with ICANN's ability to provide global governance services to all people of the world, including in non US countries.

(Pl note that I have replaced the last part on services to customers in other countries to global gov services to all people.)

While I strongly support keeping the incorporation in CA in the US

because the yet to tested accountability process depends on that,

I am happy to support a separate exercise seeking expert opinion on whether accountability process does or does not pertain to private law which can choose its own jurisdiction of adjudication (as most private contracts can), irrespective of whether ICANN is subject to US public laws or not, as having immunity from them, whether on basis of an international law incorporation of US state granted immunity under the mentioned immunity laws of the US. In this manner, to ascertain whether ICANN's new accountability mechanism can or cannot still be adjudicated upon by Californian law/ courts, on the basis of making the necessary provision in ICANN's bylaws.

 I also

support an effort to look for immunity from laws that affect ICANN

ability to serve clients internationally - be they governments,

companies or individuals.  This immunity should be restricted to ICANN

performance of its mission in relation to international entities and

_not_ relate to contract law, labor law or local ordinances on garbage

pickup.

Of course, that is exactly what is sought. And that is possible in my view to do with immunity under the US immunity provisions.

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.
The purpose of the WS2 is to make recommendations and for ICANN to begin action on that basis. That can be done in a few months, if agreed to.. It is not about necessarily completing the process within WS2 time frame. If WS2 does not give this rec, and passes it on to WS3, the same problem will arise; if we would not have begun working on it, immunity cannot be gained within any WS# time period as well, which then becomes an infinite process .....

Let us be very clear; if we are working on immunity from US under relevant current provisions of US law, we can only recommend, as the wish of the world community. It if of course for the US state to act on it or not. But I would find it extremely strange for us not to arrive at a rec which in our view if what preserves the global public interest best, and is quite possible/ practical to do, just because we begin second guessing whether US state will actually do it, and if so, in what time frame. That I do not think if the job of this group or of CCWG as a whole.

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.

Yes I agree. This is a kind of investigation that is needed. Meanwhile, let me add, and I think this is what Avri is already alluding to, as now being not under a US gov contract/ oversight, ICANN in fact , in one way, may be more exposed to the full power of all laws and institutions of the US state than before. It is now just another private organisation.

parminder

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] *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

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