[Ws2-jurisdiction] first draft of fact solicitation questions
Vinay Kesari
vinay.kesari at gmail.com
Tue Nov 29 12:58:26 UTC 2016
All,
I think that we risk losing sight of a few key facts here, given the length
and volume of this email chain:
1. *We already have a definite scope for this sub-group* - "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?". Engaging with this question
requires us to unpack what 'jurisdiction' means in this context, which is
why we are considering the 'multiple layers of jurisdiction'. The scope of
the subgroup, to the extent set out above, comes from the document which
created this group, the CCWG WS1 report. The subgroup did not decide its
own scope, and is not absolutely free to do so.
At the same time, none of this precludes consideration of any specific
*solutions* to problems that may be identified in this process. *No
potential solution has been taken off the table.*
2. The questionnaire which has sparked this round of discussion, was
intended (and continues to be intended) as a tool to assist us in gathering
facts. It is *in addition* to everything else we are doing. *The questions
or their responses do not circumscribe or limit the work of the subgroup in
any way.* Participants in the subgroup remain free to otherwise bring in
facts and problem statements relevant to our scope. The questionnaire was
never intended to be all-encompassing - therefore faulting it for not being
so, would miss the point somewhat.
3. I think it's important for all of us to focus on process. Identifying
problems first, and coming to solutions later, is a logical and
constructive way to move forward. It's not too difficult to tell one apart
from the other, and it is possible to consider them separately.
Here's wishing all of you a good call.
Regards,
Vinay
On 29 November 2016 at 15:29, parminder <parminder at itforchange.net> wrote:
> 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>
>> 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] *On Behalf Of
>>> *parminder
>>> >>>> *Sent:* Wednesday, November 23, 2016 11:54 PM
>>> >>>> *To:* 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
>>> >>>>
>>> >>>> http://rodenbaugh.com
>>> >>>>
>>> >>>>
>>> >>>>
>>> >>>> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
>>> >>>> <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>
>>> >>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> >>>>
>>> >>>>
>>> >>>>
>>> >>>>
>>> >>>>
>>> >>>>
>>> >>>> _______________________________________________
>>> >>>>
>>> >>>> Ws2-jurisdiction mailing list
>>> >>>>
>>> >>>> Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
>>> >>>>
>>> >>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> >>>>
>>> >>>>
>>> >>>>
>>> >>>
>>> >>>
>>> >>> _______________________________________________
>>> >>> Ws2-jurisdiction mailing list
>>> >>> Ws2-jurisdiction at icann.org
>>> >>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> >>
>>> >>
>>> >> ---
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>>>
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>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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>>
>>
>>
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