[Ws2-jurisdiction] first draft of fact solicitation questions
parminder
parminder at itforchange.net
Tue Nov 29 15:39:47 UTC 2016
On Tuesday 29 November 2016 06:28 PM, Vinay Kesari wrote:
> 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?".
Dear Vinay, thanks for this note. Can you please tell where did you pick
up the above text under quotation marks, as describing the definite
scope for the sub-group. My question is sincere and genuine. I really
want to know clearly what is in scope and what not. I looked up Annex 12
but did not find this sentence there.
> 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'.
In your above definition of scope, "choice of law, venue' is clearly
mentioned, seemingly as an essential definitional part. This term
'choice of law/ venue' pertains only to one layer of jurisdiction, even
as such layers are described in Annex 12 as well in the current google
doc on layers of jurisdiction that we are working on. I call it the
private law part, which is about private contracts as developed by
contracting parties. Only in this regard 'choice of law/ venue' is
meaningful. It is not meaningful for application of public law, those
laws about which there is no choice available to any party - it is
decided by place of incorporation/ location.
> 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.
Is there any other doc in this regard than Annex 12? Again, a sincere
question. If the scope of this group indeed comes from the sentence you
quoted, I see it only to cover private law as applicable to contracts.
Then the scope of this group simply does not cover various public laws,
about which legal persons existing within territorial limits of a state
just have no choice of law, these laws necessarily apply.
Is this indeed is a fact, let it then be made clear. I asked exactly
this same question at the physical meeting in Hyderabad. I thought that
the answer by Greg and CCWG chair indicated that public law jurisdiction
is within scope. But this is now again thrown in doubt.
All,
Speaking of facts, lets us first get this fact clear -- is public law
jurisdiction - compulsory ( no choice) jurisdiction of the place of
incorporation/ physical location, where no choice of law/ venue is
available - of ICANN within scope of this group or not?
I think we should not proceed further without getting this fact right,
about our own selves, making it very very clear -- and have a common
understanding of it.
If we do so, a lot of shadow boxing here will stop, which happens
because of different conceptions of what exactly we are doing here. So,
arguments go simply past one another. And I think this needs to stop for
this group to make any progress at all.
To exemplify from today's call. I was surprised to hear a few people say
that we need to reach out only to the DNS industry, or thereabout. But
now I can understand that if the remit of the group is only such law
where choice of law/ venue is available, meaning contracts etc, of
course this mostly only covers the interests of parties directly
entering such contracts, which is the DNS industry.
Some people like me, on the other hand, are here only with a wider
public interest point of view. I have nothing against the concerns of
the DNS industry but that kind of thing simply isnt what I, my
organisation, and networks that I work with, have any interest in. I
come with an interest in wider public interest issues, which really is
about public laws that get applied to ICANN activities, where choice of
law/ venue is not available
So, both sides are right, from where they stand, and how they see
things. It is for the group, led by the chairs, to make it fully clear
what is in scope and what not.
If public law, or such law with no choice of law/ venue, is indeed not
in scope, let this be made clear upfront. That will solve a lot of things.
However, if public law, or such law where choice of law/ venue is
definitionally not available, is within scope, then let it "fully and
completely" be in scope. And then let us not drag our feet doing what we
need to do, which requires a different approach from an individual/
private interests based approach. I think this lack of clear resolution
of what is in scope and what out is also behind the contestations about
the questionnaire. If we resolve the root cause, we will be able to make
progress.
Again, what i am asking is, let us make fully clear whether public law
issues (where no choice of law is available) are in scope, or only
private law area (where choice of law/ venue is available to the
involved parties) is in scope. No point making unending arguments based
on different understanding of the scope of the group.
parminder
>
> 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
> <mailto: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
>>> <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>
>>> <mailto:Ws2-jurisdiction at icann.org
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>>> >>>>
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