[Ws2-jurisdiction] RES: first draft of fact solicitation questions
avri doria
avri at acm.org
Tue Nov 29 18:28:34 UTC 2016
Hi,
I do not understand why the connection to other possible jurisdiction.
The fact is that we are within a US jurisdiction.
avri
On 28-Nov-16 16:41, Paul Rosenzweig wrote:
>
> I would oppose this as it relates to future risks unless the
> responders also identified other potential jurisdictions where those
> future risks would not be realized and assessed the future risks of
> those potential jurisdictions of transfer.
>
>
>
> Speculation about future problems is fruitless unless it is
> comprehensive. Retrospective inquiry as to past problems is fact
> based and useful. Let’s do the useful …
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Pedro Ivo
> Ferraz da Silva
> *Sent:* Monday, November 28, 2016 4:07 PM
> *To:* ws2-jurisdiction at icann.org
> *Subject:* [Ws2-jurisdiction] RES: first draft of fact solicitation
> questions
>
>
>
> 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
>
>
>
> 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>
> [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] *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
>
>
>
> 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>
>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>
>
>
>
>
>
>
>
>
>
>
>
>
> _______________________________________________
>
>
>
> 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>
>
>
>
> 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
>
>
>
>
> ---
> This email has been checked for viruses by Avast antivirus software.
> https://www.avast.com/antivirus
>
> _______________________________________________
> 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
---
This email has been checked for viruses by Avast antivirus software.
https://www.avast.com/antivirus
More information about the Ws2-jurisdiction
mailing list