[Ws2-jurisdiction] RES: first draft of fact solicitation questions
Nigel Roberts
nigel at channelisles.net
Tue Nov 29 20:05:50 UTC 2016
Very well put, albeit mildly prolix.
+1 from me!
On 29/11/16 19:48, Paul Rosenzweig wrote:
> Yup, and if we are to restrict ourselves to historical problems the
> limitation to US issues is perfectly understandable. But if we are going to
> allow speculation as to potential future issues that have not arisen and may
> never arise based on analysis that is grounded only in theory without any
> connection to practice then the natural question is whether those
> speculative harms would be ameliorated by changing jurisdiction and also
> whether changing would give rise to other, different, speculative harms. If
> we want to just guess, let's guess not only about the horrors of remaining
> in the US, but also the horrors of moving.
>
> P
>
> Paul Rosenzweig
> paul.rosenzweig at redbranchconsulting.com
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> www.redbranchconsulting.com
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
> -----Original Message-----
> From: ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of avri doria
> Sent: Tuesday, November 29, 2016 1:29 PM
> To: ws2-jurisdiction at icann.org
> Subject: Re: [Ws2-jurisdiction] RES: first draft of fact solicitation
> questions
>
> 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=0x9A830097CA06668
>> 4
>>
>>
>>
>> *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
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
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