[Ws2-jurisdiction] RES: first draft of fact solicitation questions
Greg Shatan
gregshatanipc at gmail.com
Wed Nov 30 16:30:29 UTC 2016
Chris,
Thanks. Probably the most accurate formulation would be:
*(b) … as a result of its location within or contacts with that country.*
(The latter making reference to the concept of "minimum contacts" with a
place as a basis for choice of law and jurisdiction.)
Greg
On Wed, Nov 30, 2016 at 11:23 AM, CW Mail <mail at christopherwilkinson.eu>
wrote:
> Dear Greg:
>
> I have not been able to follow the whole of this discussion in recent days.
> However, I find that this outcome is acceptable from my point of view.
>
> In the footnote, I would suggest the following amendment:
>
> *(b) … as a result of its location or contacts within that country.*
>
> CW
>
> On 30 Nov 2016, at 17:00, "Mueller, Milton L" <milton at gatech.edu> wrote:
>
> These modifications look great to me. I would support moving ahead with
> them
> --MM
>
> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-
> jurisdiction-bounces at icann.org] *On Behalf Of *Greg Shatan
> *Sent:* Monday, November 28, 2016 6:07 PM
> *To:* ws2-jurisdiction at icann.org
> *Subject:* 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>
> 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>
> 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> 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
>
> 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 *parminder
> *Enviada em:* domingo, 27 de novembro de 2016 04:34
> *Para:* 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 <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> <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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>
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>
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>
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