[Ws2-jurisdiction] The Gap Analysis: Question, Method and Objective -- Proposal for Comment

Sat Oct 1 21:26:30 UTC 2016

Typo
K

2016-10-01 20:38 GMT+02:00 farzaneh badii <farzaneh.badii at gmail.com>:

>  Mr. Arasteh, I would be grateful if you could be precise when you mention
> the  SO/AC accountability group. It is not SO7AC mutual accountability
> group but SO/ACs accountability group. There is no "mutual" in the title,
> and it is critical to note this.  Assessment of mutual accountability
> roundtable is only one of the tasks of the SO/ACs accountability group.
> Calling the group mutual accountability group can raise an enormous amount
> of confusion. Thank you.
>
> On 29 September 2016 at 23:17, Kavouss Arasteh <kavouss.arasteh at gmail.com>
> wrote:
>
>> Thomas, Thank you for your ambiguous analysis your analysis is too
>> psychological and to some extent too diplomatic
>>
>> Please clear the views that you have expressed in the following manner.
>>
>> 1. Do you believe the GAP analysis that identified in WS1 as pointed by
>> Jorge were right or wrong?
>>
>> 2. Do you believe that GAP analysis is merely an implementation issue?
>>
>> 3. Do you think the entire world community/ multistakeholder should blind
>> by abide to  a single Law for example in case of dispute resolution ?
>>
>> Do you believe that the sub working Group should raise the question
>> requesting people to identify whether or not there is or there would be Gap
>> in the implementation of accountability? And if yes, what are those gaps
>> and how they should be resolve under which law.
>>
>> At this Group and Human rights Group, there is one or two persons to ping
>> pong us to 7 from implementation and providing tutorial repeated lecture
>> containing many words that take us to nowhere.
>>
>> We should start from some where ? then where we have start ? the way you
>> described’ The way Grec described?
>>
>> The way Pedro described?
>>
>> There is full divergence and no one is capable to reconcile to one or few
>> options to start .We have had about 6 meeting and we are on square one.
>>
>> The reality is that some people are of the view that everything works
>> well.
>>
>> This Group and Human Rights Group and SO7Ac mutual accountability groups
>> are totally lost.
>>
>> 2016-09-29 21:51 GMT+02:00 Thomas Rickert <thomas at rickert.net>:
>>
>>> Not sure this is helpful, but wrt the GAP analysis, my thinking is the
>>> following:
>>>
>>>
>>>
>>> - Our group has established accountability requirements in WS1. These
>>> have been implemented. So we have what we have and imho it is not even
>>> necessary to get that confirmed by the lawyers. For sure they did not put
>>> anything in the bylaws that contravenes Californian law. So that is the
>>> status quo.
>>>
>>>
>>>
>>> - Our system was designed for californian law and that works fine for at
>>> least the local folks. So what needs to be done wrt to the WS1
>>> recommendations is to see whether there are stakeholders that cannot make
>>> use of the accountability features because of legal hurdles. If such case
>>> arises, that would constitute a gap and then we would need to check how to
>>> fix that. Now, you cannot do such examination as a desk research for all
>>> jurisdictions around the world, but I think the group could check whether
>>> they are aware of any such issues and also we could use a public comment
>>> period to identify potential problems. Should there be none, then no
>>> patches for WS1 are required. I am intentionally saying "patches" as we
>>> would not change the existing system, but only fix issues by adding extra
>>> bits to fill gaps.
>>>
>>>
>>>
>>> - The gap analysis was really meant for the new accountability features
>>> to be designed in WS2 to check whether there are issues in implementing
>>> those under californian law. Only in case that is not possible, patches
>>> need to be discussed and only if it is not possible to make important
>>> accountability features cannot be implemented, that would open the door for
>>> a comparative analysis of other legal systems.
>>>
>>>
>>>
>>> - Also, I think what should be covered in the jurisdiction issue are
>>> issues of conflicting law and applicable law for ICANN's contracts and
>>> dispute resolution. We know the data protection issues for certain parts of
>>> the world. We know the data retention issues for certain parts of the
>>> world. We know that UDRP and URS need to be agreed with registrants, but in
>>> fact, these cannot be validly included in terms and conditions for
>>> consumers. These are the areas where I think it is not appropriate for a
>>> global monopoly to request the rest of the world to play by US-law and
>>> apply for exemptions in costly, time-consuming and cumbersome processes.
>>>
>>> Thomas
>>> ...
>>> rickert.net
>>>
>>>
>>> Am 27.09.2016 um 16:35 schrieb McAuley, David <dmcauley at verisign.com>:
>>>
>>> Thanks Greg,
>>>
>>>
>>>
>>> Because Paragraph 30 of Annex 12 says that “Confirming and assessing the
>>> gap analysis ….” will occur in the context of focusing on the settlement of
>>> dispute jurisdiction issues I think your approach would be fine if all
>>> three numbered items in your note are construed within that Paragraph 30
>>> focus – in other words, that our analysis be only insofar as the questions
>>> relate to the settlement of dispute jurisdiction issues.
>>>
>>>
>>>
>>> David
>>>
>>>
>>>
>>> David McAuley
>>>
>>> International Policy Manager
>>>
>>> Verisign Inc.
>>>
>>> 703-948-4154
>>>
>>>
>>>
>>> *From:* ws2-jurisdiction-bounces at icann.org [
>>> mailto:ws2-jurisdiction-bounces at icann.org
>>> <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *Greg Shatan
>>> *Sent:* Tuesday, September 27, 2016 1:37 AM
>>> *To:* ws2-jurisdiction at icann.org
>>> *Subject:* [Ws2-jurisdiction] The Gap Analysis: Question, Method and
>>> Objective -- Proposal for Comment
>>>
>>>
>>>
>>> All,
>>>
>>>
>>>
>>> Based on the call today, I'm presenting the following as the proposed
>>> path forward on the Gap Analysis:
>>>
>>>
>>>
>>> 1. *The Question*.  Whether each of the accountability measures
>>> proposed in Work Stream 1 can be implemented under ICANN's current
>>> jurisdictional framework without any gaps.  (Implementation "without any
>>> gaps" means the ability to apply an accountability measure to, and
>>> ultimately enforce that measure against, ICANN.)
>>>
>>>
>>>
>>> 2.  *The Objective*.  The first objective is to determine whether there
>>> are any "gaps," i.e., whether any of the WS1 accountability measures cannot
>>> be fully implemented under ICANN's current jurisdictional framework.  After
>>> possible gaps are identified, the subgroup will examine each possible gap
>>> to determine if it is in fact a gap.  A list of identified gaps will be
>>> prepared.  (After the gap analysis is completed, the subgroup will then
>>> explore possible ways to "close the gap" for each applicable accountability
>>> measure, i.e., to implement the measure effectively.)
>>>
>>>
>>>
>>> 3. *The Method*.  The Final Proposal of WS1 will be posted as a Google
>>> Doc.  Subgroup members are asked to assign themselves one chapter of the
>>> Proposal to review for "gaps."  Notes on potential "gaps" can be made
>>> directly on the Google Doc proposal as comments.  A separate sign-up sheet
>>> will be posted, also as a Google Doc.  Subgroup members that cannot access
>>> Google Drive can put their chosen "assignments" into an email, and can also
>>> provide their analysis via email as well.  Subgroup rapporteurs and staff
>>> will make the necessary notations.
>>>
>>>
>>>
>>> Comments are requested and appreciated. However, in order to keep up the
>>> momentum, the Final Proposal and sign-up sheet will be posted on Tuesday,
>>> September 27.  Our question, objective and method can be further refined
>>> even as we move forward.
>>>
>>>
>>>
>>> I look forward to your comments and to seeing the assignments and
>>> analyses in the coming days and weeks.
>>>
>>>
>>>
>>> Best regards,
>>>
>>>
>>>
>>> Greg
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
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>>> Ws2-jurisdiction at icann.org
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>
>>>
>>> _______________________________________________
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>>>
>>>
>>
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>>
>
>
> --
> Farzaneh
>
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