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

[Thomas Rickert]

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] 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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