[Ws2-jurisdiction] Notes, recordings and transcript for WS2 Jurisdiction Subgroup Meeting # 21 | 23 February 2017

Fri Feb 24 16:04:40 UTC 2017

Hello all,

The notes, recordings and transcripts for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #21 – 23 February 2017 will be available here:  https://community.icann.org/x/TJDRAw

 A copy of the notes and action items may be found below.

Thank you.

With kind regards,
Brenda Brewer, Projects & Operations Assistant
Multistakeholder Strategy & Strategic Initiatives (MSSI)
Internet Corporation for Assigned Names and Numbers (ICANN)
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Action Items:

  *   GS to complete editing of questions for ICANN Legal and forward to CCWG-Accountability for review.

 Notes (including relevant parts of chat):
15 Participants at start of call – 29 at halfway mark
1.  Welcome
Greg Shatan: no changes to SOIs. Agenda accepted.
2.  Questionnaire Update
a.         Method for processing responses
Christopher Wilkinson - Would be useful to have staff collate and classify.
Greg Shatan - Would be useful to have staff do this.
3.  Scope, Timeline and Work Product of Subgroup
Greg Shatan - We are late - would be good to get back on track. Will try to put together a timeline for your consideration. As to work product we have a number of documents that are all half-finished such as the Hypothetical. I am also thinking that we could possibly talk iteratively about remedies to some of the issues - i.e. the question of immunity.
David McAuley - thank you for these comments. Part of our challenge is the unfortunate language on jurisdiction in Annex 12. We may need to discuss scope again. wrt hypotheticals I do not agree - it is about the future that is uncertain - best to consider past and documentd cases. wrt influence of existing jurisdcition is a task for us and we may need to look at it again.
Kavouss Arasteh - (unclear on which point we are on, request clarification). Do not agree we do not look at the future we need to look at the future so disagree with DM.
Jorge Cancio (GAC Switzerland): discussing scope will get us back into circles... let's wait for the feedback to the questionnaire
Tatiana Tropina: discussing the scope can wait till we collect the responses, however, I agree with David re future and predictions vs. actual analysis on the basis of what already happened
matthew shears: agree with David on looking at the past litigation rather than hypothetical
Tatiana Tropina: Matt, yes, this might also help solving the scope problem
David McAuley (RySG): Thank you Kavouss - interesting point which I will consider
Gerg Shatan - past litigation analysis are necessary. Hypotheticals that are probable vs possible are probably very useful also.
Jorge Cancio (GAC Switzerland): past litigation might help emerge a part of the problems of the past - but other issues may not have got to the stage of litigation and are equally relevant
Tatiana Tropina: The analysis of past litigation can turn hypothetical prediction into analysis of future risks but this is rather risk assessment than hypothetical, Greg.
David McAuley (RySG): I agree w/ Greg that we might compose probable hypotheticals - I just don't think we can well guess at court reactions to those
Tatiana Tropina: David, +1 - we can only say if this is a serious risk or not based on our "assessment"
matthew shears: past litigation should at least enable us to put more relevant parameters and better scoping possible futures
Jorge Cancio (GAC Switzerland): Let us also always remember that accountability is to the global community
Tatiana Tropina: Matt, yes, that's how I see it. Moreover, the future can be, er, beyond anyone's prediction. Jorge, I remember this 24/7 :-)
Seun Ojedeji - re Hypotheticals if they are probably they should be looked at
Greg Shatan: Hypotheticals need to be reasonable likely and reasonably clear.
Kavouss Arasteh: The methodology to address the jurisdiction is totally unclear
Steve DelBianco: the way we designed Stress Tests in WS1 was to propose plausible scenarios that would test the accountability structures, both existing and proposed
matthew shears: if there is time perhaps we wait on legal responses and litigation findings and then revisit the hypotheticals - may help in narrowing the hypotheticals
Kavouss Arasteh: It is difficult to carry out this mixed discussion.
Steve DelBianco: It wasn't necessary for the scenarios to be "reasonaly likely". Only that they were plausible.
4.  Review & Finalize Questions for ICANN Legal
Greg Shatan - (Review of draft questions). any comments on the current version of the draft?
Kavouss Arasteh - need examples for 2A.
Becky Burr: Amsterdam
Becky Burr: Black Knight, a contracted party, is incorporated in Ireland. Maybe should read US states and US jurisdictions other than California.  For example, DC is not a state
Jorge Cancio (GAC Switzerland): Puerto Rico
Becky Burr: Guam, Virgin Islands, etc.
David McAuley - Please ignore my latest first comment. Why at then end to ask about the choice of venue which seems to be beyond our scope
Greg Shatan - these are amongst the multiple layers of jurisdiction.
Kavouss Arasteh: what is meant by General Jurisdiction and Specific Jurisdiction pls give examples
avri doria: aren't venue and jurisdiction related.  intrinsically
David McAuley (RySG): I think they are related but not the same and wonder why we ask about venue
Jorge Cancio (GAC Switzerland): Venue is an element in juridiction analysis
avri doria: becasue it can have a jurisdictional effect?
Jorge Cancio (GAC Switzerland): it may - for some issues - e.g. for procedural rules
Kavouss Arasteh -  what is the difference general jurisdiction vs specific and what is proper venue.
Greg Shatan: Proper venue = case can be heard there. As to jurisdiction - general jurisdiction over the entire entity and all matters vs specific which only
applies to certain purposes. Any objections to sending this to the legal committee.
matthew shears: Great idea Greg - lets send it on its way asap
David McAuley (RySG): A US federal court could decide that an issue in front of it is under both US and French jurisdiction – and dismiss the case based on its
belief that venue is proper in France. That would not destroy US jurisdiction.
matthew shears: yes, lets send it on its ways asap
Jorge Cancio (GAC Switzerland): I feel the answer to these questions may be helpful - although we may need to send in follow-up questions.
Kavouss Arasteh - when will get an answer to this?
Greg Shatan - any objections (none). DECISION: will send to Legal Committee once cleaned up per our discussions today and will ask to have an
estimate time for a response from ICANN Legal.
5.  Continue Work on Hypothetical #1
Greg Shatan - someone is suing ICANN because they have been harmed - they win - the court issues an order telling ICANN to do or not something (delegate or not a TLD).
Steve DelBianco - when I read this it is plausible scenario. However this is not the stress test approach.Need to compare how things play out in our current jurisdiction scenario vs others.
Greg Shatan - Difficult in this case.
Steve DelBianco: True, Greg   We made our scenarios somewhat more specific, and asked about how ICANN could be held accountable for how the corporation responded to the scenario
Greg Shatan - (looking at comments in document).
Kavouss Arasteh - difficult document. why we need to go so far in this straw man?
Greg Shatan - Just showing the options and that a decision is rarely final - things can be appealed - we have left out the issue of settlement. this does not refer to a specific law.
Jorge Cancio (GAC Switzerland): the more you go into details, the more differences we would see.
Kavouss Arasteh: It is very difficult to digest this complex hypothesis
Greg Shatan - please continue to work on the document.
Jorge Cancio (GAC Switzerland): Steve's point made sense - if we want to stress test the current jurisdictions - but maybe at  a later stage when we get ICANN Legals answer and the answers to the questionnaire
6.  Small Group Review of ICANN’s Past and Current Litigation
Greg Shatan - we need to get this done please sign up and analyze a case.
7.  Adjourned
Decisions:

  *   GS to forward questions for ICANN Legal to CCWG-Accountability Legal Committee after editing per discussion at this meeting.
Action Items:

  *   GS to complete editing of questions for ICANN Legal and forward to CCWG-Accountability for review.

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