[Ws2-jurisdiction] REMINDER: Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]

[Greg Shatan]

Kavouss,

First, let me wish you and the other members of the Jurisdiction subgroup a
Happy and Healthy New Year.  I will also extend these wishes to the other
members of the GAC, as you have chosen to send a copy of your email to that
group.

This email seems both premature and disproportionate, when only two emails
were sent in this thread expressing concerns with Question 4.  Indeed, only
a few participants had the opportunity to respond at all after my email was
sent on Friday, since we are in the midst of a holiday period.  As such,
nothing has been decided, and the responses of most participants have not
yet been received.  As such, I was quite surprised to see an email seek to
short-circuit an ongoing discussion.

The content of the email is also surprising, as it consists of a series of
dramatic and unsupported assertions that are quite corrosive, both to the
group and to many individual participants.  I think that the subgroup would
be far better served by sticking to the substance of the issues and seeking
to work together and work through the issues.  On December 25th, I wrote in
an email to the subgroup:

We need to pay attention to how we engage with each other, and we need to
> emphasize engagement on ideas and substance.
> Based on my participation in a number of working groups over the years,
> I've observed the following:  In order to develop broad support for
> positions or decisions in any working group or subgroup (including this
> one), it is necessary for participants to strive to do three things:
> -- *Listen*: Take the time to understand the views of others in the
> group; don't dismiss views without considering their substance
> -- *Persuade*:  Try to persuade others (through fact and logic) why your
> view makes sense and should be adopted; don't attempt to impose your view
> (e.g., by saying something "must" be done)
> -- *Compromise*: For a position to get broad support, it will need to
> reconcile opposing viewpoints.  Participants will often need to move away
> from initial positions and "absolutes" to find common ground; the ultimate
> result may not be exactly what any participant or group of participants
> want.
> Without listening, persuasion has no chance to work.  Without trying to
> persuade, others will not move to embrace your views.  Without compromise,
> we will not arrive at positions that have broad support.
> The focus needs to be on facts, on ideas, on reasoning together.  Focusing
> on identities and not on ideas will not lead to success.  Playing up
> divisions based on identities does not lead to common ground.
> In my view, we need to work together as a group and concentrate on
> substance in order to be productive.


​I wish that you had taken this to heart, rather than sending your email.
Perhaps you missed my email.  However, these concepts echo ICANN's Expected
Standards of Behavior
<https://www.icann.org/resources/pages/expected-standards-2016-06-28-en>,
with which you are certainly familiar:


>    - *Listen* to the views of all stakeholders when considering policy
>    issues. ICANN is a unique multi-stakeholder environment. Those who
>    take part in the ICANN process must acknowledge the importance of all
>    stakeholders and seek to understand their points of view.
>
>
>    - *Work* to build consensus with other stakeholders in order to find
>    solutions to the issues that fall within the areas of ICANN's
>    responsibility. The ICANN model is based on a bottom-up, consensus
>    driven approach to policy development. Those who take part in the ICANN process
>    must take responsibility for ensuring the success of the model by trying to
>    build consensus with other participants.
>
> The only way that this subgroup, or any subgroup or Working Group, will
succeed is through building consensus (i.e., rough consensus).  As the
Standards of Behavior note, it is the responsibility of each participant to
try to build consensus.  It is antithetical to the consensus-building
process to attempt to divide the subgroup into factions (or "camps") and to
state that a large group of participants are opponents of the
multistakeholder process (among many other unfortunate accusations,
theories and characterizations below).

If you want all four questions to be sent out, you need to help build
consensus in the subgroup that this is the right result, and you need to
help the subgroup look for a form of question 4 that would get the broadest
support.  If you look at the email at the beginning of this thread, you
will see that this is what I was trying to do (with no guarantee of
success, of course). I don't think this email helps that process, to say
the least.  As such, it would seem that this email has exactly the opposite
effect than was intended (unless the intended effect was something else
entirely, such as an attempt to cause the failure of the subgroup or an
attempt to force a result through something other than consensus-building).

Perhaps force of habit leads to looking at all ICANN participants through
the prism of nationality or national interest.  This is a very
counterproductive approach in a Cross-Community Working Group (a relatively
recent and still evolving experiment in ICANN working methods).  These
incorrect assumptions can lead to other even more negative behaviors, such
as stereotyping participants and conspiracy theories, and even attempts to
delegitimize other participants. Participants have different viewpoints and
different opinions and come from different stakeholder communities, and
should not be mushed together solely due to nationality.  Such reductive
and oppressive approaches should be disregarded and discarded, here as
elsewhere.

It is quite exceptional to assert, without any basis, that an array of
participants from different stakeholder communities are somehow "together
in a well-orchestrated arrangement" on a "special mission" "protecting a
particular group," solely based on their nationality.  I am not aware of
any such orchestration or collusion.  It is even more remarkable to assert
that this nationalistic "orchestration" extends to outside counsel engaged
to assist the CCWG in its work.

I note that this very email thread proves the fallacy of this line of
thinking.  Three US participants responded to this thread; two raised
concerns with Question 4, while the third supported Question 4.

I do not know who you speak for when you say "We," but if you do speak for
a group of participants in the subgroup, that is the only "orchestration" I
know of in this subgroup.  I hope that there are few, if any, others who
believe that this extreme approach is fruitful. I am concerned that
​the effect (if not the intent) of ​
this email
​​
could
​be to ​
sow division instead of building consensus, to undermine rather than
support the work of the subgroup,
​​
to denigrate and even delegitimize participants rather than to treat them
with respect and to "seek to understand their points of view
<https://www.icann.org/resources/pages/expected-standards-2016-06-28-en>
​​,
"
​ and to bring about the failure of this subgroup, the CCWG and even the
multistakeholder model, instead of working to support, strengthen and
succeed on all these fronts.
 ​

Instead, I hope that most, if not all, of the other participants in the
subgroup are committed to working together, to supporting the work of the
subgroup, to discussing matters of substance, and to working within
and "ensuring
the success of the [multistakeholder] model
<https://www.icann.org/resources/pages/expected-standards-2016-06-28-en>."
 This model requires commitment, a recognition that the work is sometimes
messy, and a recognition that consensus requires compromise.  It's a model
I strongly believe in, even when the results are less than optimal from my
point of view (or from the point of view of my stakeholder community).
Indeed, the strength of one's commitment to the model is revealed when
things aren't going one's way.

I hope that you will reconsider your position and continue to work with the
rest of us to support the subgroup and its work, rather than seek to stand
in its way and stop its work.  I look forward to your further positive
contributions to the substance of the issues before us as we continue our
work.

Best regards,

Greg
​

On Sat, Dec 31, 2016 at 5:35 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Dear All,
>
> People continue to push deleting Q4 .This is aggressive, selfish, narrow
> minded and divisionism. These people are all from one sector ,one country
> and  opponent of multistakeholder.
>
> They have a special mission to maintain the existing Jurisdiction which
> certainly protect them and disregard the others. If we look at their
> affiliation it is not surprising what they push for.
>
> I assure you, either all 4 Questions or no questions.
>
> Such counting is not valid due to the fact that an overwhelming majority
> are coming from one single country .These are those who impose us the
> current stru8cture of WS1 designed by lawyers from one country well paid
> and well done for that country.
>
> They are protecting a particular group ,they are all together in a
> well-orchestrated arrangement.
>
> They are, in fact against global multistahkeholder .
>
> Their actions would certainly have counter reactions by others.
>
> We will raise awareness of others in all fora.
>
> What we did to laisse everybody was a mistake. We should have be more
> cautious to oppose to such single country stakeholder.
>
> Sonner we will have open consultation on the internet in which we made
> every thing xclear to the people.
>
> Please look at the opponents of question 4 . who they are ? where they
> come from ? whom they protect .
>
> The answer is crystal clear.
>
> I am suggesting to the CCWG CO-CHAIR TO STOP SUB GROUP ACRTIVITIES .
>
> This sub group is influenced by few individual acting against thousands
> opf person who do not have the opportunity to participate and contribute.
>
> They have no expertise. They have have resources.
>
> Silence does not means no views nor does it means agreement .
>
> We oppose to the holding of the meeting of 05 Januray. It serves nothing
> but protect these people from one single country.
>
> Co- Chairs.
>
> You need to intervene and instruct and advise.-
>
> Regards
>
> Kavouss
>
>
>
> 2016-12-31 23:13 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:
>
>> Dear All,
>> People pèreventing us to progess by pushing for Q
>>
>> 2016-12-31 22:00 GMT+01:00 McAuley, David <dmcauley at verisign.com>:
>>
>>> Thank you Greg for trying to help us navigate this difficult discussion.
>>>
>>>
>>>
>>> If we somehow end up with questions 1-4 then I would support your
>>> strawman, except for the preamble where I support the proposed preamble.
>>>
>>>
>>>
>>> In the meantime I am puzzled by where we find ourselves.
>>>
>>>
>>>
>>> The poll regarding the proposed questions had 31 respondents. Questions
>>> 1-3 were supported by very wide margin, 29-2. Question 4 was supported by a
>>> very narrow margin, 17-14. And what amounted to question 5 (“If Question 4
>>> is not approved, I support sending out a questionnaire containing only
>>> Questions 1-3”) was supported by a vote of 19-8 (with 4 not answering), a
>>> far greater margin than Q4.
>>>
>>>
>>>
>>> What happened to the notion of sending Q’s 1-3 without Q4 based on the
>>> polling results? Question 5 decided Question 4 and the format of the survey
>>> already. As suggested by others, we should not waste any more time on this.
>>>
>>>
>>>
>>> I suspect the questionnaire will be the primary focus of our call on
>>> Thursday Jan. 5. I will re-read a number of e-mails on the various sides of
>>> this issue and comment then.
>>>
>>>
>>>
>>> But anticipation of that call raises a point that I believe is making
>>> our task more difficult. Participation rates are low, not just here but
>>> across WS2. Given the length and intensity of WS1 that may be
>>> understandable, nonetheless we are grappling with issues/questions that
>>> seem better suited to a forum other than WS2.
>>>
>>>
>>>
>>> Back in September I wrote on list why I thought ICANN’s location was out
>>> of our scope – I stand by that e-mail (http://mm.icann.org/pipermail
>>> /ws2-jurisdiction/2016-September/000099.html). The questions we are
>>> wrestling with on list now seem far beyond our ability to answer, much less
>>> fix.
>>>
>>>
>>>
>>> I am not saying the questions are improper or should never be raised – I
>>> am saying that they appear beyond our scope and capability.
>>>
>>>
>>>
>>> David
>>>
>>>
>>>
>>> David McAuley
>>>
>>> International Policy Manager
>>>
>>> Verisign Inc.
>>>
>>> 703-948-4154 <(703)%20948-4154>
>>>
>>>
>>>
>>> *From:* ws2-jurisdiction-bounces at icann.org [mailto:
>>> ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Greg Shatan
>>> *Sent:* Friday, December 30, 2016 2:27 AM
>>> *To:* ws2-jurisdiction at icann.org
>>> *Subject:* [EXTERNAL] [Ws2-jurisdiction] REMINDER: Focus, Working
>>> Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was:
>>> Jurisdiction Proposed Questions and Poll Results]
>>>
>>>
>>>
>>> REMINDER to READ this email and RESPOND, at least with regard to the
>>> questionnaire (see attachment).  I've slightly revised the email for
>>> clarity.
>>>
>>>
>>>
>>> To try and focus this discussion, I'll provide a strawman for how to
>>> deal with the alternatives:
>>>
>>>
>>>
>>> Preamble -- Use Alternative 1.
>>>
>>> Question 1 -- Use Alternative 1.
>>>
>>> Question 2 -- No change
>>>
>>> Question 3 -- No change.
>>>
>>> Question 4 -- Use Alternative 1.
>>>
>>>
>>>
>>> Thank you for your responses.
>>>
>>>
>>>
>>> ---------- Forwarded message ----------
>>> From: *Greg Shatan* <gregshatanipc at gmail.com>
>>> Date: Tue, Dec 27, 2016 at 3:28 PM
>>> Subject: Focus, Working Method and Revisions to Proposed Questions:
>>> RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]
>>> To: ws2-jurisdiction at icann.org
>>>
>>> All,
>>>
>>>
>>>
>>> I'm sending this to the Jurisdiction subgroup list, since this was
>>> initially send to a discussion thread on jurisdiction taking place on the
>>> CCWG list.
>>>
>>>
>>>
>>> *Please respond here, rather than there.  Thank you.*
>>>
>>>
>>>
>>> Greg
>>>
>>>
>>>
>>> ---------- Forwarded message ----------
>>> From: *Greg Shatan* <gregshatanipc at gmail.com>
>>> Date: Tue, Dec 27, 2016 at 2:56 AM
>>> Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
>>> Results
>>> To: "accountability-cross-community at icann.org" <
>>> accountability-cross-community at icann.org>
>>>
>>> All:
>>>
>>>
>>>
>>> Two quick but important points:
>>>
>>>
>>>
>>> 1.  We have strayed from the basic topic in front of us, which is to
>>> decide on the formulation of the questions to be sent out.
>>>
>>> *​​*
>>>
>>> *I have gone through the emails and meeting notes and pulled the
>>> alternative formulations and revisions in to a single document, attached to
>>> this email. *
>>>
>>>
>>>
>>> With regard to question 4, I believe that the best way to move forward
>>> is to see if one of the alternatives gets stronger support within the
>>> CCWG.  If we can get to a point where there is broad support for the
>>> question without significant opposition that may resolve issues relating to
>>> whether and when this question will be sent out.
>>>
>>>
>>>
>>> 2.  Our overall agreed-upon working method is to first identify, discuss
>>> and arrive at a list of
>>>
>>> ​problems
>>>
>>> , and then move on to identifying, discussing and arriving at a list of
>>> potential remedies for each
>>>
>>> ​problem
>>>
>>>  on our list.  We are still working on
>>>
>>> ​problems
>>>
>>> .  For a remedy to be up for discussion when we move to discussing
>>> remedies, that remedy needs to provide a solution to a
>>>
>>> ​ problem
>>>
>>> .  We can't discuss a potential remedy without having a
>>>
>>> ​ problem​
>>>
>>> it is intended to solve.  If there is a potential "remedy" but it does
>>> not solve any of our
>>>
>>> ​problems​
>>>
>>> , we won't discuss it.
>>>
>>>
>>>
>>> We've already put aside one potential "remedy" until we see whether we
>>> identify any
>>>
>>> ​problems​
>>>
>>>  it would solve -- the "remedy" of changing ICANN's jurisdiction of
>>> incorporation or headquarters location.  "Immunity" is another potential
>>> remedy that we need to deal with the same way.  Skipping forward to
>>> discussions of remedies is only slowing down our discussion of
>>>
>>> ​problems
>>>
>>> .  I strongly suggest we refocus on
>>>
>>> ​problems​
>>>
>>> , so that we can get to the discussion of remedies.  Once we've agreed
>>> on a list of
>>>
>>> ​problems​
>>>
>>> , a discussion of remedies will be more productive.
>>>
>>>
>>>
>>> Our working method of dealing with
>>>
>>> ​problems​
>>>
>>>  first and then remedies may also help us find agreement on a way to
>>> deal with question 4.  Questions 1-3 clearly deal with issues.  Perhaps a
>>> version of question 4 that is limited to asking for
>>>
>>> ​problems​
>>>
>>>  will get broader support ("Alternative 1" on the attachment may fit
>>> this description.)
>>>
>>>
>>>
>>> ​Greg​
>>>
>>>
>>>
>>> *​**The following responses were received on the Accountability list*:
>>>
>>>
>>>
>>> *Parminder*:
>>>
>>> Greg/ All
>>>
>>> I think the Alternative 1, which you take as likely candidate for
>>> broader support, is fine. I list this formulation below:
>>>
>>> What are the advantages or disadvantages, if any, relating to ICANN's
>>> jurisdiction*, particularly with regard to the actual operation of ICANN’s
>>> policies and accountability mechanisms? Please support your response with
>>> appropriate examples, references to specific laws, case studies, other
>>> studies, and analysis. In particular, please indicate if there are current
>>> or past instances that highlight such advantages or problems.
>>>
>>> (* 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 within or contacts with that
>>> country, or (c) any “choice of law” or venue provisions in agreements with
>>> ICANN.)
>>>
>>> ENDS
>>>
>>> Lets move on with it. We are spending too much time on framing a
>>> question.
>>>
>>>
>>>
>>> ​*Kavouss Arasteh: *
>>>
>>> Grec,
>>>
>>> Tks again,
>>>
>>> As I said I believe ,it is counter productive to discuss many
>>> alternative,
>>>
>>> I could agree with formulation of Parminder
>>>
>>> Regards
>>>
>>> Kavouss​
>>>
>>>
>>>
>>> *Sam Lanfranco:*
>>>
>>> Greg,
>>>
>>> Thank you for presenting alternatives for reaching agreement on a* Roadmap
>>> for Moving Forward to identify operational issues embedded in the overall
>>> “jurisdiction” issue*. It is important to recognize that what is being
>>> proposed is the choice of roadmap for moving forward. Where this takes us
>>> will flow from the assembly of evidence, the application of analysis, and
>>> the resulting array of possible options for addressing jurisdiction base
>>> operational issues.
>>>
>>> Sam Lanfranco
>>>
>>>
>>>
>>> _______________________________________________
>>> Ws2-jurisdiction mailing list
>>> Ws2-jurisdiction at icann.org
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>
>>>
>>
>
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