[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED

Sat Jan 7 21:55:18 UTC 2017

In my personal opinion we are wandering blindly into unwise, unacceptable territory – very possibly inviting a quagmire of suppositions and opinions that would pose the near certainty of derailing our work.

We should not let the perfect be the enemy of the good, but I am unconvinced that the questionnaire as currently proposed could actually lead to a “good” outcome so I don’t see the good at peril here.

If we conclude that a questionnaire must go out then I support questions 1-3 as widely supported in the survey we did  – with no question 4.

If any form of Q4 is to be included it must be fact-based, not opinion-based. Here is what I suggest as a compromise path to resolve the Q4 issue – basically one question in two parts:

Are you aware of any material, documented instance(s) where ICANN has been unable to pursue its Mission because of its jurisdiction? If so, please provide documentation.

Are you aware of and able to document the existence of an alternative jurisdiction where ICANN would not be so prevented from pursuing its Mission? If so, please provide documentation.

Such a questionnaire could of course lead to a full-scale legal due-diligence exercise for suggested alternatives as we recently did with respect to California in Work Stream One (because we would need a demonstration that any such alternative, while possibly solving one perceived problem, did not allow others).

Current jurisdiction has worked well for nineteen years and we just finished reorganizing things at great expense to better fit within California with enforceable Empowered Community powers. Is WS2 to change that?

I think we have a different mission than that to accomplish by June. Our mission is essentially to look at settlement of dispute jurisdiction issues and right now that seems like plenty to try to get done by June.

That Q4 is still under consideration, after failing to gain a clear consensus and even getting substantially less support than question 5 (which basically asked if Q’s 1-3 should go out if Q4 was rejected), is puzzling. How can we release Q4 in these circumstances?

This is too important to “wing it and let’s see what happens.” We don’t do survey questions for a living. Don’t we at least need to guarantee that our questions stay within ICANN’s mission and call for answers to do the same? Mathieu, as I recall, said in chat that respondents often go beyond the bounds of what is asked – that tendency itself seems enough to delete Question 4 at the very least.

We should just look at the jurisdiction of contracts and dispute settlements, as paragraph 06 of the Final Report puts it.

Finally, the questionnaire is sensitive enough that we will likely encounter the same debate when we run it by the full CCWG.

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: Saturday, January 07, 2017 1:23 PM
To: ws2-jurisdiction
Subject: [EXTERNAL] [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED

All,

We made some good progress on our call on Friday, January 6.  Following a wide-ranging discussion, we were able to make some headway on refining the draft questionnaire.  I encourage those who missed the call to review the recording and notes.

Specifically, we came to a preliminary conclusion on revising the Preamble and Question 1, subject to comment on this list and a final discussion on our next call (Tuesday, January 10 at 13:00).  Question 2 had no revisions suggested, and Question 3 had only one revision suggested.

The Preamble and Questions 1, 2 and 3 (with the proposed revision in "track changes") are in the first document below (Word and PDF documents) and also in text below.  Please review this version of the Preamble and Questions 1-3 and provide support (or lack of support) and/or comments for this portion.

We also discussed several aspects of Question 4, including the purpose of the question; whether the question is different in nature from Questions 1-3; whether or not the question should be included in this questionnaire, a subsequent questionnaire or not at all; the types of responses desired (and the types expected); and the drafting of the question itself.  With these topics and seven drafting alternatives (and the ability to pick and choose elements of those alternatives), this required more time than we had left on the call.  Therefore, we did not come to any preliminary conclusions on Question 4.

The drafting alternatives for Question 4 (including the current version) are in the second draft document (Word and PDF).  Please look at the alternatives carefully, particularly if you have not supported sending question 4 in its current form.  Please review the options for Question 4 and respond, indicating (a) Which version(s) of Question 4 you could support and which you would object to, and (b) If the answer to (a) is "none," how you would change or combine one or more alternatives in order to support it.

We will conclude this discussion on our call of January 10, so please provide your thoughts and responses before then.  Thank you.

Greg

VERSION OF PREAMBLE AND QUESTIONS 1-3 FOR REVIEW

PREAMBLE

The newly-adopted ICANN bylaws created several Work Stream 2 accountability subgroups. One of them, the subgroup on Jurisdiction, is posing the questions below for community input into the subgroup’s deliberations.

As directed by Bylaw Article 27, Section 27.1(b)(vi)<https://www.icann.org/resources/pages/governance/bylaws-en/#article27> and to the extent set forth in the CCWG-Accountability Final Report<https://community.icann.org/pages/viewpage.action?pageId=58723827&preview=/58723827/58726532/Main%20Report%20-%20FINAL-Revised.pdf>,[1] the Jurisdiction subgroup is addressing jurisdiction*-related questions, including how choice of jurisdiction and applicable laws for dispute settlement impact ICANN's accountability and the actual operation of policies.

To help the subgroup in these endeavors we are asking you to consider and respond to the following specific questions. In this regard, the subgroup is asking for concrete, factual submissions (positive, negative, or neutral) that will help ensure that the subgroup’s deliberations are informed, fact-based, and address real issues. The subgroup is interested in all types of jurisdiction-related factual experiences, not just those involving actual disputes/court cases.

QUESTION 1

Has your business, your privacy or your ability to use or purchase domain name-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 “affected” may refer to positive and/or negative effects.

QUESTION 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 “affected” may refer to positive and/or negative effects.

QUESTION 3

Do you have copies of and/or links to any verifiable 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.  Please provide either first-person accounts or reliable third-party accounts such as news reports; please do not provide your own version of events.

  _____

[1] See CCWG-Accountability Main Report, paragraphs 6 and 234, and Annex 12, paragraphs 25-31.

*  For this Questionnaire, “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.

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