[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED

Sun Jan 8 06:59:21 UTC 2017

Kavouss,

Please help me understand your objection to the footnote (which has been in
the proposal for quite some time).  It is an accurate description of
"ICANN's jurisdiction" as it currently exists.  It is a condensed version
of the "Multiple Layers of Jurisdiction" which we have already discussed at
length.

Each of the questions in the Questionnaire is asking about ICANN's
jurisdiction as it currently exists.  The references to "ICANN's
jurisdiction" in each question is not a reference to any hypothetical
jurisdiction, it is a reference to the facts.  I don't see how this biases
any response.  It's critical that all respondents have a common
understanding of what "ICANN's jurisdiction" is; otherwise, the responses
will be useless.

To respond to your specific concern, when we are talking about "ICANN's
jurisdiction" in the context of agreements, we are only talking about
agreements to which ICANN is a party.  If neither of the "parties
concerned" is ICANN, then we are no longer talking about "ICANN's
jurisdiction."

As to who will answer the questions, my first response is that there is no
way to know, and any answer is merely idle speculation.  I don't think
there is any basis in fact to assert that the "private sector" (which
covers a number of different types of stakeholders) has a superior position
with regard to "ability, power, coordination and mobilization," over e.g.,
governments or civil society.  This is merely a stereotype.

I have long observed that there are often stereotypes that each group at
ICANN holds about other groups.  As you make your way around ICANN, you
will eventually learn the stereotyped view that each group holds about each
other group (including your own group), and you will also eventually learn
that their stereotyped views of your group are just as flawed and unhelpful
as the stereotyped views your own group holds about other groups.  The
sooner we stop indulging in stereotypes, the better.

My second response is that I expect a broad set of responses from all
sectors.

Best regards,

Greg

On Sat, Jan 7, 2017 at 6:18 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Greg
> Thank you very much for your effort
> David
> I strongle disagree with youp instance not to have question 4
>  Either ALL  questions or NO questions
> Greg I also strongly DISAGREE WITH YOUR COMENTS
> Quote
> *  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*.
> Unquote
> Your suggestions advocate a bias to the respondents.
> Please tell me Who answer to the questions
> Mainly privâtes sector with all its ability, power, coordination and
> mobilization
> Please kindly revise the Astérix part to be neutral in saying that
> Do you believe that ,to be neutral and impartial **any choice of law” or
> venue provisions in agreements  with the parties concerned. AND NOT  IN
> AGREEMENT WITH ICANN  since I do not believe we should talk about agreement
> with ICANN . Why ICANN.*
> *AGREEMENT ON THE CHOICE OF LAW should be left to the parties concerned.*
> *Regards*
> *Kavouss *
>
> 2017-01-07 22:55 GMT+01:00 McAuley, David <dmcauley at verisign.com>:
>
>> 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 <(703)%20948-4154>
>>
>>
>>
>> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounc
>> es 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.
>>
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>
>>
>
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>
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