[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED

Sun Jan 8 14:02:18 UTC 2017

David, pl see some responses inline.

On Sunday 08 January 2017 03:25 AM, McAuley, David wrote:
>
> 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.  /
>

When we proposed release from NTIA's oversight and replacement of it by
a new community accountability mechanism, did we do it on the basis of

(1) documented instances where ICANN was unable to pursue its mission
because of its direct oversight by NTIA.
(2) documented existence of alternative oversight mechanisms that could
replace NTIA oversight, and not prevent ICANN from pursuing its mission ?

At least I am not aware of any such background, but you may want to
refresh my memory.

If not, why does one kind of institutional change involving ICANN -
transiting from direct organisational oversight by a dept of US gov -  
does not require such documented proofs, as mentioned above, but another
kind - possible transiting from the jurisdictional oversight of US gov -
requires these documented proof? Do you have a logic for this?

Till about 3 years ago, before Snowden precipitated certain events, one
heard the same arguments about why nothing is wrong with NTIA oversight,
whenever some of us protested against it. We were asked to show
demonstrated evidence etc etc of how it has interfered with ICANN's
mission/ policies etc, and our objections pooh poohed. And then suddenly
when US gov itself thought it useful to let go of NTIA oversight,
everything changes, and it begun to seem that nothing could be more
worthwhile a thing then to transit from NTIA oversight (mind it: without
any production of any new of old documents proofs about above said things)

Is it just because one kind of change has been favoured by the 'ICANN
insider community' and another isnt? Or do we have to always to just
wait for signals from that all-powerful US gov, to "know" what is good
for the global Internet and what not?

I take part in this current process as it purports to represent the
interests of the global public, and not of the "insider ICANN
community". Hope we can keep working in the global public interest, and
always take that as the beacon that leads us. If we are to agree that
something is in global public interest, we will recommend it. It is not
for us to decide what ICANN or US gov likes it or not.

parminder

> //
>
>  
>
> 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. 
>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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