[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
parminder
parminder at itforchange.net
Mon Jan 9 05:47:04 UTC 2017
On Monday 09 January 2017 01:47 AM, farzaneh badii wrote:
> Hello
>
> Just to clarify first: I am in total agreement that ICANN should
> remain incorporated in the US. I have no intention to fight the
> imperialist windmills.
>
> While I agree that current ICANN's jurisdiction has worked for 19
> years, I think we need to add that it has worked well for the majority.
>
> For the minority, it has caused trouble occasionally which can be
> fixed by providing some solutions and it does not have to change
> ICANN's jurisdiction.
>
> I am still researching about this and need more evidence but can give
> you a couple of examples:
>
> 1. ICANN is under no obligation to get an OFAC license for registrars
> applicants who reside in sanctioned countries. Refer
> to:https://www.icann.org/resources/pages/application-2012-02-25-en
Farzaneh, A clarification; it it not that ICANN is under no obligation
to "get" an OFAC licence for registrars applicants who reside in
sanctioned countries. /*It indeed is under such an obligation*/. What
this text says is that it is under no obligation to "seek" an OFAC
licence, which in fact only makes matters worse. I am sure you meant it
in the right way, but the different verb can give the very opposite
impression to the reader. So, thought I should clarify.
Thanks, parminder
>
> "Applicant acknowledges that ICANN must comply with all U.S. laws,
> rules, and regulations. One such set of regulations is the economic
> and trade sanctions program administered by the Office of Foreign
> Assets Control ("OFAC") of the U.S. Department of the Treasury. These
> sanctions have been imposed on certain countries, as well as
> individuals and entities that appear on OFAC's List of Specially
> Designated Nationals and Blocked Persons (the "SDN List"). ICANN is
> prohibited from providing most goods or services to residents of
> sanctioned countries or their governmental entities or to SDNs without
> an applicable U.S. government authorization or exemption. ICANN
> generally will not seek a license to provide goods or services to an
> individual or entity on the SDN List. In the past, when ICANNhas been
> requested to provide services to individuals or entities that are not
> SDNs, but are residents of sanctioned countries, ICANN has sought and
> been granted licenses as required. However, Applicant acknowledges
> that ICANN is under no obligations to seek such licenses and, in any
> given case, OFAC could decide not to issue a requested license."
>
> 2. When an Iranian organizations wanted to join APRALO as an ALS (no
> application was submitted), we were informally advised that we might
> want to look into problems that OFAC arises for such application. That
> was a very informal advice probably from a not very well informed
> source. But we need to look into this. (anecdotal evidence, might have
> a very easy solution)
>
> 3. And the famous example of the Iranian ccTLD case. Which I have
> brought up on this list multiple times. What solutions do we have for
> preventing such cases happening in the future? Are we just going to
> hope that US courts will rule in favor of ICANN?
>
> This is not only an Iranian related issue. It also affects ordinary
> people in other countries who are on the sanctioned list.
>
> I don't know if providing recommendations for solving the issues I
> raised above is in the mandate of this group. All I aim for is to
> find effective solutions for problems similar to the ones I mentioned.
>
>
>
>
>
>
>
> Farzaneh
>
> On Sun, Jan 8, 2017 at 2:22 PM, matthew shears <mshears at cdt.org
> <mailto:mshears at cdt.org>> wrote:
>
> David, all
>
> I am similarly concerned. Please see inline
>
>
> On 07/01/2017 21:55, 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.
>>
>
> Agreed and I have a related concern. As far as I am aware we have
> not defined nor agreed what purpose/end the results of the
> questionnaire would be put. And how we would deal with the
> results, what weight the results would be given in determining our
> direction or way forward, or more importantly, any "findings" of
> the group (although I am a little at a loss to think how we might
> agree them).
>
> Given the lackluster support for the various alternatives on the
> last call I am concerned that there seems to be little support, or
> an acceptable level of comfort, for this approach as a whole.
>
>>
>>
>> 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.
>>
>
> This would be my preference as well, especially as some of the
> alternate versions for Q4 seems to go far beyond the relatively
> limited mandate of this group.
>
>>
>>
>> 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?
>>
>
> That is clearly not this group's mandate.
>
>>
>>
>> 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.
>>
>
> Agreed.
>
>>
>>
>> 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.
>>
>
> A reasonable place to "restart" our work, I would suggest.
>
>>
>>
>> Finally, the questionnaire is sensitive enough that we will
>> likely encounter the same debate when we run it by the full CCWG.
>>
>
> Most likely.
>
> Matthew
>
>>
>>
>> David
>>
>>
>>
>> David McAuley
>>
>> International Policy Manager
>>
>> Verisign Inc.
>>
>> 703-948-4154 <tel:%28703%29%20948-4154>
>>
>>
>>
>> *From:*ws2-jurisdiction-bounces at icann.org
>> <mailto:ws2-jurisdiction-bounces at icann.org>
>> [mailto: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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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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>
> --
> ------------
> Matthew Shears
> Global Internet Policy and Human Rights
> Center for Democracy & Technology (CDT)
> + 44 771 2472987 <tel:+44%207712%20472987>
>
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