[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. 
>>
>>
>>
>>     _______________________________________________
>>     Ws2-jurisdiction mailing list
>>     Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
>>     https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>     <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>
>     -- 
>     ------------
>     Matthew Shears
>     Global Internet Policy and Human Rights
>     Center for Democracy & Technology (CDT)
>     + 44 771 2472987 <tel:+44%207712%20472987>
>
>     _______________________________________________ Ws2-jurisdiction
>     mailing list Ws2-jurisdiction at icann.org
>     <mailto:Ws2-jurisdiction at icann.org>
>     https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>     <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> 
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170109/512cca0d/attachment-0001.html>


More information about the Ws2-jurisdiction mailing list