[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED

Mon Jan 9 11:52:07 UTC 2017

Dear Mathieu,
Tks for your comment.
But

2017-01-09 12:35 GMT+01:00 Mathieu Weill <mathieu.weill at afnic.fr>:

> Thank you Farzaneh, this is an excellent illustration of the kind of
> feedbacks our group needs to collect. I hope this helps bring the
> questionnaire discussions to a close.
>
>
>
> Best
>
> Mathieu
>
>
>
> *De :* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org] *De la part de* farzaneh badii
> *Envoyé :* dimanche 8 janvier 2017 21:17
> *À :* matthew shears
> *Cc :* ws2-jurisdiction at icann.org
> *Objet :* Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE
> REQUESTED
>
>
>
> 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
>
>
>
>  "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> 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 <(703)%20948-4154>
>
>
>
> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org <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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>
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>
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>
>
>
> --
>
> ------------
>
> Matthew Shears
>
> Global Internet Policy and Human Rights
>
> Center for Democracy & Technology (CDT)
>
> + 44 771 2472987 <+44%207712%20472987>
>
>
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