[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED

Mon Jan 9 11:57:09 UTC 2017

Dear Mathieu,
Tks for your comment. But I am not comfortable of what you have concluded.
i.e.
Quote
" *I hope this helps bring the questionnaire discussions to a close."*
Instead ,I expected you conclude that * this helps bring the questionnaire
discussions to an acceptable compromise among the members. Pls also
consider the last part of Farzaneh and in this regard*
*As a Co-Chair, of CCWG, I EXPECTED A MORE RECOPNCILIATORY COMMENTS FROPM
YOU. disappointed TOTALLY *
*Kavouss    *

2017-01-09 12:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:

> 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-bounc
>> es 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-bounc
>> es 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.
>>
>>
>>
>> _______________________________________________
>>
>> Ws2-jurisdiction mailing list
>>
>> Ws2-jurisdiction at icann.org
>>
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>
>>
>>
>> --
>>
>> ------------
>>
>> Matthew Shears
>>
>> Global Internet Policy and Human Rights
>>
>> Center for Democracy & Technology (CDT)
>>
>> + 44 771 2472987 <+44%207712%20472987>
>>
>>
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>>
>>
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>
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