[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED

Mon Jan 9 19:03:56 UTC 2017

I agree completely with David and Matthew.  In particular this:

"DM: 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?

MS: That is clearly not this group's mandate."

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

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From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of matthew shears
Sent: Sunday, January 8, 2017 2:23 PM
To: McAuley, David <dmcauley at verisign.com>; ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE
REQUESTED

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

From: 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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-- 
------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987
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