[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED
matthew shears
mshears at cdt.org
Tue Jan 10 09:49:16 UTC 2017
Greg, all
Apologies but I will be in transit at the time of the call today.
W/r/t Q 4. I do not support the alternatives proposed to date. I can,
however, see some utility in the version of question 4 proposed by David
below and would support.
Matthew
On 09/01/2017 21:17, Steve DelBianco wrote:
> On our prior Jurisdiction call, I did not support the proposed
> question 4 or any of the 7 alternatives.
>
> But I'd like to support David McAuley’s restatement of question 4
> (below) as a compromise that could allow us to gather useful evidence
> and information — not just opinions.
>
> /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./
>
>
> From: <ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>> on behalf of Paul
> Rosenzweig <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>
> Date: Monday, January 9, 2017 at 2:03 PM
>
> 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
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto: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
>
> 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.
>
>
>
>
--
------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987
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