[Ws2-jurisdiction] Jurisdiction Questionnaire: RESPONSE REQUESTED

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Tue Jan 10 13:32:07 UTC 2017


Likewise stuck offline. . Agree with Matt
--
Paul Rosenzweig
Sent from myMail app for Android Tuesday, 10 January 2017, 04:49AM -05:00 from matthew shears  mshears at cdt.org :

>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 >
          on behalf of Paul Rosenzweig < 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 ] 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 ] 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) and to the
                        extent set forth in the CCWG-Accountability Final
                          Report , [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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>Ws2-jurisdiction at icann.org
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