[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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