[Ws2-jurisdiction] Continuation of the discussion on SWG mandate

[Raphaël BEAUREGARD-LACROIX]

Dear all,

I could not attend last call, but I had a look at the transcript and here
are my 2c. This is also meant to serve as a start a discussion, so feel
free to debate, challenge, refute, ...

I don't have the ICANN experience that some of you have, but from what I
understand it is preferable to keep ourselves focused on our precise task,
which means *excluding *from consideration re/incorporation (or whatever
you want to call it) of ICANN outside of California and/or US.

Not because this precise issue is not an issue. I am convinced it is, and
should certainly be discussed, especially considering long term. However we
will not "square" this "circle" in this subgroup. I think if we want to
produce something that will see some use, we should focus on how
jurisdiction issues interact with the accountability of ICANN, assuming
that ICANN stays as it is roughly speaking, so with the current
organisational setup.

It is true that in jurisdiction we can include the location where ICANN is
incorporated. This has an effect on accountability, to the extent of
California corporations law and any other Californian or US federal law I
might not be aware of. However I don't think we are there to consider *where
else *could be better, because the options are just too many, too different
and entail radical change in the foundations of ICANN which are just beyond
what we are supposed to do, I think. So rather than radical changes, we
should aim at improvements of "the existing," so mechanisms, structures,
contracts...

So to conclude on that point, we should not overly restrict what layers of
jurisdiction we consider, but I think we should agree not to consider that
specific one.

Thiago in the last call rightly mentioned that "accountability" is an open
and equivocal concept. I think we should interpret it broadly. In that
sense and referring to the CCWG charter that Greg circulated before,
accountability can be framed as a system of "checks and balances." While
this concept is distinctively American, I think we can agree that
accountability evokes responsibility and justification for action. I would
conceive improving ICANN's accountability as a process that would
improve *predictability
*of ICANN's actions as well as improve the understanding stakeholders have
of ICANN's interests, motives, reasons for doing A and not B, etc. In that
sense accountable shares some meaning with transparent, but not completely.
Transparency is one component of accountability. "Raw" transparency is
rather useless, to the extent that the ordinary person involved with ICANN
at volunteer level is not able to sift through the mass of documents or
understand what is going on.

If we now consider jurisdiction, which is also a broad and equivocal
concept, it may intersect accountability at several levels (the "layers" of
jurisdiction). I don't think it is possible to realise the extent of this
intersection just as a reflection exercise. In that regard I think that
both the questionnaire and the case studies are useful so to distinguish
what these intersection points may be. These two things (cases and
questionnaires) are pretty much the only "empirical" means that we have at
our disposal and they are certainly better than just abstract reflections
on the question of jurisdiction and accountability...

And finally to contribute to something that was discussed in the call, I
think it is a good idea to further inquire on the questionnaire responses
with the respondent, when such inquiry can shed further light on the
response. So these discussions should not be a debate with the respondent
over their answers, but more us listening to what they have to say (again
when relevant; if answers are just straight no's then whatever)

Best,

-- 
Raphaël Beauregard-Lacroix
Sciences Po Law School 2017
LinkedIn
<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> -
@rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
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