[Ws2-jurisdiction] Raphel's comments on SWG mandate

Mon May 29 18:56:10 UTC 2017

Dear Thiago,

Thank you for your reply. I do agree with what you say regarding the scope
of the inquiry; we should not unduly limit it and the consequences in terms
of accountability of the place of incorporation should be examined. If such
is what came out of my comment, then it was not my intention.

As to the* recommendations* we may formulate or the solutions we may come
up with, I still find myself maybe with a more “radical” opinion, in the
sense that even considering suggesting the possibility that ICANN be
granted jurisdictional immunity is for me going “out of bounds;” the
consequences of such a thing, were it ever to be granted, would be too
fundamental a change to ICANN’s functioning. However that is my personal
opinion.

That is not to say that concerns raised by the fact that ICANN is situated
in the US are invalid or unimportant. The last two questionnaire reviews by
Tatiana prove the contrary. It is an actual concern and should not be
ignored. Yet I think we should strive to find solutions which both satisfy
these concerns (e.g. the capacity to do business for a registrar) while
remaining as much as possible within the current framework. Maybe we will
not, but in that case I would rather say that we do not have a solution
rather than recommending a fundamental change (including requesting
jurisdictional immunity, if such a thing can be “requested” to the USG)

More generally speaking, I am more in favour of us working to pinpoint the
right problems rather than finding the “right” solutions. And I think in
terms of workload it is more manageable and more reasonable!

Now, to what extent we as a SWG (versus CCWG-A as a whole) can agree on
certain things or not, I must say that I am not fully versed in ICANN
procedures on the matter, and I will rely on your and other members of the
group’s knowledge on that!

Best,

2017-05-25 21:58 GMT+02:00 Thiago Braz Jardim Oliveira <
thiago.jardim at itamaraty.gov.br>:

> Dear Raphael,
>
> Thank you for your comments. I'll just make two brief observations about
> one suggestion you make. That is, in your words, "we should agree not to
> consider that specific point" (that specific point being, as I understood
> it, "where else [ICANN's place of incorporation or headquarters' location]
> could be better" ).
>
> Let's say this is fine. But if we were to assume that ICANN's place of
> incorporation cannot be changed, still we cannot ignore the fact that
> ICANN's localisation does have an impact on the actual operation of
> policies and functions by ICANN. And according to the Jurisdiction section
> of Annex 12 of the CCWG-Accountability Final Report, where the mandate of
> the SWG is set in detail, the influence of that very fact (ICANN's
> location) appears among the "main issues" to be investigated by the SWG (-
> it is certainly not excluded from it). This is how the relevant part reads:
> "the main issues that need to be investigated within Work Stream 2 relate
> to the influence that ICANN´s existing jurisdiction may have on the actual
> operation of policies and accountability mechanisms."
>
> Now, assuming as we may that ICANN's headquarters are not going to move
> anywhere in the world, it is still within our mandate to examine the
> consequences of ICANN's physical presence within California (and
> particularly the presence there of its main business activities and the
> like) on ICANN's ability to perform its functions. It is only once this
> impact and the related problems have been duly identified and assessed,
> that we can start considering how to solve or mitigate them. The solutions,
> obviously, may not require a change of ICANN's place of incorporation, for
> example, and that's indeed why some people have started considering ideas
> as the granting of jurisdictional immunities to ICANN, etc. So, even if we
> were to assume that a change of ICANN's place of incorporation cannot
> happen, this does not preclude the SWG from examining other solutions to
> the problems it is mandated to identify and assess, nor for that matter
> does it preclude the SWG from identifying and assessing these problems.
>
> The above is consistent with the approach the SWG appears to be following,
> which is to identify problems before proposing the remedies. So, again, the
> alleged impossibility of changing ICANN's main place of business, among
> other things, in no way limits our mandate.
>
> A second remark I would like to make is this: I think you are right,
> Raphael, when you say that it would take agreement among the SWG members to
> exclude from our mandate "that specific point" related to ICANN's location.
> In fact, to the extent the SWG is mandated to consider among other things
> "that specific point", an agreement to change and limit the group's mandate
> perhaps should not even come from the SWG, but from the CCWG-Accountability
> or even higher instances.
>
> Avec mes meilleures salutations,
>
> Thiago
>
>
> Thiago Braz Jardim Oliveira
> Divisão da Sociedade da Informação
> Ministério das Relações Exteriores
> +55 61 2030 6389
>
>
> -----Mensagem original-----
> De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org] Em nome de ws2-jurisdiction-request at icann.org
> Enviada em: quinta-feira, 25 de maio de 2017 14:15
> Para: ws2-jurisdiction at icann.org
> Assunto: Ws2-jurisdiction Digest, Vol 11, Issue 27
>
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> Today's Topics:
>
>    1. Continuation of the discussion on SWG mandate
>       (Rapha?l BEAUREGARD-LACROIX)
>    2. Questionnaire analysis (Thiago Braz Jardim Oliveira)
>    3. Re: Questionnaire analysis (Arasteh)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Thu, 25 May 2017 16:50:11 +0200
> From: Rapha?l BEAUREGARD-LACROIX
>         <raphael.beauregardlacroix at sciencespo.fr>
> To: ws2-jurisdiction <ws2-jurisdiction at icann.org>
> Subject: [Ws2-jurisdiction] Continuation of the discussion on SWG
>         mandate
> Message-ID:
>         <CANu+Qfzy83h5gU9oPb=DQ_BnVtuPbZOAc2gmpn8WbGoGdn-EcA@
> mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> 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,
>
> --
> Rapha?l 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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> ------------------------------
>
> Message: 2
> Date: Thu, 25 May 2017 16:21:32 +0000
> From: Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br>
> To: "'ws2-jurisdiction at icann.org'" <ws2-jurisdiction at icann.org>
> Cc: Divis?o da Sociedade da Informa??o - Itamaraty
>         <di at itamaraty.gov.br>
> Subject: [Ws2-jurisdiction] Questionnaire analysis
> Message-ID:
>         <76E681D54F047F418827A4CE1AA542A4A1A87E00 at URANO01.itamaraty.local>
> Content-Type: text/plain; charset="iso-8859-1"
>
> Dear all,
>
> As I understand it, there were no objections in our last call to offering
> respondents an opportunity to respond to questionnaire/comments' analysis.
> Can I ask you how we are going to proceed on this? There have already been
> two calls in which comments were examined and perhaps we should start
> calling on their authors to participate in our next calls, should they wish.
>
> On a related point, our last call lingered on for perhaps too long in a
> discussion about the subgroup's mandate (mea culpa), and when the time came
> for an analysis of Just Net Coalition's questionnaire, not only we were
> left with little time for a more in-depth debate in response to the
> analysis provided by CW, but also the group was not actually provided with
> much of the substance of Just Net Coalition's questionnaire. Greg himself
> noticed that. So what I suggest is for us to come back to that
> questionnaire as we give Just Net Coalition, and I'm hoping they will
> accept it, the opportunity to comment on it.
>
> Best,
>
> Thiago Jardim
>
>
>
> Thiago Braz Jardim Oliveira
> Divis?o da Sociedade da Informa??o
> Minist?rio das Rela??es Exteriores
> +55 61 2030 6389
>
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> ------------------------------
>
> Message: 3
> Date: Thu, 25 May 2017 19:14:47 +0200
> From: Arasteh <kavouss.arasteh at gmail.com>
> To: Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br>
> Cc: Divis?o da Sociedade da Informa??o - Itamaraty
>         <di at itamaraty.gov.br>,  "ws2-jurisdiction at icann.org"
>         <ws2-jurisdiction at icann.org>
> Subject: Re: [Ws2-jurisdiction] Questionnaire analysis
> Message-ID: <24B09272-D981-4065-9920-6A195BD99EE6 at gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> Dear All
> I fully agree with the two points raised by Thiago,in particular, devoting
> more time to analysis done by Christopher  on responses  given by net
> coalition while inviting  them to attend the call if they so decide
> Regards
> Kavouss
> Sent from my iPhone
>
> > On 25 May 2017, at 18:21, Thiago Braz Jardim Oliveira <
> thiago.jardim at itamaraty.gov.br> wrote:
> >
> > Dear all,
> >
> > As I understand it, there were no objections in our last call to
> offering respondents an opportunity to respond to questionnaire/comments'
> analysis. Can I ask you how we are going to proceed on this? There have
> already been two calls in which comments were examined and perhaps we
> should start calling on their authors to participate in our next calls,
> should they wish.
> >
> > On a related point, our last call lingered on for perhaps too long in a
> discussion about the subgroup's mandate (mea culpa), and when the time came
> for an analysis of Just Net Coalition's questionnaire, not only we were
> left with little time for a more in-depth debate in response to the
> analysis provided by CW, but also the group was not actually provided with
> much of the substance of Just Net Coalition's questionnaire. Greg himself
> noticed that. So what I suggest is for us to come back to that
> questionnaire as we give Just Net Coalition, and I'm hoping they will
> accept it, the opportunity to comment on it.
> >
> > Best,
> >
> > Thiago Jardim
> >
> >
> >
> > Thiago Braz Jardim Oliveira
> > Divis?o da Sociedade da Informa??o
> > Minist?rio das Rela??es Exteriores
> > +55 61 2030 6389
> >
> > _______________________________________________
> > Ws2-jurisdiction mailing list
> > Ws2-jurisdiction at icann.org
> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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-- 
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
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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